United States District Court, S.D. New York
OPINION & ORDER
F. KEENAN, UNITED STATES DISTRICT JUDGE.
the Court is Plaintiff Jared McLaughlin's
(“Plaintiff”) motion, pursuant to 28 U.S.C.
§ 1447(c), for costs. Plaintiff makes his motion in
connection with the Court's remand of the case to the
Supreme Court of the State of New York, New York County after
removal by Defendants Infor (US), Inc., Stuart Smith, Jeffrey
Wayland, and Darren Saumur (“Defendants”). For
the reasons stated below, the Court grants Plaintiff's
motion for costs in the amount of $294.66.
April 24, 2017, Plaintiff filed a complaint in the Supreme
Court of the State of New York, New York County against
Defendants. (State Court Records and Proceedings Pursuant to
Local Rule 8.1 at 1, ECF No. 6 (filed May 16, 2017).)
Plaintiff essentially alleges that Defendants failed to pay
Plaintiff the required commissions, bonuses, and other
compensation owed under his employment contract. On May 15,
2017, Defendants filed a notice of removal to this Court.
(See Notice of Removal, ECF No. 1 (filed May 15,
notice of removal premised federal jurisdiction on complete
diversity under 28 U.S.C. § 1332. (See id.
¶ 6.) On May 25, 2017, Plaintiff moved to remand the
case to New York state court because removal was improper
under 28 U.S.C. § 1441(b)(2), which provides: “A
civil action otherwise removable solely on the basis of the
jurisdiction under section 1332(a) . . . may not be removed
if any of the parties in interest properly joined and served
as defendants is a citizen of the State in which such action
is brought.” (Pl.'s Mem. of L. in Supp. of Mot. for
Remand, ECF No. 13 (filed May 25, 2017).) In his motion to
remand, Plaintiff moves for actual costs and expenses
incurred as a result of the removal under 28 U.S.C. §
1447(c), which authorizes a remanding court to “require
payment of just costs and any actual expenses, including
attorney fees, incurred as a result of the removal.”
(See id. at 9-10.) On June 2, 2017, Defendants filed
a motion to withdraw the notice of removal, in which they
acknowledged that at least one Defendant is a citizen of the
State of New York. (Motion to Withdraw Notice of Removal, ECF
No. 18 (filed June 2, 2017).) On June 5, 2017, the Court
granted Defendants' motion to withdraw the notice of
removal, ordered that the action be remanded back to New York
Supreme Court, and retained jurisdiction over Plaintiff's
application for costs. (See Order on Defs.' Mot.
to Withdraw, ECF No. 23 (filed June 5, 2017); Order, ECF No.
24 (filed June 5, 2017).)
22, 2017, Plaintiff sent his motion for costs in the amount
of $1, 157.78 to the Court, along with sixteen receipts for
various expenses. (See Notice of Mot. to Refund Fees
and Costs, ECF No. 29 (filed July 7, 2017) [hereinafter
Motion for Costs]; Proposed Order to Return Fees and Costs,
ECF No. 29-1 at 10 (filed July 7, 2017).) Plaintiff argues
that he is entitled to costs because removal was improper
under 28 U.S.C. § 1441(b)(2). (Mot. for Costs at 1.)
Defendants argue that costs are not warranted because
Plaintiff has failed to explain the basis for the costs he is
seeking or explain how they are related to the removal and
remand of this case. (Defs.' Mem. of L. in Opp'n to
Pl.'s Mot. to Refund Fees and Costs at 3, ECF No. 31
(filed July 7, 2017).) On October 18, 2017, Plaintiff filed
an affidavit in support of his motion to refund costs. (Reply
Aff. in Supp. of Mot. to Refund Fees and Costs, ECF No. 36
(filed Oct. 18, 2017) [hereinafter McLaughlin Aff.].)
order remanding [a] case may require payment of just costs
and any actual expenses, including attorney fees, incurred as
a result of the removal.” 28 U.S.C. § 1447(c).
“[C]ourts may award [costs] under § 1447(c) . . .
where the removing party lacked an objectively reasonable
basis for seeking removal.” Martin v. Franklin
Capital Corp., 546 U.S. 132, 141 (2005).
“Objective reasonableness is evaluated based on the
circumstances as of the time that the case was
removed.” Williams v. Int'l Gun-A-Rama,
416 F. App'x 97, 99 (2d Cir. 2011) (summary order).
“The award of costs under § 1447(c) is
discretionary and does not require a finding that the
removant acted in bad faith.” In re Friedman &
Shapiro, P.C., 185 B.R. 143, 145-46 (S.D.N.Y. 1995). An
award of fees and costs requires the application of a test of
“overall fairness given the nature of the case, the
circumstances of remand, and the effect on the
parties.” Morgan Guar. Tr. Co. of New York v.
Republic of Palau, 971 F.2d 917, 924 (2d Cir. 1992).
courts in this District have found that a removing defendant
lacked an objectively reasonable basis for removing a case on
the stated basis of diversity of citizenship when, as here,
the defendant was a citizen of the state in which the action
was brought. See Prescia v. U.S. Life Ins. Co. in City of
New York, No. 10cv2518 (KMW), 2010 WL 4344561, at *3
(S.D.N.Y. Nov. 1, 2010) (“Here, the Court is authorized
to award costs and attorney's fees against the Defendant
[under § 1447(c)] because removal was predicated upon a
diversity of citizenship that clearly does not exist.
Defendant is a citizen of the state in which this action was
brought. Even the most basic of research would have revealed
that this Court does not have jurisdiction over this
action.” (internal quotation marks and citation
omitted)); Dela Rosa v. 610-620 W. 141 LLC, No. 08
Civ. 8080(PKL), 2009 WL 1809467, at *3-4 (S.D.N.Y. June 24,
2009). As Defendants concede, at least one Defendant is a
citizen of New York. Accordingly, Defendants lacked an
objectively reasonable basis for removal and an award under
§ 1447(c), is appropriate because “removal was
predicated upon a diversity of citizenship that clearly does
not exist.” Prescia, 2010 WL 4344561, at *3
(internal quotation marks omitted).
remaining issue, then, is the proper amount of the award.
Plaintiff seeks costs in the amount of $1, 157.78 for various
expenses, including lodging, airfare, printing, shipping, and
various office supplies. (See McLaughlin Aff. at
1-2.) The Court will first consider the expenses for lodging
submits two receipts, one for a hotel reservation for May 29,
2017 through May 30, 2017 in Jersey City, New Jersey in the
amount of $214, and one for a round-trip plane ticket from
Charlotte, North Carolina to LaGuardia Airport in New York
City, departing on May 29, 2017 and returning May 30, 2017,
in the amount of $266. (Mot. for Costs Exs. 1, 2.) Plaintiff
never explains exactly what these receipts are, and his
affidavit simply states that these receipts are
“Non-Refundable Lodging” and
“Non-Refundable Airfare” caused by
Defendants' “improper and cancelled removal.”
(McLaughlin Aff. at 1.) However, in his reply brief,
Plaintiff states that “[b]y the Defendants[']
actions alone, moving the case to S.D.N.Y. improperly, they
canceled, the RJI meeting in the Supreme Court of the State
of New York, which was confirmed for May 30th, 2017.”
(Letter Reply Ex. 1 at 1, ECF No. 32-1 (filed July 10, 2017)
[hereinafter Pl.'s Reply Br.].) Because Plaintiff is
pro se, the Court will assume, for the purposes of
this motion, that these receipts reflect expenses Plaintiff
incurred in booking travel for the conference in state court.
Plaintiff is not entitled to costs under 1447(c) for these
travel expenses. Courts have granted pro se
litigants' requests for reimbursement of expenses
“arising from the improvident removal and subsequent
remand.” Aretakis v. United Airlines, Inc.,
No. 15CV6313ENVJO, 2017 WL 3037482, at *3 (E.D.N.Y. June 23,
2017), report and recommendation adopted, No.
15CV6313ENVJO, 2017 WL 3037403 (E.D.N.Y. July 17, 2017).
“Fees and costs are incurred as a result of the removal
if they . . . would not have arisen had the case
remained in state court.” Williams v. Beemiller,
Inc., No. 05-CV-836S(F), 2010 WL 891001, at *5 (W.D.N.Y.
Mar. 10, 2010), rev'd on other grounds sub nom.
Williams v. Int'l Gun-A-Rama, 416 F. App'x 97
(2d Cir. 2011). These travel costs were not, as Plaintiff
contends, incurred as a result of removal, because had