“We take this opportunity to state definitively that vexatious removal is sanctionable conduct, and parties will be held accountable for the unnecessary expense and delay caused by abuses of the right to removal.” So said the Court in Ex Parte: Bon Secours-St. Francis Xavier Hospital, 393 S.C. 590, 713 S.E.2d 624 (2011).
In that case, the Hospital and others waited to the eve of trial to file a second notice of removal to federal court. The Plaintiff, Dr. Thomas R. Wieters, moved to remand yet did not ask the federal court to impose sanctions. He instead informed the federal court that the state court could take up sanctions after remand. The federal court remanded without ruling on whether the removal met the 28 U.S.C. § 1447(c) standard for sanctioning improper removals..
After remand, the state trial judge found that the second removal was based on the same grounds as the first removal, was without merit, and was interposed solely for delay. The court ordered a variety of sanctions, including costs and fees to Dr. Wieters and others.
On appeal, the Supreme Court agreed with the trial court that the second removal was patently without merit, was interposed for delay, and that the trial court could use South Carolina Rule 11 to sanction the removal. It also described the awards to Dr. Wieters as appropriate and reversed only the more unconventional awards to others. Justice Pleicones would not have reached the trial judge’s authority to impose a state sanction where the federal court chose not to impose a § 1447(c) sanction..
The Court left open whether South Carolina Rule 11 applies to removals that are not sanctionable under § 1447(c). Absent unusual circumstances, § 1447(c) sanctions do not apply if the removal is objectively reasonable. Martin v. Franklin Capital Corp., 546 U.S. 132 (2005). In contrast, South Carolina Rule 11 applies to all papers interposed for delay. What then about a removal that passes the reasonableness test yet is interposed for delay?
Courts are split. The New Mexico Court of Appeals reversed a state sanction for an improper removal that was entered without finding a violation of the federal standard. Barela v. Barela, 95 N.M. 207, 619 P.2d 1251 (N.M.App. 1980). In contrast, the Court in Nodier v. Ungarino & Eckert, L.L.C., No. 2006 CA 1461, 2007 WL 1300805 * 6 (La.App. May 4, 2007), reasoned that a defendant is answerable for each notice of removal filed in the respective state and federal courts, according to the law applicable to each court.
This issue did not arise in Bon Secours because the Court majority concluded that the removal was patently without merit. This, of course, satisfies both the federal and state standards for sanctions.
What do you think? Will the case deter improper removals? Please leave a reply or reach me at www.attorneyroberthill.com.