requires removal within thirty days of receipt, "through service or otherwise," of a paper from which it may be first ascertained that a matter is removable. 28 U.S.C. § 1446(b). Because Defendants first received on 10 November 1995 a copy of the Stipulation the "other paper from which it [was] first . . . ascertained that the case [was] . . . removable," they had thirty days from that date, or until 11 December 1995, to remove the instant matter. The Amended Removal Petition was untimely filed on 14 December 1995; remand is therefore also warranted on this basis. See Section 1446(b).
E. Recovery of Expenses Pursuant to Section 1447(c)
Plaintiffs seek costs and attorney fees in connection with the Motion to Remand. In support of their motion for costs and fees, Plaintiffs observe that they "have been required to respond to two separate Notices of Removal, neither of which were filed within the mandatory thirty day period. . . ." Moving Brief at 20. Moreover, Plaintiffs allege "both Petitions for Removal fail to establish a prima facie case for removal to Federal court." Id.
"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." 28 U.S.C. § 1447(c). An award of costs and attorney's fees under Section 1447(c) is in the discretion of the court. Daleske v. Fairfield Communities, Inc., 17 F.3d 321, 325 (10th Cir.), cert. denied, 128 L. Ed. 2d 461, U.S. , 114 S. Ct. 1832 (1994), Moore v. Permanente Medical Group, Inc., 981 F.2d 443, 446 (9th Cir. 1992). A finding of bad faith by the removing party is not required for an award under Section 1447(c). Gotro v. R & B Realty Group, 69 F.3d 1485, 1487 (9th Cir. 1995) (citing Moore, 981 F.2d at 446); Daleske, 17 F.3d at 324 (citing Morris v. Bridgestone/Firestone, Inc., 985 F.2d 238, 240 (6th Cir. 1993)); Miranti v. Lee, 3 F.3d 925, 928-29 (5th Cir. 1993) (denying attorney's fees because the defendant's decision to remove was "reasonable" but also stating that a finding of bad faith is not required for an award under Section 1447(c)); Morgan Guar. Trust Co. v. Republic of Palau, 971 F.2d 917, 923-24 (2d Cir. 1992) (holding bad faith is not required for award under Section 1447(c)). An award under Section 1447(c) is appropriate whether remand is based upon a jurisdictional defect or a defect in the removal procedure LaMotte v. Roundy's, Inc., 27 F.3d 314, 316 (7th Cir. 1994).
As indicated, a review of the submissions demonstrates removal of this matter was improper on three grounds. There is no question that there was complete diversity between Plaintiffs and Defendants in this matter from its inception. In addition, Conair was a nominal defendant, and the citizenship of nominal defendants is disregarded for diversity purposes. Finally, even assuming the matter was not removable until Conair was dismissed from the action via the Stipulation, the Amended Removal Petition was not filed within thirty days of the date Defendants first received the Stipulation. An award of fees and costs, as requested, is therefore appropriate.
For the reasons stated, the Motion to Remand to the Superior Court is granted, and Plaintiffs are awarded costs and reasonable attorney fees associated with the instant motion, pursuant to Section 1447(c). An order accompanies this opinion.
ALFRED J. LECHNER, JR., U.S.D.J.
This matter having come before the court by way of a motion to remand filed by plaintiffs Eyal Lior and Sun Cupid International (U.S.) (collectively, the "Plaintiffs") in the above-captioned matter, and the court having considered the submissions of the parties, and for the reasons set forth in a Letter-Opinion filed on this date, and for good cause shown,
IT IS, on this 11th day of January, 1996,
ORDERED, that this matter be and hereby is remanded to the Superior Court of New Jersey, Chancery Division, Bergen County, pursuant to 28 U.S.C. § 1447(c); and it is further
ORDERED, that the Plaintiffs are awarded costs and reasonable attorney fees incurred in connection with the instant motion, pursuant to 28 U.S.C. § 1447(c); and it is further
ORDERED, that the parties are to schedule a conference with United States Magistrate Judge Dennis M. Cavanaugh, for a determination of costs and reasonable attorney fees.
ALFRED J. LECHNER, JR., U.S.D.J.