League of Women Voters of Pa. v. Pennsylvania, CIVIL ACTION NO. 17-5137

• Decision Date: 13 April 2018
• Docket Number: CIVIL ACTION NO. 17-5137
• Parties: LEAGUE OF WOMEN VOTERS OF PENNSYLVANIA, et al. v. THE COMMONWEALTH OF PENNSYLVANIA, et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

LEAGUE OF WOMEN VOTERS OF PENNSYLVANIA, et al. v. THE COMMONWEALTH OF PENNSYLVANIA, et al.

CIVIL ACTION NO. 17-5137

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

April 13, 2018

MEMORANDUM

Baylson, J.

I. Introduction

Plaintiffs League of Women Voters, et al. seek attorney's fees in the amount of $49,616.50 and costs in the amount of $3,120.02 for Defendant Senator Joseph Scarnati's allegedly improper removal of this case to this Court in a challenge to Pennsylvania's congressional map.

This Court must therefore decide whether Plaintiffs may recover fees and costs related to the removal of this case to federal court, whether the work expended was reasonable (and at what rates), and who, ultimately, should be liable.

II. Brief History of this Litigation

A short chronology of events is appropriate to set the background for the disposition of this issue. This case was filed in the Commonwealth Court of Pennsylvania on June 15, 2017, asserting claims brought exclusively under the Pennsylvania Constitution that Congressional districts in Pennsylvania were improperly "gerrymandered" to favor election of Republican congressmen.

After the case was filed, a judge of the Commonwealth Court entered a stay of proceedings on October 16, 2017. The Pennsylvania Supreme Court, acting on a special writ, vacated the stay on November 9, 2017 and remanded the matter to the Commonwealth Court for a judge of that court to conduct an evidentiary hearing and make findings of fact by December 31, 2017.

On October 23, 2017, Governor Wolf issued a writ of election to set the date of a special election to fill the then-vacant congressional seat for the Eighteenth District. That writ of election set the date for the special election for March 13, 2018.

On November 14, 2017, Senator Scarnati removed the Commonwealth Court case to this Court. Senator Scarnati sought removal under 28 U.S.C. § 1441, and asserted that the removal was timely under 28 U.S.C. § 1446(b)(3) because it was filed within 30 days of receipt of "an amended pleading, motion, order or other paper" making the case removable. (Removal Pet. ¶¶ 20-22, ECF 1.) Specifically, Senator Scarnati argued that the writ of election, which he claimed was issued by Governor Wolf pursuant to authority conferred by Article I, Section 2, Clause 4 of the U.S. Constitution, was an "order or other paper" "introduc[ing] a new, central federal question squarely into this matter," such that this court possessed federal question jurisdiction. (Id.)

The case was assigned to me as a "related" case to Agre v. Wolf, Civil Action No. 17-4392, a gerrymandering case pending before a three judge court pursuant to 28 U.S.C. § 2284(a). Motions to Remand were filed on November 16, 2017 by Plaintiffs and by Defendant Lieutenant Governor Stack (who had not consented to removal), asserting that the removal was improper, and seeking remand to the Pennsylvania Supreme Court. (Pls.' Mot. to Remand, ECF 2; Stack Mot. to Remand, ECF 5.) That same day, after this Court had scheduled a hearing for 2:00 PM that afternoon, Senator Scarnati filed an "Emergency Motion to Withdraw Notice of Removal" at 1:30 PM seeking remand on the grounds that House Speaker Turzai did not consent to removal. (ECF 9.)

This Court held the hearing as scheduled at 2:00 PM on November 16, 2017, which some of Plaintiffs' counsel had traveled from Washington, DC to attend. Thereafter, the Court entered an order remanding the case to the Pennsylvania Supreme Court with prejudice. (Remand Order, ECF 15.)

At 5:23 PM on November 16, 2017, after the Court entered its order remanding the case, Speaker Turzai docketed a response to the removal motion, to which was attached an e-mail from his counsel to Senator Scarnati's counsel, stating that counsel had not discussed removal under 28 U.S.C. § 1441, but rather under 28 U.S.C. § 1443, which does include a requirement that all defendants consent to removal. (See ECF 21, Def. Turzai's Resp. to Mot. to Withdraw Notice of Removal.)

On November 30, 2017, Plaintiffs filed the instant motion requesting a total of $52,736.52 in fees and costs associated with the removal. (ECF 24.) Senator Scarnati filed a memorandum of law in opposition on December 14, 2017. (ECF 26.) Plaintiffs replied on December 21, 2017. (ECF 27.)

III. Summary of Parties' Arguments

Plaintiffs assert that Senator Scarnati's removal was improper for several reasons and that they are entitled to fees and costs, which Senator Scarnati disputes. It is undisputed that Senator Scarnati removed the state court action pursuant to 28 U.S.C. § 1441, the general statute allowing removal of actions to federal court.

Plaintiffs argue that the removal was procedurally improper under 28 U.S.C. § 1446, which sets a number of procedural requirements for removal, including actions removed under 28 U.S.C. § 1441. (Pls.' Mot. for Fees at 7-14, ECF 24.) Plaintiffs assert that Senator Scarnati did not obtain the consent of all defendants including the "Executive Defendants" (Governor Wolf andothers in the Executive Branch of the Pennsylvania state government) as required by 28 U.S.C. § 1446(b)(2)(A); and the removal was untimely under 28 U.S.C. § 1446(b)(2)(B). As a result, Plaintiffs assert, they are entitled to attorney's fees and costs under 28 U.S.C. § 1447(c), which allows district courts to award costs and fees associated with an improper removal. (Id.) Plaintiffs also assert Senator Scarnati's assertion of federal jurisdiction was frivolous, and that sanctions are warranted under Rule 11 and the Court's "inherent authority." (Id. at 18-20.)

Senator Scarnati responds that he initially had consent from Speaker Turzai to remove to federal court and it was not necessary to obtain the consent of the executive defendants because they were merely "nominal" defendants; the removal was timely; and he raised at least a colorable theory of federal jurisdiction. (Scarnati Opp. to Pls.' Fee Mot. at 4-15, ECF 25.)

Defendants also make a number of arguments to minimize their financial liability, if any:

• Plaintiffs should not be allowed to collect fees for the preparation of their fee motion ("fees on fees")

• Plaintiffs' counsel based in Washington, D.C. should be reimbursed at lower rates prevailing in Philadelphia

• Plaintiffs should not be allowed to charge for the costs of their Westlaw research

• The Court should not hold Senator Scarnati (in his personal capacity) and his lawyer jointly and severally liable

(Id. at 16-27.)

Plaintiffs dispute that Senator Scarnati has any favorable case law support for any of the propositions he advances, and reply that the hours expended were justified by the exigent nature of the pending removal. Plaintiffs further assert that their Washington-based counsel, despite working pro bono, should be compensated at their usual rate because it would have been impossible to engage other counsel on such short notice, and urge this Court to follow Baldus v.Members of Wisconsin Gov't Accountability Bd., 843 F. Supp. 2d 955 (E.D. Wis. 2012), a redistricting challenge in which a court held counsel for legislative defendants and their law firm jointly and severally liable for plaintiffs' fees and costs in a discovery dispute.

IV. Analysis

28 U.S.C. § 1447 provides that "a[n] order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal." Id. The Supreme Court recently clarified the standard for an award of attorney's fees when granting remand:

Absent unusual circumstances, courts may award attorney's fees under § 1447(c) only where the removing party lacked an objectively reasonable basis for seeking removal. Conversely, when an objectively reasonable basis exists, fees should be denied. In applying this rule, district courts retain discretion to consider whether unusual circumstances warrant a departure from the rule in a given case. For instance, a plaintiff's delay in seeking remand or failure to disclose facts necessary to determine jurisdiction may affect the decision to award attorney's fees. When a court exercises its discretion in this manner, however, its reasons for departing from the general rule should be faithful to the purposes of awarding fees under § 1447(c).

Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005) (affirming denial of fees where the plaintiff had waited fifteen months to file a remand motion and did not dispute the reasonableness of the defendant's removal arguments).

The Court finds that the "unusual circumstances" identified in Martin existed in this case, but will address the parties' arguments regarding jurisdiction.

A. Whether an objectively reasonable basis for removal existed

In the present fee petition, the parties dispute whether federal jurisdiction existed in this case, which asserted only questions of state law. Senator Scarnati asserts that federal jurisdiction was proper under Grable & Sons Metal Prod., Inc. v. Darue Eng'g & Mfg., 545 U.S. 308 (2005)and Gunn v. Minton, 568 U.S. 251, 258 (2013), which Plaintiffs dispute. Gunn established that "federal jurisdiction over a state law claim will lie if a federal issue is: (1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court without disrupting the federal-state balance approved by Congress." 568 U.S. at 258. In its opposition to the fee motion, Senator Scarnati identified the federal question as, "Does a writ issued under Article I, Section 2, Clause 4 of the United States Constitution preclude review of a federal congressional map under state law until the special election set by the writ is completed and the congressional seat filled?" (Scarnati Opp. to Pls.' Fee Mot. at 13, ECF 26.)

Plaintiffs assert that the Grable and Gunn factors were not met, and the removal was a transparent attempt to interrupt ongoing state court proceedings in which the state courts would have been interpreting their...