Calabro v. Aniqa Halal Live Poultry Corp., No. 10-66 (2d Cir. 2011)
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Plaintiff, a federal safety inspector, sued defendant in New York Supreme Court, alleging that defendant used photographs of plaintiff for advertising purposes without his consent in violation of New York State Civil Rights Law 50 and 51. Defendant filed a notice of removal asserting federal subject-matter jurisdiction on the basis of its third-party claims and plaintiff moved to remand the case back to state court. At issue was whether the district court properly determined that plaintiff's complaint contained no federal claim and therefore, the district court lacked subject matter jurisdiction over the case and remanded back to state court. The court held that, because the district court's decision to remand the case rested on its determination that it was without subject matter jurisdiction, the court lacked appellate jurisdiction to review it. The court held, however, that it did possess appellate jurisdiction to review the district court's award of attorney's fees and costs pursuant to 28 U.S.C. 1447(c). Accordingly, the court held that the district court did not abuse its discretion in determining that defendant's purported basis for removal was objectively unreasonable and therefore, the modest size of the award of attorney's fees and costs was not an abuse of discretion.
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10-66-cv Calabro v. Aniqa Halal Live Poultry Corp. 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term, 2010 4 (Submitted: January 28, 2011 Decided: June 10, 2011) 5 Docket No. 10-66-cv 6 ------------------------------------- 7 VINCENT CALABRO, 8 Plaintiff-Appellee, 9 - v - 10 ANIQA HALAL LIVE POULTRY CORP., 11 Defendant-Appellant.* 12 ------------------------------------- 13 14 Before: Judge.** 15 SACK and LIVINGSTON, Circuit Judges, and MURTHA, Appeal from an order of remand to New York Supreme 16 Court, Queens County, and an award of attorney's fees and costs 17 pursuant to 28 U.S.C. § 1447(c) by the United States District 18 Court for the Eastern District of New York (John Gleeson, Judge). 19 Although we lack appellate jurisdiction to review the district 20 court's order remanding this case to state court, we write to 21 confirm that we do possess appellate jurisdiction to review the 22 district court's award of attorney's fees and costs. That review * The Clerk of Court is directed to amend the official caption as set forth above. ** The Honorable J. Garvan Murtha, of the United States District Court for the District of Vermont, sitting by designation. 1 is for abuse of discretion. 2 Applying these principles, we affirm. 3 4 5 Leo G. Bevolas, Law Office of Kenneth M. Mollins, P.C., Melville, New York, for Plaintiff-Appellee. 6 7 8 Janelle Laverne Niles, The Law Office of Janelle Niles, Esq., Brooklyn, New York, for Defendant-Appellant. 9 10 PER CURIAM: Defendant Aniqa Halal Live Poultry Corp. ("Aniqa") 11 appeals from an order of remand and award of attorney's fees and 12 costs pursuant to 28 U.S.C. § 1447(c) by the United States 13 District Court for the Eastern District of New York (John 14 Gleeson, Judge). 15 it necessary to explain our resolution of the relatively narrow 16 issue presented to us here. 17 18 We rehearse the facts only insofar as we think BACKGROUND Plaintiff Vincent Calabro initiated this lawsuit in New 19 York Supreme Court, Queens County, in October 2009. 20 federal safety inspector employed by the United States Department 21 of Agriculture ("USDA"), alleges that Aniqa used photographs of 22 him for advertising purposes without his consent in violation of 23 New York State Civil Rights Law §§ 50 and 51. 24 filed a third-party complaint naming Calabro and the USDA as 25 third-party defendants and asserting claims against them under 26 the False Claims Act, 31 U.S.C. § 3729 et seq., and the Poultry 27 Products Inspection Act, 21 U.S.C. § 451 et seq. 2 Calabro, a Aniqa answered and 1 On November 9, 2009, Aniqa filed a notice of removal 2 asserting federal subject-matter jurisdiction on the basis of its 3 third-party claims, thereby removing this action to the United 4 States District Court for the Eastern District of New York. 5 November 10, 2009, Calabro moved to remand the case to state 6 court. 7 On By memorandum and order of December 15, 2009, the 8 district court (John Gleeson, Judge) granted that motion. 9 that Aniqa's removal of the case was premised on federal-question Noting 10 jurisdiction and that Calabro's complaint contained no federal 11 claim, the district court determined that it lacked subject- 12 matter jurisdiction over the case and therefore remanded the case 13 back to state court. 14 Corp., No. 09-cv-4859, 2009 WL 4893200, 2009 U.S. Dist. LEXIS 15 116660 (E.D.N.Y. Dec. 15, 2009). 16 further determined that Aniqa had "asserted no colorable bases 17 for federal jurisdiction," id. at *3, 2009 U.S. Dist. LEXIS 18 116660, at *8, the court also imposed an award of attorney's fees 19 and costs against Aniqa as permitted by 28 U.S.C. § 1447(c).3 20 a subsequent order, the district court set the amount of the 21 award at $3,575. See Calabro v. Aniqa Halal Live Poultry Because the district court 3 Section 1447(c) provides, in pertinent part, that "[a]n 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). 3 In 1 DISCUSSION 2 Aniqa argues that the district court erred in remanding 3 this case to state court. "An order remanding a case to the 4 State court from which it was removed is not reviewable on appeal 5 or otherwise." 6 has interpreted section 1447(d) to "cover less than its words 7 alone suggest," Powerex Corp. v. Reliant Energy Servs., Inc., 551 8 U.S. 224, 229 (2007), it is well settled that section 1447(d) 9 deprives federal courts of appeals of jurisdiction to review 28 U.S.C. § 1447(d). Although the Supreme Court 10 remand orders if the remand is based on a lack of subject-matter 11 jurisdiction. 12 633, 640 (2006); Things Remembered, Inc. v. Petrarca, 516 U.S. 13 124, 127-28 (1995). 14 remand this case rested on its determination that it was without 15 subject-matter jurisdiction, we lack appellate jurisdiction to 16 review it. 17 F.3d 55, 58-59 (2d Cir. 2007); In re WTC Disaster Site, 414 F.3d 18 352, 363-68 (2d Cir. 2005). 19 Aniqa's appeal. 20 See, e.g., Kircher v. Putnam Funds Trust, 547 U.S. Because the district court's decision to See, e.g., Price v. J & H Marsh & McLennan, Inc., 493 To that extent, we must dismiss We do, however, possess appellate jurisdiction to 21 review the district court's award of attorney's fees and costs 22 pursuant to 28 U.S.C. § 1447(c). 23 and our Court have assumed that such appellate jurisdiction 24 exists, neither court has so concluded expressly. 25 Martin v. Franklin Capital Corp., 546 U.S. 132, 134 (2005); Although both the Supreme Court 4 See, e.g., 1 Bryant v. Britt, 420 F.3d 161, 163 (2d Cir. 2005) (per curiam); 2 Morgan Guar. Trust Co. of N.Y. v. Republic of Palau, 971 F.2d 3 917, 923-25 (2d Cir. 1992). 4 of our sister circuits,4 we do so today. 5 Following the lead of at least seven Aniqa contends that the district court abused its 6 discretion in awarding attorney's fees and costs to Calabro. We 7 agree with Aniqa that our review of a district court's award of 8 attorney's fees and costs under section 1447(c) is for abuse of 9 discretion. See Bryant, 420 F.3d at 163 n.2; Morgan Guar. Trust 10 Co. of N.Y., 971 F.2d at 924. "A district court has abused its 11 discretion if it based its ruling on an erroneous view of the law 12 or on a clearly erroneous assessment of the evidence, or rendered 13 a decision that cannot be located within the range of permissible 14 decisions." 15 (brackets, citations, and internal quotation marks omitted). In re Sims, 534 F.3d 117, 132 (2d Cir. 2008) 16 In Martin v. Franklin Capital Corp., 546 U.S. 132 17 (2005), the Supreme Court instructed that "[a]bsent unusual 18 circumstances, courts may award attorney's fees under § 1447(c) 19 only where the removing party lacked an objectively reasonable 20 basis for seeking removal. 21 reasonable basis exists, fees should be denied." Conversely, when an objectively 4 Id. at 141. See Mints v. Educ. Testing Serv., 99 F.3d 1253, 1260 (3d Cir. 1996); Hornbuckle v. State Farm Lloyds, 385 F.3d 538, 541 (5th Cir. 2004); Warthman v. Genoa Twp. Bd. of Trustees, 549 F.3d 1055, 1059 (6th Cir. 2008); Wisconsin v. Hotline Indus., Inc., 236 F.3d 363, 365 (7th Cir. 2000); Stuart v. UNUM Life Ins. Co. of Am., 217 F.3d 1145, 1148 (9th Cir. 2000); Topeka Hous. Auth. v. Johnson, 404 F.3d 1245, 1248 (10th Cir. 2005); Legg v. Wyeth, 428 F.3d 1317, 1319-20 (11th Cir. 2005). 5 1 Although district courts retain the discretion to depart from 2 those rules in unusual circumstances, a court's "reasons for 3 departing from the general rule should be faithful to the 4 purposes of awarding fees under § 1447(c)." 5 quotation marks omitted); see also id. at 140 (discussing the 6 purposes of section 1447(c)). 7 Id. (internal Applying those principles, we affirm the district 8 court's award in this case. Under the well-pleaded-complaint 9 rule, "federal question jurisdiction exists only if [a] 10 plaintiff's statement of his own cause of action shows that it is 11 based on federal law." 12 Cir. 2010) (internal quotation marks omitted). 13 well established that a defendant may not evade this rule by 14 raising a federal question in its responsive pleadings and then 15 attempting to remove on that basis. 16 Vornado Air Circulation Sys., Inc., 535 U.S. 826, 831-32 (2002). 17 The district court therefore did not abuse its discretion in 18 determining that Aniqa's purported basis for removal -- i.e., 19 that the presence of federal claims in its third-party complaint 20 rendered the entire action removable under 28 U.S.C. § 1441(c) -- 21 was objectively unreasonable. 22 Romano v. Kazacos, 609 F.3d 512, 518 (2d Moreover, it is See Holmes Grp., Inc. v. Finally, we have been given no grounds upon which to 23 conclude that the relatively modest size of the award of 24 attorney's fees and costs was an abuse of discretion.5 5 Although our review of the record indicates that the amount of the award was $3,575, Aniqa asserts that it was $4,500. 6 1 We have considered the remainder of Aniqa's arguments 2 on appeal and conclude that they are without merit or are not 3 properly before us. 4 dismissed in part, and the district court's judgment awarding 5 attorney's fees and costs is affirmed. For the foregoing reasons, Aniqa's appeal is See Appellant's Br. at 5; Appellant's Reply Br. at 12. Our conclusion would be the same if the amount of the award were indeed $4,500. 7
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