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MERMELSTEIN v. MAKI

July 23, 1993

ESTELLE MERMELSTEIN, Plaintiff,
v.
JAMES THEODORE MAKI and N.W. DAIRY FORWARDING CO., Defendants.


SOTOMAYOR


The opinion of the court was delivered by: SONIA SOTOMAYOR

SONIA SOTOMAYOR, U.S.D.J.

 Defendants removed this action to federal court on February 16, 1993. Plaintiff moved to remand pursuant to 28 U.S.C. § 1447(c), contending that the removal was untimely. By Opinion and Order dated May 20, 1993 (the "May 20 Opinion"), I concluded that "factual issues, including who received the pleadings and when they were received," cautioned against my ruling on plaintiff's motion, and I directed defendants to supplement the "paltry record" then before me. At a hearing held for that purpose on June 28, 1993, defendants failed to come forward with sufficient evidence to demonstrate that removal had been effected within the thirty-day period specified by 28 U.S.C. § 1446(b). As a result, I stated that for the reasons set forth in the May 20 Opinion, I would remand the case, pending resolution of plaintiff's request for costs and fees.

 In her motion for costs and fees, plaintiff identifies no costs but itemizes 75 hours of attorney time, billed at $ 150 per hour, for a total request of $ 11,250 for work arising from the remand. That motion is now before me, and, for the reasons discussed below, is DENIED.

 I. Discussion

 28 U.S.C. § 1447(c) states:

 
A motion to remand the case on the basis of any defect in removal procedure must be made within 30 days after the filing of the notice of removal under section 1446(a). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded. An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal. A certified copy of the order of remand shall be mailed by the clerk to the clerk of the State court. The State court may thereupon proceed with such case.

 (emphasis added). The first sentence is limited to motions to remand based on "any defect in removal procedure," whereas the second sentence is limited to remands based on the absence of subject matter jurisdiction. Defendants urge that the underscored sentence, which provides for costs and fees, applies only to orders of remand based on lack of subject matter jurisdiction, the topic of the previous sentence. Plaintiff, by contrast, contends that like the remainder of the paragraph, the underscored sentence applies to all orders of remand -- and that costs may therefore be awarded even where, as here, remand was based on the untimeliness of removal.

 I conclude for two reasons that the underscored sentence is in pari materia with the subsequent portions of the paragraph, and that the fee provision therefore applies to all orders of remand. First, there is nothing in the language of the underscored sentence to suggest that it only applies to remands based on lack of subject matter jurisdiction. Second, the structure of the statute supports plaintiff's interpretation. The first two sentences of the statute delineate the two alternative grounds for remand, with a time frame for each. The remainder of the statute, however, references orders of remand, without limitation -- and therefore those provisions apply to all such orders.

 The commentary on the 1988 amendment confirms this interpretation as well:

 Commentary on 1988 Revision by David D. Siegel at 28 U.S.C.A. § 1447, p. 62 (West Supp. 1993).

 In support of their argument that the costs and fees provision is limited to remands predicated on the absence of subject matter jurisdiction, defendants rely on Morgan Guar. Trust v. Republic of Palau, 971 F.2d 917, 924 (2d Cir. 1992), in which the Second Circuit discussed the 1988 amendments to 28 ...


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