be deemed a nullity, as the claim is already contained in the vessel of Walton I. Since no other claim in Walton II fell within this court's original jurisdiction, there was no basis for its removal. 28 U.S.C. § 1441(a). Accordingly, plaintiff's motion for remand is GRANTED.
II. WAS THE TITLE VII CLAIM IN WALTON I PROPERLY DISMISSED?
In the Order of August 14, 1990, the court directed counsel for plaintiff "to submit a stipulated voluntary dismissal of the Title VII claim pursuant to Fed. R. Civ. P. 41(a)(1) if he intends to abandon his Title VII claim or refiles it in state court." Plaintiff filed a "Voluntary Dismissal" on November 19, 1990, which was entered in the civil docket two days later, closing the case.
Under Fed. R. Civ. P. 41(a)(1), a plaintiff may not dismiss an action without court order, and without stipulation by the other parties, if "service by the adverse party of an answer or of a motion for summary judgment" has already occurred. Defendants had a motion for summary judgment before this court when plaintiff's Voluntary Dismissal was filed, requiring either a stipulation by defendants or an order of the court to dismiss the case. Accordingly this case was never properly closed, and is now RE-OPENED.
The court sets a hearing date of December 6, 1991, at 10:30 a.m., to consider defendants' summary judgment motions. Counsel for the parties are directed to follow L.R. 220 in filing any supplemental papers for this hearing.
III. AWARD OF COSTS AND ATTORNEY FEES.
As amended in November 1988, 28 U.S.C. § 1147(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." A showing of "bad faith" is not required by this statute and attorney fees and costs should be awarded a plaintiff who successfully resists an improper removal unless to do so would result in injustice. Moore v. Kaiser Foundation Hospitals, Inc., 765 F. Supp. 1464 (N.D. Cal. 1991).
In its "Notice of Removal," defendants state in para. 1: "The Court did not dismiss plaintiff's Title VII claim, and the plaintiff has not moved to dismiss that claim." Thus, defendants removed Walton II fully realizing that the Title VII claim was still pending in this court and that this court did not wish to exercise jurisdiction over the state law claims.
Plaintiff for quite legitimate reasons fully consistent with concepts of federalism prefers a state forum for his state claims. What cannot be understood is defendants' attempt to remove the action on the basis of a federal claim already pending in a previously pleaded complaint in the federal court. Defendants could not have expected the court to hear the identical claim twice. Nor did defendants believe the court would decide this time to retain jurisdiction over the state law claims. In their "Memorandum of Points and Authorities in Support of Removal," defendants admit they "expect the Court to exercise its discretion to remand the state law claims to state court" (page 5, lines 9-11). Defendants need not have brought Walton II before this court, and instead would better have served their goals by moving for a stay of the Title VII claim.
The California courts are entitled to adjudicate claims properly within their jurisdiction free of litigants yanking the rug from under those courts. Defendants' conduct bespeaks a lack of the due respect to which the state courts are entitled. Accordingly, plaintiff should be entitled to recover his attorney fees and costs and may seek them by submitting appropriate substantiation.
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