Savino v. Kerwick Savino

13-3617
Savino v. Kerwick Savino
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
14th day of January, two thousand fifteen.
PRESENT:
ROSEMARY S. POOLER,
GERARD E. LYNCH,
CHRISTOPHER F. DRONEY,
Circuit Judges.
_____________________________________
Kenneth D. Savino,
Plaintiff-Appellee,
v. 13-3617
Colleen Kerwick Savino,
Defendant-Appellant.1
_____________________________________
FOR PLAINTIFF-APPELLEE: Jon T. Kukucka, Budlong & Barrett, LLC,
Hartford, CT.
FOR DEFENDANT-APPELLANT: Colleen M. Ni Chairmhaic, pro se, Avon, CT.
Appeal from an order of the United States District Court for the District of Connecticut
(Shea, J.).
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The Clerk of the Court is directed to amend the case caption as above.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the order of the district court is AFFIRMED.
Appellant Colleen Kerwick Savino, an attorney proceeding pro se2, appeals the district
court’s grant of attorney’s fees to Appellee Kenneth D. Savino. We assume the parties’
familiarity with the underlying facts, procedural history, and specification of issues for review.
“[O]ur review of a district court’s award of attorney’s fees and costs under [28 U.S.C. §]
1447(c) is for abuse of discretion.” Calabro v. Aniqa Halal Live Poultry Corp., 650 F.3d 163,
166 (2d Cir. 2011). “A district court has abused its discretion if it based its ruling on an
erroneous view of the law or on a clearly erroneous assessment of the evidence, or rendered a
decision that cannot be located within the range of permissible decisions.” In re Sims, 534 F.3d
117, 132 (2d Cir. 2008) (brackets, citations, and internal quotation marks omitted).
Kerwick Savino argues that the district court deprived her of her procedural due process
right to an opportunity to be heard before awarding attorney’s fees and costs under 28 U.S.C. §
1447(c). Assuming that procedural due process conditions attach to such an award, the record
demonstrates that Kerwick Savino was afforded an adequate opportunity to be heard before the
district court remanded and awarded attorney’s fees and costs.
Anticipating a motion to remand, Kerwick Savino explained with considerable detail in
her notice of removal her argument that the domestic relations exception to federal jurisdiction
did not apply. Kerwick Savino reiterated that argument in her Opposition to the “Motions for
Custody and Evaluations,” which she filed after Savino moved for the attorney’s fees and costs
2
Although the docket and the briefing in this Court list Appellant’s name as “Colleen
Kerwick Savino,” she has entered her appearance in this action using the Irish Gaelic
spelling of her maiden name – “Ni Chairmhaic.”
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at issue, and before the district court issued its remand order and award of attorney’s fees and
costs. That is also the same argument that Kerwick Savino has pressed on appeal for why the
attorney’s fees and costs should not have been awarded. Kerwick Savino was also provided
with an opportunity to contest the amount of the requested attorney’s fees, and the district court
reduced the fee request after considering Kerwick Savino’s opposition. Given these
circumstances, we are satisfied that Kerwick Savino was afforded an adequate opportunity to
present her opposition to the district court before the district court awarded attorney’s fees and
costs.
Further, the district court did not abuse its discretion in concluding that attorney’s fees
and costs pursuant to 28 U.S.C. § 1447(c) were appropriate here. It is “settled law that a case
may not be removed to federal court on the basis of a federal defense.” Caterpillar Inc. v.
Williams, 482 U.S. 386, 393 (1987) (emphasis in original). The district court’s conclusion that
removal was inappropriate under the well-pleaded complaint rule was therefore correct. It is
clear from Kerwick Savino’s arguments in this Court, which base her arguments for federal
jurisdiction on various asserted federal defenses to Savino’s application for sole custody, that
she lacked an “objectively reasonable basis for seeking removal,” and thus Savino was entitled
to fees under 28 U.S.C. § 1447(c). Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005).
We have considered Kerwick Savino’s remaining arguments and find them to be without
merit. Accordingly, we AFFIRM the order of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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