United States District Court, D. Utah
MEMORANDUM DECISION AND ORDER DENYING MOTION FOR
RECONSIDERATION AND CLOSING CASE
B. Pead, Magistrate Judge
October 17, 2019, the court entered a memorandum decision and
order granting Plaintiffs' Motion to Remand to State
Court, denying Defendants' Motion to Dismiss and denying
Plaintiffs' request for attorney fees. (ECF No.
29.) Plaintiffs now move the court to reconsider its
decision, or in the alternative to correct it. (ECF No.
30.) The court will deny the motion.
motion for reconsideration, not recognized by the Federal
Rules of Civil Procedure, Clough v. Rush, 959 F.2d
182, 186 n. 4 (10th Cir.1992), may be construed in one of two
ways: if filed within  days of the district court's
entry of judgment, it is treated as a motion to alter or
amend the judgment under Rule 59(e); if filed more than 
days after entry of judgment, it is treated as a motion for
relief from judgment under Rule 60(b).”
Computerized Thermal Imaging, Inc. v. Bloomberg,
L.P., 312 F.3d 1292, 1296 n. 3 (10th Cir. 2002). In
their initial moving papers Plaintiffs did not cite to any
Federal Rule in support of their motion for reconsideration
or correction, such as Rule 59 or Rule 60. See
Fed.R.Civ.P. 59, Fed.R.Civ.P. 60. In response to
Defendants arguments against reconsideration, (ECF No. 32),
Plaintiffs do invoke both Rule 59 and Rule 60. Under either
Rule the court is not persuaded to disturb its decision.
court first considers whether it can even review its decision
to remand. Under 28 U.S.C. § 1447(d), “[a]n order
remanding a case to the State court from which it was removed
is not reviewable on appeal or otherwise....” 28 U.S.C.
§ 1447(d). The Tenth Circuit has stated that
“While the statutory bar in 28 U.S.C. §
1447(d) limiting our review of a district court's
remand order is seemingly broad, it has been construed to
apply only to remands based on lack of subject matter
jurisdiction or on a timely raised defect in removal
procedure.” W. Ins. Co. v. A & H Ins.,
Inc., 784 F.3d 725, 728, 2015 WL 1867300 (10th Cir.
2015). In the order remanding this matter to state court, the
court determined that it lacks subject matter jurisdiction
because Plaintiffs lack standing. Thus, it appears a review
of the court's prior order pursuant to either Rule 59
or Rule 60 is somewhat suspect under the “on
appeal or otherwise” language found in Section 1447(d).
However, even if the court undertakes such a review
Plaintiffs arguments fail.
seek to draw a distinction between the language used in the
court's decision and their arguments. Specifically,
Plaintiffs cite to the court's statement that
“Plaintiffs argue in their Motion to Remand that
because they lack Article III standing, this case should be
remanded to state court.” Plaintiffs seek to clarify
their position arguing that “(1) since Defendants
removed this case from state court to federal court,
Defendants have the burden of establishing subject matter
jurisdiction and (2) since Defendants failed to meet that
burden, the Court must remand the case to state court.”
(ECF No. 30 p. 2-3.) This is a distinction without a
difference as the result is the same. The primary case relied
on by this court and asserted by Plaintiffs in their
arguments, involved facts where the plaintiffs agreed they
lacked standing. See, e.g., Collier v. SP Plus
Corporation, 889 F.3d 894 (7th Cir. 2018) (remanding
matter to state court where it was improper for the defendant
to remove to federal court and the plaintiffs agreed they
lacked standing). The matter is remanded to state court
because neither side establishes jurisdiction. Thus, there is
no need to correct the court's decision.
in their motion for reconsideration Plaintiffs again seek
attorney fees arguing an award is appropriate because of the
objective unreasonableness of Defendants' removal of this
case. As noted by the court in its decision, section 1447(c)
provides that 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.” 28 U.S.C. § 1447(c) (emphasis added).
The use of the term “may” provides discretion to
the court. Based on the circumstances of this case the court
already denied Plaintiffs' attorney fees request and
Plaintiffs do not offer any persuasive grounds to change the
prior decision. Moreover, although Defendants removal is
characterized as “questionable” by the court,
there is no direct controlling case-law in the Tenth Circuit
involving the procedural scenario this case presented. As
such, the court finds this matter does not warrant the
awarding of attorney fees. See Martin v.
Franklin Capital Corp., 546 U.S. 132, 141 (2005)
(stating that “courts may award attorney's fees
under § 1447(c) only where the removing party lacked an
objectively reasonable basis for seeking removal.”).
Motion for Reconsideration, or in the alternative, for
Correction is DENIED. The Clerk of the Court is directed to
close this case and this matter is remanded to ...