Ladies Mem'l Ass'n v. City of Pensacola

662 F.Supp.3d 1212

LADIES MEMORIAL ASSOCIATION INC., et al., Plaintiffs, v. CITY OF PENSACOLA, FLORIDA, et al., Defendants.

Case No.: 3:20cv5681/MCR/ZCB

United States District Court, N.D. Florida, Pensacola Division

Signed March 17, 2023

David Rhodes McCallister, David R. McCallister Attorney at Law, Dade City, FL, for Plaintiffs.

Susan Adair Woolf, City Attorneys Office, Pensacola, FL, Bruce Douglas Partington, Clark Partington Hart, Pensacola, FL, for Defendant City of Pensacola Florida.

Ashley E. Davis, Florida Department of State, Tallahassee, FL, for Defendant Laurel Lee.

ORDER

M. CASEY RODGERS, UNITED STATES DISTRICT JUDGE

The magistrate judge issued a Report and Recommendation on January 20, 2023. (Doc. 68). The Court furnished the parties a copy of the Report and Recommendation and afforded an opportunity to file objections pursuant to Title 28, United States Code, Section 636(b)(1). There have been no timely filed objections.

Having considered the Report and Recommendation and the record, I have determined the Report and Recommendation should be adopted.

Accordingly, it is ORDERED:

1. The magistrate judge's Report and Recommendation (Doc. 68) is adopted and incorporated by reference in this order.

2. The Plaintiffs' Application for Attorneys' Fees, (Doc. 60), is DENIED.

DONE AND ORDERED this 17th day of March 2023.

REPORT AND RECOMMENDATION

Zachary C. Bolitho, United States Magistrate Judge

This matter is before the Court on an Application for Attorneys' Fees filed by Plaintiffs under 28 U.S.C. § 1447(c). The application was filed in the Eleventh Circuit and then transferred here. (Doc. 60). Plaintiffs argue attorneys' fees are warranted because Defendants' removal of this action to federal court was objectively unreasonable. Defendants say otherwise. After considering the briefs and the oral arguments presented on January 6, 2023, the Court agrees with Defendants. For the reasons below, Plaintiffs' application should be denied.

I. Background

Plaintiffs filed this case in Florida state court on July 14, 2020. (Doc. 1-1). The complaint alleged Defendants violated various state and federal laws by deciding to remove a Confederate monument from a city park in Pensacola, Florida. (Id.). Defendants removed the case to this Court on July 27, 2020, based on federal question jurisdiction under 28 U.S.C. §§ 1331 and 1441. (Doc. 1 at 1).

Three days post-removal, Defendants sought dismissal on two grounds. (Doc. 7). First, they argued that Plaintiffs lacked Article III standing. (Id. at 14-23). Second, they argued that the complaint failed to state a claim upon which relief could be granted. (Id. at 23-39). Plaintiffs did not oppose the motion to dismiss on the merits. Instead, they filed a motion to remand. That motion claimed removal was improper because the State of Florida—a named Defendant—had not consented to removal. (Docs. 9, 10). The motion was denied. (Doc. 21). Plaintiffs also sought leave to file an amended complaint (Doc. 23), which was denied because of futility. (Doc 26 at 19). And the case was dismissed under Local Rule 7.1(H) because Plaintiffs failed to oppose the motion to dismiss. (Doc. 26 at 5, 19).

Plaintiffs appealed. (Docs. 31, 47). The Eleventh Circuit reversed. It held that the case should have been remanded to state court under 28 U.S.C. § 1447(c) because Plaintiffs lacked standing. Ladies Mem'l Ass'n, Inc. v. City of Pensacola, 34 F.4th 988, 991 (11th Cir. 2022). Plaintiffs then filed the current application seeking $18,414.12 in attorneys' fees generated by their appeal. (Doc. 60 at 3-4). The Eleventh Circuit transferred the application to this Court.¹ (Id. at 2).

Defendants have opposed the application on three grounds. First, they claim the application was untimely filed. Second, they claim the application lacks merit because Defendants had an objectively reasonable basis to remove. Third, they argue that—if attorneys' fees are awarded—the amount sought by Plaintiffs is unreasonable.²

II. Discussion

A. Plaintiffs' application should not be denied as untimely.

Defendants claim the application for attorneys' fees was untimely. Because the application was initially submitted to the Eleventh Circuit, the Court will apply the Eleventh Circuit Rules to resolve the timeliness issue.³ Those rules say that applications for attorneys' fees should be made within fourteen days after the time to seek rehearing has expired. 11th Cir. R. 39-2. A party must seek rehearing within twenty-one days after the entry of judgment. 11th Cir. R. 40-3.

The Eleventh Circuit entered its judgment on May 16, 2022. So, Plaintiffs had until June 20, 2022, to seek attorneys' fees under 11th Cir. R. 39-2. Plaintiffs' application was filed on June 21, 2022. Thus, Defendants argue the application was untimely. Plaintiffs argue in response that an error in the Memorandum to Counsel or Parties that accompanied the Eleventh Circuit's opinion created confusion about who could seek costs. The initial memorandum stated that costs⁴ were "taxed against appellants [i.e., Plaintiffs]." (Eleventh Cir. Doc. 75-3). The Eleventh Circuit later issued a corrected memorandum stating that costs were "taxed against appellees [i.e., Defendants]." (Eleventh Cir. Docs. 75-2, 78, 80). From the Eleventh Circuit's docket, it appears the corrected memorandum was issued on June 10, 2022. (Eleventh Cir. Doc. 78).⁵

Plaintiffs argue that the erroneous issuance of the initial memorandum and its replacement by the corrected memorandum caused confusion as to whether they could seek attorneys' fees and when such a fee application would be due. Plaintiffs claim that the initial memorandum led them to believe that they could not seek fees or costs. The Court can understand the potential confusion. Thus, the Court believes Plaintiffs have established good cause to excuse the untimeliness of their application. See Fed. R. App. 2 (stating that upon a showing of "good cause" the court may "suspend any provision of these rules in a particular case"); see also 11th Cir. R. 2-1 (authorizing the court to "take such other or different action as it deems appropriate"); Fed. R. Civ. P. 6(b)(1)(B) (authorizing a court to extend a filing deadline "after the time has expired if the party failed to act because of excusable neglect"). Having rejected Defendants' bid to deny the application as untimely, the Court will proceed to the merits of the application.

B. Defendants had an objectively reasonable basis for removal.

Consideration of the merits reveals that Plaintiffs are not entitled to attorneys' fees because Defendants' removal of this case was objectively reasonable. Plaintiffs submitted their application for fees under 28 U.S.C. § 1447(c). Section 1447(c) permits a court to order the payment of "just costs and any actual expenses, including attorney fees" when a case is improperly removed and subsequently remanded. 28 U.S.C. § 1447(c). The Supreme Court has held that in the absence of unusual circumstances, a court "may award attorneys' 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." Martin v. Franklin Cap. Corp., 546 U.S. 132, 141, 126 S.Ct. 704, 163 L.Ed.2d 547 (2005). A district court has discretion when determining whether there was an objectively reasonable basis for removal. MSP Recovery Claims, Series LLC v. Hanover Ins. Co., 995 F.3d 1289, 1296 (11th Cir. 2021).

So, the question before the Court is—was Defendants removal of this case objectively reasonable? Yes, say Defendants because there were federal claims on the face of the complaint that provided federal question jurisdiction under 28 U.S.C. § 1331. No, say Plaintiffs because Defendants removed and then sought dismissal based on a lack of standing, which demonstrated that the action should have remained in state court.

Defendants have the better argument. To see why, let's start by looking at when removal is authorized. Generally, "any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States . . . ." 28 U.S.C. § 1441(a). Federal district courts have "original jurisdiction" over "all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. That category of original jurisdiction—known as federal question jurisdiction—exists "when a federal question is presented on the face of the plaintiff's properly pleaded complaint." Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). This rule is called the well-pleaded complaint rule, and it "makes the plaintiff the master of the claim; he or she may avoid federal jurisdiction by exclusive reliance on state law." Id. Thus, if a plaintiff only brings "state law causes of action in state court, no federal question will appear in the complaint that could satisfy the well-pleaded complaint rule, and the case may not be removed to federal court." Kemp v. Int'l Bus. Machines Corp., 109 F.3d 708, 712 (11th Cir. 1997).

Because an action can only be removed if it could have been filed in federal court originally, the Court "must look to plaintiff's claim[s] to determine whether removal was appropriate." Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir. 1994). And given the well-pleaded complaint rule, removal is appropriate if the plaintiff "alleged violations of federal law" on the face of the complaint. Liebman v. Deutsche Bank Nat. Tr. Co., 462 F. App'x 876, 878 (11th Cir. 2012). If the complaint contains "even one federal claim[,]" then the defendant has "the right to remove the entire case to federal court." Convent Corp. v. City of N. Little Rock, 784 F.3d 479, 483 (8th Cir. 2015) (internal quotations omitted); see also Lepucki v. Van Wormer, 765 F.2d 86, 89 (7th Cir. 1985) (explaining th...