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MOORE v. KAISER FOUND. HOSPS.

June 14, 1991

OPHELIA Y. MOORE, et. al., Plaintiffs,
v.
KAISER FOUNDATION HOSPITALS, INC., et. al., Defendants



The opinion of the court was delivered by: WALKER

 VAUGHN R. WALKER, UNITED STATES DISTRICT JUDGE

 This medical malpractice case has been remanded to state court. Plaintiffs move for an award of attorney fees pursuant to 28 U.S.C. Section 1447(c). As amended in November 1988, § 1447(c) provides: "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." This order is an addition to and modification of the order issued in this case on February 25, 1991.

 I. BACKGROUND

 On February 25, 1991, the court remanded this action. The court concluded that defendants had waived their right to remove primarily because defendants had previously sought to transfer the case from Alameda County Superior Court to San Mateo County Superior Court rather than removing directly to federal court and had made certain substantive motions in state court in related matters before removing.

 Plaintiffs argue that their requested award of fees is proper upon remand, even if the removal was not frivolous or in bad faith. Further, even if a bad faith showing were required, plaintiffs argue that defendants' forum shopping "after first 'testing the waters' of the state court" is evidence of bad faith.

 Defendants contend that any fee award under section 1447(c) is inappropriate where the removal was colorable and there has been no showing of bad faith. If the court need not find bad faith to decide whether to award fees upon remand, defendants ask the court to consider the absence of bad faith in setting the amount of fees awarded. Finally, defendants contend that plaintiffs' declarations in support of motion for attorneys fees fail to provide an adequate basis for the court to determine the amount of fees spent to remand this case.

 II. THE NECESSITY OF A FINDING OF BAD FAITH IN ORDER TO AWARD ATTORNEYS' FEES UNDER SECTION 1447

 By the plain language of revised 28 U.S.C. § 1447(c), Congress has authorized the court to award attorneys' fees upon remand. The statute simply provides that the court "may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal." The statute imposes no requirement that the court first make a finding of bad faith, or any other finding, before awarding fees. See Schwarzer, Tashima, and Wagstaffe, Civil Procedure Before Trial, 2:1110 ("[Section 1447] does not require a showing that the removal was 'frivolous' or 'vexatious' or lacked an 'objectively reasonable basis' as required for sanctions on other theories" (emphasis in original)).

 Before the revision of § 1447(c) in November 1988, the statute provided only that the court "may order the payment of just costs." With language essentially identical to the revised statute, the former statute plainly imposed no requirement that the court first make a finding of bad faith, or any other finding, before awarding costs. Accordingly, the courts awarded costs without finding bad faith. Cornwall v. Robinson, 654 F.2d 685, 687 (10th Cir. 1981) (cited in Schmitt v. Insurance Co. of North America, 845 F.2d 1546, 1552 (9th Cir. 1988)); Schmidt v. National Organization for Women, 562 F. Supp. 210, 215 (N.D. Fla. 1983) (same).

 The language of former § 1447(c) did not explicitly provide for an award of fees. Thus, unlike costs, fees could not be awarded in the absence of a showing that the removal was not fairly supportable and that the removal was in bad faith. Schmitt v. Insurance Co. of North America, 845 F.2d 1546, 1552 (9th Cir. 1988).

 III. THE PROPER AMOUNT OF FEES TO BE AWARDED IN THIS CASE

 For the foregoing reasons, the court concludes that Congress has placed no limit on the amount of payment which the court may require of just costs and any actual expenses, including attorney fees, incurred as a result of the removal. The court may award none, some, or all of the fees incurred by the remanding party. As a matter of public policy, the party forced to bring a motion to remand an improperly removed case generally should be fully reimbursed for its costs in remanding the case whether the removal was in bad faith or otherwise. The court's award of fees in this case is not a punitive award against defendants; it is simply reimbursement to plaintiffs of wholly unnecessary litigation ...


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