Civil Procedure
Removal; attorney fees

When a defendant unreasonably removes an action to federal court, 28 U.S.C. 1447(c) authorizes a court to order the defendant to cover expenses incurred as a result of the removal regardless of whether the plaintiff or his attorney initially incurred them.

"The fact that "sec. 1447(c) expressly limits fee awards to actual outlays,' Hotline Indus., 236 F.3d at 367, does not contradict this conclusion. There, the plaintiff relied on in-house counsel to oppose removal, and the court found that because sec. 1447(c) was limited to 'outlays,' the plaintiff could recover only the proportional share of the salaries of the attorneys handling the removal plus related overhead costs rather than the attorneys' market rate. Id. At 368. Hotline Industries did not address contingent fee arrangements, but its reasoning is consistent with my conclusion. Here, as in Hotline Industries, there have been 'actual outlays'; plaintiff's attorneys incurred costs associated with litigating in federal court, including the cost of forgoing other paying work. Further, because plaintiff's attorneys are employed by a firm, and are not salaried counsel, the best way of calculating their costs is to consider their market rate. Their inability to collect fees at the market rate while contesting an unreasonable removal constituted an 'actual' expense."

07-C-601 Simens v. Amerihome Mortgage Co., LLC

E.D.Wis., Adelman, J.

Attorneys: For Plaintiff: Jay A. Urban, Scott B. Taylor, Milwaukee; For Defendant: Anne Reed, Joseph Voiland, Sarah Huck, Milwaukee