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Sinclair v. City of Rochester

October 18, 2007

CAROLYN SINCLAIR, ET AL., PLAINTIFFS,
v.
CITY OF ROCHESTER, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Siragusa, J.

DECISION AND ORDER

INTRODUCTION

On June 20, 2007, by Decision and Order (# 11) the Court remanded this case, which had been untimely removed by Defendants. Now before the Court is Plaintiffs' motion for attorney fees and costs (# 12). For the reasons stated below, Plaintiffs' motion is denied.

BACKGROUND

The Court set forth the procedural history of this case in its prior Decision and Order, familiarity with which will be presumed. For the purposes of this motion, the Court highlights some of the prior background.

In its decision remanding this case, the Court determined that the 30-day limitation of 28 U.S.C. § 1446(b) for a motion to remand began to run on April 17, 2007, the date on which defense counsel acknowledged receipt of the proposed order, prepared by Plaintiff's counsel, granting permission to file the amended complaint. Decision and Order, Sinclair v. City of Rochester, No. 07-CV-6277 (W.D.N.Y. Jun. 20, 2007), at 5. The Court determined that defense counsel unquestionably "through service or otherwise," had received "a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.." 28 U.S.C. § 1446(b). Id.

On July 19, 2007, Plaintiffs filed the subject motion for attorney fees and costs. Plaintiffs made their application both pursuant to the removal statute, 28 U.S.C. § 1447(c), and as "prevailing parties" under 42 U.S.C. § 1988, the Civil Rights Attorney's Fees Awards Act of 1976, P.L. 94-559. Defendants oppose the application on four grounds:

* that the motion is untimely under Federal Rule of Civil Procedure 54(d)(2)(B);

* that Defendants' removal was objectively reasonable;

* that Plaintiffs are not prevailing parties pursuant to 42 U.S.C. § 1988; and

* that Plaintiffs' claimed fees are excessive.

STANDARDS OF LAW

Remand Statute Attorney's Fee Authorization

The remand statute provides for the discretionary award of ...


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