Anyone who has practiced litigation law for more than ten years will run into this situation. Your client has been sued in state court. After your first court appearance, you get a bad feeling that things are not going to go well in that case. You get a great idea – “Hey we can remove this case to federal court!” There are a few pitfalls with that great idea and the case captioned Jackson County Bank v. Mathew R. DuSablon, (7th Circuit. 2/6/19) could be a refresher course in bad removal.
The Jackson County Bank sued its former employee, DuSablon, in Indiana state court. After his motion to dismiss was denied, DuSablon tried to remove the case to federal court.
The way removal works is that you file a petition to remove the case. If the federal judge believes that there is jurisdiction, you are ok. If she decides there is no jurisdiction, you can end up paying the legal fees of your opponent.
In the DuSablon case, the district judge remanded the case to state court for want of jurisdiction and untimely removal and ordered DuSablon to pay costs and fees for wrongful removal. In this case, the bill amounted to $9,035.61 under 28 U.S.C. §1447(c).
DuSablon then appealed to the Seventh Circuit. Unfortunately for him, remand orders cannot be appealed. The court did hear the appeal of the sanctions award. Because there were only state law claims raised in the case, there was no basis to remove the case. There was “no federal question.” Removal was untimely as well. The district judge viewed the removal petition as a litigation stunt to delay the resolution of the state case.
The Seventh Circuit held that “the district court did not abuse its discretion in determining that DuSable lacked an objectively reasonable basis to remove the case to federal court.” Alas, the court also allowed the Bank to file a fee petition for its fees on appeal.
In conclusion, “Ouch.”
Ed Clinton, Jr.