New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.

Commercial Litigation and Arbitration

New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
Commercial Litigation and Arbitration
« Back to Complex Lit Blog

Attorney as Officer of the Court Is Not a Federal Officer Permitting Removal under 28 U.S.C. § 1442 — Fees Awarded under § 1447(c) — Fed.R.App.P. 38 Sanctions Imposed

Download PDF

From Howard v. St. Germain, 2010 U.S. App. LEXIS 4727 (5th Cir. Mar. 5, 2010):

Appellants do not seek review of the district court's decision to remand. See 28 U.S.C. § 1447(d). Thus, we only consider the district court's decision to impose liability on all Appellants for Appellee's legal fees.

We review a district court's award for attorney's fees under the deferential abuse of discretion standard. *** Subsidiary factual findings underlying this award are reviewed for clear error. *** The decision to impose any fee award against one or all the Defendants, jointly and severally, is within the court's discretion. *** Section 1447(c) permits a district court to award "just costs and any actual expenses, including attorney's fees" that are incurred as a result of the removal. 28 U.S.C. § 1447(c).... The Supreme Court in Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005) noted that courts may award attorney's fees when the removing party lacks an objectively reasonable basis for removal. ***

The district court did not err in assessing attorney's fees against the Appellants. Appellants argue that their removal is supported by reasonable grounds because he is an officer of the court and because his case raises a constitutional question. While Section 1442 permits a pending state action to be removed for "any officer of the courts," the district court correctly found that Andrews was not an officer of the court in this context. The Supreme Court in Cammer v. United States, 350 U.S. 399, 405-08 (1956), determined that an attorney is not an officer of the court within the ordinary meaning of that term. See also Ex parte Garland, 71 U.S. 333, 378 (1866). In Cammer, the Court reversed the lower court's order because a contempt finding under 18 U.S.C. § 401 could only be assessed against "officers" of the federal courts. See Cammer, 350 U.S. at 408; see also Willingham v. Morgan, 395 U.S. 402, 406-08 (1969) (interpreting the purpose of 28 U.S.C. § 1442 as applying to only those cases where a federal officer required a federal forum and not intended for a private attorney to use to remove a state action to federal court on the basis that he was an "officer of the court"). ***

Appellee has moved under Rule 38 for sanctions and double costs and attorney's fees against Appellants. Federal courts have inherent power to impose sanctions for abuse of the judicial process. Chambers v. NASCO, Inc., 501 U.S. 32, 43-44 (1991). Rule 38 of the Federal Rules of Appellate Procedure authorizes an award of "just damages and single or double costs to the appellee" if we determine that an appeal is frivolous. *** An appeal is frivolous if "the result is obvious or the arguments of error are wholly without merit." *** Supreme Court cases exclude a private attorney from the meaning of "officer of the court," and the district court found Appellant's "officer of the court" argument to be a ridiculous, "farfetched notion." Appellants were on notice that the overruling of objections to remand was an obvious result when they were unable to support their argument at the district court. This appeal is frivolous for purposes of Rule 38.

Share this article:

Facebook
Twitter
LinkedIn
Email

Recent Posts

Inherent Power Sanctions — Dismissal for Threatening Defendant and Magistrate Judge — No First Amendment Right to Threaten Violence

RICO: Domestic Injury — Delivery of Fraudulently Non-Conforming Goods FOB Los Angeles for Shipment to China Means Injury Arose Domestically When Purchaser Took Title —Other Relevant Factors Include That The Non-Conforming Goods Were Sourced and Made in the U.S. and The Racketeering Activity (Mail/Wire Fraud) Occurred in, and Was Directed from, the United States — Irrelevant to Domestic Injury Inquiry Whether Property Is Tangible or Intangible — 7th Circuit’s “Injury-Felt” Test of Domestic Injury Rejected by Supreme Court — RICO Standing Requires Concrete Financial Loss, Not Merely Injury to Valuable Intangible Property Interest (9th Circuit)

RICO Causation: Parents of Children with Disabilities Deprived In-Person Education and Services during the Pandemic Were Not Causally Injured by Teachers’ False Assurances to Federal Authorities That IDEA-Complaint Policies Were in Place, Which Caused Funds to Issue But Not to the Benefit of the Disabled Children — Damages Too Indirect — Proper Plaintiff Is U.S. Government — Private Injunctive Relief Under RICO Uncertain in Third Circuit

Sanctions: Rule 37(b)(2) Dismissal — Sixth Circuit Factors

Inherent Power Sanctions — Extrajudicial Misconduct: Sanctions Power Extends to Conduct Intended to Sabotage Court’s Ability to Adjudicate the Case Before It, Here, By Commencing State Court Actions Seeking to Enjoin the Federal Plaintiffs from Proceeding with Their Federal Litigation — Sanctions Fee Awards: The Factors Used For Calculating A Fee Award To A Prevailing Party Do Not Govern — Under Goodyear, the Relevant Inquiry Is Whether There Is A Sufficient Causal Link Between The Sanctioned Misconduct And The Fees Awarded

RICO: Members of Association-in-Fact Enterprise Must Act with a Common Purpose—Mere Allegation That Various Defendants Agreed at Different Times to Engage in Various Fraudulent Schemes Does Not Plausibly Support the Essential Inference, That They Acted with s Sufficiently Common Purpose

RICO Causation: (1) State’s Misrepresentation to Federal Government That It Was Providing Plaintiffs with Mandated Special Education Did Not Cause Plaintiffs’ Injury Because The Failure to Provide The Education Was Not Caused by the Fraud on the Federal Government — (2) The Three Factors for Assessing RICO Causation — (3) Limits of the Second Circuit’s Decision in Alix v. McKinsey That Causation Can Be Established Where A Fraud On The Judiciary “Or Other Governmental Entity” Resulted In A Resource Going To Someone Less Deserving

Rule 41(b): Five Factors to Be Weighed in Deciding Whether Dismissal Is Appropriate (Second Circuit) — Is A Finding of Bad Faith or Fault Required if Dismissal Is Without Prejudice? — Undecided If Truly Without Prejudice But It Is Required If the Without Prejudice Dismissal Will Act as a Dismissal on the Merits (Here, Because of the Statute of Limitations) — Failure To Consider A Lesser Sanction Than Dismissal Is Generally An Abuse Of Discretion

Spoliation Sanctions/Mootness: Stipulation Resolving “All Pending Discovery Disputes,” Which Are Enumerated, Does Not Moot Subsequent Sanctions Motion for ESI Spoliation — Postjudgment Sanctions Order Is Appealable When District Court Has Finally Disposed of Both Liability and Amount

Rule 37 Default Judgment Sanction: (1) Default Judgment Appropriate Only As a Last Resort, When Less Drastic Sanctions Would Not Ensure Compliance with the Court’s Orders — (2) Default Judgment Sanction Requires Willful or Bad Faith Failure to Obey Discovery Order — (3) Fugitive Defendant’s Failure to Appear at Court-Ordered, Remote Deposition Despite Court Warning That Sanctions Could Follow Disobedience Warrants Default Judgment — (4) District Court Afforded Wide Discretion in Interpreting Its Own Orders — (5) Filing a Notice of Appeal from a Non-Appealable Order (Here, a Discovery Order) Does Not Deprive the District Court of Jurisdiction over the Case

Archives
New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.

New York Office

© 2024 Joseph Hage Aaronson LLC  
Disclaimer | Attorney Advertising Notice | Legal Notice