United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. Crabtree United States District Judge
December 5, 2016, plaintiff filed a petition in the District
Court of Allen County, Kansas, naming pro se defendant Jerry
L. Swanson as the sole defendant. Doc. 1 at 1; Doc. 1-1 at 2.
Plaintiff brought its petition under the Kansas Code of Civil
Procedure for Limited Actions-Kan. Stat. Ann. § 61-2801
et seq.-alleging that defendant owes plaintiff more
than $12, 000 in credit card debt. Doc. 1-1 at 2-3.
Defendant removed the action to our
court on January 25, 2017. Doc. 1. Plaintiff timely filed its
Motion to Remand on February 21, 2017. Doc. 4. Defendant did
not respond to this Motion, and the time for doing so has
passed. So, consistent with D. Kan. Rule 7.4(b), the court
“will consider and decide the motion as an uncontested
motion.” In these circumstances, the court ordinarily
“will grant the motion without further notice.”
D. Kan. Rule 7.4(b). Although the court could grant
defendant's motion to remand under Rule 7.4(b) without
further discussion, it also rules on the motion based on its
merits. E.g., Gee v. Towers, No. 16-2407,
2016 WL 4733854, *1 (D. Kan. Sept. 12, 2016) (dismissing
complaint under Rule 7.4(b), but also considering motion to
dismiss on its merits).
Plaintiff asks the court to remand this case to Kansas state
court for two reasons: (1) defendant's removal was
procedurally defective and (2) the court lacks subject matter
jurisdiction over plaintiff's Complaint. Because the
court concludes that it lacks jurisdiction to hear this case,
it only addresses plaintiff's second argument.
defendant may remove any state-court, civil action to federal
court if the plaintiff could have brought at least one of its
claims in federal court originally. 28 U.S.C. § 1441(a);
Russell v. Sprint Corp., 264 F.Supp.2d 955, 958 (D.
Kan. 2003), abrogated on other grounds by Martin v.
Franklin Capital Corp., 546 U.S. 132 (2005). But, the
court must remand the case to state court if it lacks subject
matter jurisdiction. 28 U.S.C. § 1447(c). “The
removing party has the burden to demonstrate the
appropriateness of removal from state to federal
court.” Baby C v. Price, 138 F. App'x 81,
83 (10th Cir. 2005) (citation omitted). To invoke the
court's subject matter jurisdiction properly, then,
defendant-as the removing party here-must show that either
federal question jurisdiction or diversity jurisdiction
exists in this case.
diversity jurisdiction exists here because plaintiff sued
defendant in the state of his citizenship-Kansas.
See 28 U.S.C. § 1441(b)(2). So, the court may
only retain this case if jurisdiction exists under 28 U.S.C.
§ 1331-commonly called federal question jurisdiction.
See Devon Energy Prod. Co. v. Mosaic Potash Carlsbad,
Inc., 693 F.3d 1195, 1202 (10th Cir. 2012). Under §
1331, the court has “jurisdiction of all civil actions
arising under the Constitution, laws, or treaties of the
United States.” To determine whether a claim arises
under federal law, courts employ the well-pleaded complaint
rule. Id. Under this rule, “a suit arises
under federal law ‘only when the plaintiff's
statement of his own cause of action shows that it is
based' on federal law.” Id. (citations
omitted). So, a federal defense, for instance, typically
cannot satisfy the well-pleaded complaint rule, and thus
cannot create federal question jurisdiction. Id.
Notice of Removal, defendant alleges that federal question
jurisdiction exists here because the case arises under the
Fair Debt Collections Procedures Act, 15 U.S.C. § 1692
et seq. Doc. 1 at 2. But plaintiff's petition
does not assert a claim under that Act-defendant's
counterclaim does. In 2002, the Supreme Court held that a
defendant's federal counterclaim cannot satisfy the
well-pleaded complaint rule, and thus cannot create federal
question jurisdiction. Holmes Grp., Inc. v. Vornado Air
Circulation Sys., Inc., 535 U.S. 826, 831-32 (2002). So,
defendant cannot rely on his counterclaim to create subject
matter jurisdiction here. And, the only claim alleged in
plaintiff's petition arises solely under state law.
Therefore, the court does not have subject matter
jurisdiction over plaintiff's petition.
court thus grants plaintiff's motion to remand and
remands the case to the District Court of Allen County,
seeks an award of fees and expenses under 28 U.S.C. §
1447(c), which allows the court to “require payment of
just costs and any actual expenses, including attorney fees,
incurred as a result of the removal” when remanding a
case to state court. The decision to award fees and expenses
“is within the [c]ourt's discretion.”
Russell, 264 F.Supp.2d at 963 (citations omitted).
But, “[a]bsent unusual circumstances, courts may award
attorney's fees under § 1447(c) only where the
removing party lacked an objectively reasonable basis for
seeking removal. Conversely, when an objectively reasonable
basis exists, fees should be denied.” Kansas ex
rel. Morrison v. Price, 242 F. App'x 590, 593 (10th
Cir. 2007) (quoting Martin, 546 U.S. at 141). In
other words, the court may award fees and costs under §
1447(c) when the removing defendants had no
“objectively reasonable grounds to believe the removal
was legally proper.” Martin v. Franklin Capital
Corp., 393 F.3d 1143, 1148, 1151 (10th Cir. 2004),
aff'd, 546 U.S. 132 (2005).
court has no doubt that defendant's removal in this case
was objectively unreasonable. Not only has defendant failed
to file a response to plaintiff's Motion to Remand
explaining the reason he believed removal was appropriate,
but the Supreme Court has also held that defendant's only
basis for removal could not support federal court
jurisdiction. So, defendant had no objectively reasonable
grounds to believe that his removal was legally proper. The
court thus awards plaintiff fees and expenses under 28 U.S.C.
court orders defendant to pay $200 to plaintiff's counsel
for attorney's fees and costs incurred in responding to
his frivolous removal. Our court previously has determined
that $200 represents a fair and reasonable award of fees and
costs after a removing party files a frivolous removal.
See King v. Ziegler (In re Marriage of King), No.
04-4158-SAC, 2004 WL 3037968, at *2 n.1 (D. Kan. Dec. 16,
2004), aff'd, 138 F. App'x 60 (10th Cir.
2005). When awarding that amount, Ziegler noted that
the award likely was less than the actual expenses and costs
incurred in filing the motion to remand, but our court
concluded it was fair and reasonable in light of the removing
party's pro se status and ...