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Jurisdiction: Alabama Southern District Court
Decision Date: 8/14/2012

STATES

                                                                                                                                                                                                                                                                                                                                                                                                                            FEDERAL

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        RC Lodge RC Lodge, LLC v. SE Prop. Holdings, LLC (S.D. Ala., 2012)

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        RC LODGE, LLC, et al Plaintiffs,
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        v.
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        SE PROPERTY HOLDINGS, LLC, et al Defendants.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        CIVIL ACTION 12-0112-WS-M

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Dated: August 14, 2012

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        RC LODGE, LLC, et al Plaintiffs, v. SE PROPERTY HOLDINGS, LLC, et al Defendants.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        CIVIL ACTION 12-0112-WS-M

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Dated: August 14, 2012

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        ORDER

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                By order dated July 16, 2012, the Court granted the plaintiffs' motion to remand. (Doc. 59). The plaintiffs subsequently filed a motion for costs and fees under 28 U.S.C. § 1447(c). (Doc. 61). The removing defendant has filed a response in opposition and the plaintiffs a reply, (Docs. 63, 64), and the motion is ripe for resolution.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                The defendant argues that the plaintiffs' motion is fatally untimely because it was not filed until after the case was remanded for lack of subject matter jurisdiction. (Doc. 63 at 12-14). Every appellate decision brought to the Court's attention, however, has ruled against the defendant's position. See Bryant v. Britt, 420 F. 3d 161, 164-66 (2nd Cir. 2005); Wisconsin v. Hotline Industries, Inc 236 F. 3d 363, 365 (7th Cir. 2000); Stallworth v. Greater Cleveland Regional Transit Authority, 105 F. 3d 252, 257 (6th Cir. 1997); Mints v. Educational Testing Service, 99 F. 3d 1253, 1257-59 (3rd Cir. 1996); Moore v. Permanente Medical Group, Inc 981 F.2d 443 445 (9th Cir. 1992); Coward v. AC and S, Inc 91 Fed. Appx. 919, 921-22 (5th Cir. 2004). The two unreasoned lower court decisions on which the defendant relies do not outweigh the wealth of reasoned appellate authority to the contrary.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                "An order remanding the 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). "Absent unusual circumstances, courts may award attorney's fees under §

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 2

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        1447(c) only where the removing party lacked an objectively reasonable basis for seeking removal. " Martin v. Franklin Capital Corp 546 U.S. 132 141 (2005). The plaintiffs' brief and superficial argument, which simply places out of context certain innocuous words and phrases used in the order of remand, (Doc. 61 at 2-3), falls far short of meeting this standard. Accordingly, the motion for costs and fees is denied.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                WILLIAM H. STEELE        CHIEF UNITED STATES DISTRICT JUDGE

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