Calabro v. Aniqa Halal Live Poultry Corp.
2011 U.S. App. LEXIS 11958
| 2d Cir. | 2011Background
- Calabro, a USDA safety inspector, sues Aniqa for using his photographs in advertising under NY Civil Rights Law §§ 50, 51.
- Aniqa impleads Calabro and the USDA and asserts False Claims Act and Poultry Products Inspection Act claims against them.
- Aniqa removes to federal court invoking federal-question jurisdiction; Calabro moves to remand.
- District court remands for lack of federal question and awards $3,575 in fees and costs under 28 U.S.C. § 1447(a)-(c).
- On appeal, Aniqa challenges the remand order and the fee award; the court lacks appellate jurisdiction to review the remand but has jurisdiction to review the fee award.
- Court affirms the fee award under abuse-of-discretion review, concluding removal was objectively unreasonable and fees are warranted, while dismissing the remand rulings on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the remand order is reviewable on appeal | Aniqa asserts appellate review is available for remand orders. | Calabro argues remand is reviewable under 28 U.S.C. § 1447(d). | Remand order is not reviewable on appeal. |
| Whether the district court properly awarded attorney's fees under § 1447(c) | Aniqa contends the fee award was improper. | Calabro contends fees were warranted. | The fee award was proper; affirmed. |
| Whether removal was objectively reasonable to support § 1447(c) fees | Aniqa claims there was a colorable basis for removal. | Calabro argues removal lacked an objectively reasonable basis. | Removal was objectively unreasonable; fees appropriate. |
Key Cases Cited
- Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224 (U.S. 2007) (removal-remand jurisdiction limits under 1447(d))
- Kircher v. Putnam Funds Trust, 547 U.S. 633 (U.S. 2006) (removal decisions based on lack of subject-matter jurisdiction)
- Things Remembered, Inc. v. Petrarca, 516 U.S. 124 (U.S. 1996) (limits on appellate review of remand orders)
- Martin v. Franklin Capital Corp., 546 U.S. 132 (U.S. 2005) (absent unusual circumstances, 1447(c) fees awarded only when removal lacks objective reason)
- Holmes Group, Inc. v. Vornado Air Circulation Sys., Inc., 535 U.S. 826 (U.S. 2002) (precedent on when state law claims may invoke federal jurisdiction)
- Price v. J&H Marsh & McLennan, Inc., 493 F.3d 55 (2d Cir. 2007) (appellate review of § 1447(c) fees)
- In re WTC Disaster Site, 414 F.3d 352 (2d Cir. 2005) (multifactor approach to reviewing fee awards)
- Romano v. Kazacos, 609 F.3d 512 (2d Cir. 2010) (well-pleaded-complaint rule for federal jurisdiction)
- Mints v. Educ. Testing Serv., 99 F.3d 1253 (3d Cir. 1996) (circuits' view on § 1447(c) review)
- Morgan Guar. Trust Co. of N.Y. v. Republic of Palau, 971 F.2d 917 (2d Cir. 1992) (fee-shifting authority under § 1447)