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Gonero v. Union Pacific Railroad Co.

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


December 29, 2009

ALEX GONERO, PLAINTIFF,
v.
UNION PACIFIC RAILROAD COMPANY, ANDREW RIBBING, LEO J. MARIN, JOHN PARKER AND DENNIS MAGURES AND DOES 1 THROUGH 10, INCLUSIVE, DEFENDANTS.

MEMORANDUM AND ORDER RE: REQUEST FOR BRIEFING

Having read the briefs provided by the parties, the court concludes that oral argument is unnecessary. The court will, therefore, vacate the hearing set for January 4, 2010 and take the matter under submission pursuant to Eastern District Local Rule 230(g).

On November 24, 2009 this court ordered briefing on the limited question of whether this court has subject matter jurisdiction over the instant lawsuit. Defendants and plaintiff agree that this court's October 16, 2009 Order (Docket No. 26) denying defendants' motion to dismiss implicitly determined that the individually named defendants were not fraudulently joined. This court, therefore, no longer has subject matter jurisdiction over the instant lawsuit pursuant to 28 U.S.C. § 1332 and will remand this action to state court. The court rejects the defendants' argument that it must vacate its October 16, 2009 Order, as so doing would vacate the grounds on which the remand is based.

In his brief to this court regarding its subject matter jurisdiction, counsel for the plaintiff moves the court for attorneys' fees and costs related to defendants' removal of the case to federal court. An order remanding a removed case to state court "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). Courts use their discretion when evaluating requests under § 1447(c), and "absent unusual circumstances, attorney's fees should not be awarded when the removing party has an objectively reasonable basis for removal." Martin v. Franklin Capital Corp., 546 U.S. 132, 136 (2005). Although this court concluded that defendants' theory that the individually named defendants were fraudulently joined was without merit, it does not follow that the theory was necessarily objectively unreasonable. There are at least two sides to every argument, and one side always has to lose. That does not mean, however, that the losing side must always pay attorneys fees.

The court concludes an award is not appropriate in this case.

IT IS THEREFORE ORDERED that this action be, and the same hereby is, REMANDED to the Placer County Superior Court of California.

IT IS FURTHER ORDERED that plaintiff's request for attorneys' fees is DENIED.

20091229

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