Know when to hold 'em and when to fold 'em. And -- when to play 'em.
Suppose you represent an insurance company. One of the tools in your toolkit when your client, the insurance company, is sued in State Court is to remove the case to Federal Court.
Suppose that is exactly what happens. After you remove the case against your client to Federal Court, suppose the Federal Judge on her own motion raises the issue of why the case should not be remanded, and asks you and the policyholder's lawyers to brief the issue.
Suppose further that after the Federal Judge raises the issue of remand on one ground, the plaintiff-policyholder-corporation (in this case) who filed suit in State Court and whose case was removed to Federal Court, then files its own motion to remand the case back to State Court including on the ground raised by the Federal Judge on her own motion.
Suppose, apparently, that the Federal Court enters an Order thereafter, remanding the case and that the plaintiff files its motion for attorney's fees.
Wouldn't you argue, or be tempted to argue, that under these circumstances the plaintiff should not be entitled to attorney's fees since the plaintiff's motion to remand was filed and served after the Federal Court previously asked for briefing on one of the grounds for remand? Might you not raise the contention on behalf of your client, in opposition to an award of attorney's fees upon remand under these circumstances, that in this case the plaintiff's motion for remand was "unnecessary and duplicative" such that your client should not have to pay the attorney's fees incurred by the plaintiff in connection with that motion?
Well, this was the insurance company's "primary objection" to an award of attorney's fees upon granting remand back to State Court, according to the Federal Judge in the case of Leeward Sound Corp. v. Service Ins. Co., 2014 WL 4376189 *1 (M.D. Fla. September 4, 2014).
The motion for attorney's fees was first considered by a U.S. Magistrate Judge who recommended and reported that the motion be approved. The District Judge agreed and accepted the report and recommendation, noting that the plaintiff's attention to a ground for remand that the District Judge raised herself, which the plaintiff "included" in its motion to remand, "does not preclude Plaintiff from recovering its attorneys fees incurred as a result of the improper removal." Leeward Sound Corp. v. Service Ins. Co., 2014 WL 4376189 *2 (M.D. Fla. September 4, 2014).
The Federal Judge pointed out, before concluding her Order, that the defendant "failed to object to the hourly rate or the hours expended specified in Plaintiff's Motion for Attorneys Fees". Leeward Sound Corp. v. Service Ins. Co., 2014 WL 4376189 *2 n.3 (M.D. Fla. September 4, 2014). Regardless of the lack of objections, the U.S. Magistrate Judge conducted an independent review of both the specified hourly rate and the hours expended. See Leeward Sound Corp. v. Service Ins. Co., 2014 WL 4376189 *4-*5 (M.D. Fla. September 4, 2014). The Federal Judge adopted the findings in this regard of the U.S. Magistrate Judge and entered her Order accordingly. Leeward Sound Corp. v. Service Ins. Co., 2014 WL 4376189 *2 n.3 (M.D. Fla. September 4, 2014).
© 2014 by Dennis J. Wall. All rights reserved. No claim to original U.S. Government works.
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