Ebert v. Herwick

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 13, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
JOHN C. EBERT, d/b/a Flint Rock
Rentals,
Plaintiff - Appellee,
v. No. 16-3085
(D.C. No. 5:16-CV-04030-DDC-KGS)
ROBERT S. HERWICK; INGRID (D. Kan.)
HERWICK,
Defendants - Appellants.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HOLMES, BALDOCK, and BACHARACH, Circuit Judges.
_________________________________
This action was initiated by plaintiff John C. Ebert in Kansas state court as a
petition for eviction for failure to make payments due under a real estate rental
agreement. The renters, defendants Robert S. and Ingrid Herwick, filed an answer in
which they alleged fraud in the inducement and various contractual breaches by
Mr. Ebert and asserted a counterclaim for $100,000. Shortly thereafter, they filed a
notice of removal in the United States District Court for the District of Kansas,
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
invoking the district court’s federal-question jurisdiction and claiming the matter was
removable under 28 U.S.C §§ 1441 and 1446.1 Mr. Ebert moved to remand the case
to state court, arguing there had been no valid jurisdictional basis for removal. The
district court agreed. It remanded the case and ordered the Herwicks to pay $200 in
costs and fees pursuant to 28 U.S.C. § 1447(c). The Herwicks appealed. We dismiss
the appeal in part and otherwise affirm the order of the district court.
Mr. Ebert has moved to dismiss this appeal for lack of jurisdiction under
§ 1447(d), which bars review of orders that remand removed proceedings for lack of
subject matter jurisdiction. See Topeka Hous. Auth. v. Johnson, 404 F.3d 1245, 1248
(10th Cir. 2005) (enforcing bar where, as here, district court remanded case for lack
of valid jurisdictional basis for removal). The motion to dismiss is meritorious
insofar as the appeal challenging the remand itself is concerned. See id. In that
regard, the aspersions cast by the Herwicks on the courts and laws of Kansas do not
provide any basis for circumventing the command of § 1447(d).
“We do, however, have jurisdiction to review the grant of attorney fees and
costs,” Topeka Hous. Auth., 404 F.3d at 1248, to which the Herwicks also object on
appeal, see Aplt. Opening Br. at 3. We have explained our review of such awards as
follows:
1
The notice of removal also referred to an “amount in controversy” in excess
of $75,000.00, which would have been relevant only to diversity jurisdiction. The
Herwicks insist that removal was based solely on federal-question jurisdiction, and
even criticize the district court for considering (and rejecting) diversity as a basis for
removal. Accordingly, we do not consider diversity jurisdiction here.
2
Section 1447(c) states, “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 court’s decision to grant a fee award is reviewed
for abuse of discretion, while the underlying legal analysis is reviewed
de novo. No showing of bad faith is necessary to justify the award. What
is required to award fees, however, is a showing that the removal was
improper ab initio.
Topeka Hous. Auth., 404 F.3d at 1248 (citation and internal quotation marks
omitted). Hence we must still consider the legal basis for the remand order as part of
our review of the award of fees and costs under § 1447(c).
Mr. Ebert’s eviction petition, based on Kansas law, obviously did not entail a
federal question. The Herwicks relied on their counterclaim, which they vaguely
described as involving “multiple federal and state offenses,” as the basis for invoking
federal-question jurisdiction in the notice of removal. R. at 7. But, as the district
court explained, “[a]bsent circumstances not present here [i.e., application of the
complete-preemption doctrine] . . ., a case may not be removed to federal court solely
because of a defense or counterclaim arising under federal law.” Topeka Hous.
Auth., 404 F.3d at 1247 (citing Holmes Grp., Inc. v. Vornado Air Circulation Sys.,
Inc., 535 U.S. 826, 830-31 n.2 (2002)). On appeal, the Herwicks simply reassert
their argument for federal-question removal jurisdiction on the basis of the
counterclaim without addressing this basic flaw in the argument. We conclude
“[r]emoval was therefore improper, and the district court could exercise its discretion
to assess reasonable costs and fees.” Id. at 1248. That the Herwicks are pro se
litigants does not alter that conclusion. See id. Indeed, the district court noted they
had particular reason to be aware of the impropriety of the removal here, having
3
ineffectually removed another Kansas state eviction proceeding before doing the
same thing here. See R. at 95-96.
As for the amount of the award, the district court followed the example of a
prior case, In re Marriage of King v. Ziegler, No. 04-4158-SAC, 2004 WL 3037968,
at *2 n.1 (D. Kan. Dec. 16, 2004), which had determined “that $200 represents a fair
and reasonable award of fees and costs” for the burden of opposing an improper
removal. R. at 96. Although that sum “likely was less than the actual expenses and
costs incurred in filing the motion to remand,” Ziegler concluded it was reasonable in
light of the removing party’s pro se and in forma pauperis status, and the district
court did the same here. Id. at 96-97. We discern nothing facially unreasonable in
this approach, nor do the Herwicks raise any particular objection to the amount of the
award. Under the circumstances, we cannot say the district court abused its
discretion.
The motion to dismiss the appeal is granted insofar as appellants seek reversal
of the order of removal. The district court’s award of fees and costs under § 1447(c)
is affirmed. Appellants’ motions to strike appellee’s answer brief, for an immediate
award of summary judgment, and for sanctions against appellee are denied.
Entered for the Court
Bobby R. Baldock
Circuit Judge
4