The opinion of the court was delivered by: Kimba M. Wood, U.S.D.J.
On October 28, 2010, the Court remanded this case to the Supreme Court for the State of New York, County of New York. In so doing, the Court awarded Plaintiff reasonable attorneys' fees and costs incurred with respect to Plaintiff's Motion to Remand, pursuant to 28 U.S.C. § 1447(c). The Court maintained jurisdiction over this matter only to the extent necessary to consider the issue of costs and attorneys' fees. (See Opinion & Order, Dckt. Entry No. 18.)
Defendant has moved for reconsideration of the Court's October 28, 2010 order granting Plaintiff costs and attorneys' fees incurred in connection with Plaintiff's Motion to Remand. (See Defendant's Memorandum of Law in Support of its Motion for Reconsideration, Dckt. Entry No. 21.) Defendant has also filed a Memorandum of Law Opposing Plaintiffs' Application for Costs and Attorneys' Fees. (See Dckt. Entry No. 19.)
For the reasons that follow, Defendant's motion for reconsideration is DENIED, except that attorneys' fees are reduced to $10,000.00.
I. Legal Standard on Motion for Reconsideration
Federal Rule of Civil Procedure 54(b) provides that a court's order or decision "is subject to revision at any time before the entry of judgment." A party to the action can request a revision by filing a motion for reconsideration. Fed. R. Civ. 54(b); S.D.N.Y. Local Civ. R. 6.3.
"Reconsideration of a court's previous order is an 'extraordinary remedy to be employed sparingly in the interests of finality and conservation of scarce judicial resources.'" Parrish v. Sollecito, 253 F. Supp. 2d 713, 715 (S.D.N.Y. 2003) (quoting In re Health Mgmt. Sys., Secs. Litig., 113 F. Supp. 2d 613, 614 (S.D.N.Y. 2000)). "Whether to grant or deny a motion for reconsideration . . . is in the sound discretion of a district court judge." Greenwald v. Orb Communications & Marketing, Inc., No. 00 Civ.1939, 2003 WL 660844, at * 1 (S.D.N.Y. Feb. 23, 2007) (internal quotation marks and citation omitted).
A district court should limit Rule 54(b) revisions to instances in which "there is an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent a manifest injustice." Official Comm. of Unsecured Creditors of Color Tile, Inc. v. Coopers & Lybrand, LLP, 322 F.3d 147, 167 (2d Cir. 2003). A party moving for reconsideration must set forth "the matters or controlling decisions which [it] believes the court has overlooked." S.D.N.Y. Local Civ. R. 6.3. The party must demonstrate that "the Court overlooked controlling decisions or factual matters that were put before it on the underlying motion." Eisemann v. Greene, 204 F.3d 393, 395 n.2 (2d Cir. 2000) (citation omitted). Courts should not grant a motion for reconsideration in order to allow a party to "advance new facts, issues or arguments not previously presented to the Court." Brown v. Barnhart, No. 04 Civ. 2450, 2005 WL 1423241, at *1 (S.D.N.Y. June 16, 2005).
II. Analysis A. The Awarding of Attorneys' Fees and Costs
With respect to the Court's October 28, 2010 order awarding Plaintiff costs and attorneys' fees incurred in connection with Plaintiff's Motion to Remand, Defendant has presented no legal or evidentiary basis for reconsideration.
Defendant's chief argument in its motion for reconsideration is that its removal of the matter to federal court was "an inadvertent oversight and honest mistake on the part of [the Defendant]." (Def. Mem. Dckt. Entry No. 21, at 1.) Defendant "wants to make clear that it did not file its removal petition without the upmost good faith that the removal was proper." (Id.) Defendant emphasizes that it followed the discovery schedule, produced representatives for depositions, and responded promptly after it realized that the requirements of diversity jurisdiction were not met. (Id. at 2-3.)
The Supreme Court has held that a court may award attorneys' fees when the party removing an action to federal court lacked an objectively reasonable basis for seeking removal. Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005). "Bad faith on the part of the removing party is not necessary in order for the non-removing party to recover fees." Arabesque v. Capacity LLC, No. 07 Civ. 2042, 2008 WL 681459, at *2 (S.D.N.Y. Mar. 10, 2008). Indeed, "the Second Circuit has emphasized the objective nature of the inquiry, observing that the statute authorizing recuperation of fees and costs incurred in defending against removal actions 'makes no reference at all to the state of mind or intent of the party removing the action, instead focusing . . . on the mere absence of subject matter jurisdiction.'" G&H Partners AG v. Wextrust Capital, LLC, No. 07 Civ. 9803, 2008 WL 65102, at *2 (S.D.N.Y. Jan. 4, 2008) (quoting Morgan Guar. Trust Co. v. Republic of Palau, 971 F.2d 917, 923 (2d Cir.1992)).
Thus, although the Court accepts Defendant's assertion that it was
operating in good faith when it removed this action to federal court,
the Court must focus "on the mere absence of subject matter
jurisdiction." (Id.) Here, it is clear that Defendants did not have a
reasonable basis for removal, because removal was "predicated upon a
diversity of citizenship that clearly does not exist." *fn1
Syms, Inc v. IBI Sec. Service, Inc., 586 F. Supp. 53, 56-57
Moreover, in making a determination of whether to award attorneys' fees incurred in connection with a Defendant's improper removal, "courts apply a test of overall fairness given the nature of the case, the circumstances of the remand, and the effect on the parties." Dacey v. Morgan Stanley Dean Witter & Co., 263 F. Supp. 2d 706, 712 (S.D.N.Y. 2003) (citations omitted). Here, (1) Plaintiff sent notice to opposing counsel that removal was improper due to lack of diversity jurisdiction, failure to meet the amount in controversy requirement, and timeliness; (2) Defendant removed the action anyway; (3) Defendant did not consent to remand until one month after receiving notice of the defect in diversity jurisdiction; and (4) Plaintiff alleges ...