Palma v. Cabrini of Westchester
- Vincent Briccetti
- 7:22-cv-05430
- U.S. District Court · Southern District of New York
- 2
In Palma v. Cabrini, Judge Briccetti granted a limited stay of remand and denied Palma’s request for attorney’s fees and costs.
The defendant received a limited stay of the remand order to allow time to file a notice of appeal. Palma did not receive the requested attorney’s fees and costs, and the case’s return to state court was delayed until September 14, 2022, for that limited purpose.
What happened
In Palma v. Cabrini of Westchester, the court had already sent the case to New York state court. A defendant asked to pause that order for 30 days so it could file an appeal. Palma opposed the request and sought attorney’s fees and costs.
The court determined that the remand order could be appealed because the case had been removed under the federal officer removal law. It therefore qualified for a 30-day stay under the federal court rules, even though the Clerk had already sent the order to state court.
Judge Vincent L. Briccetti granted the defendant’s motion for a limited stay and denied Palma’s request for attorney’s fees and costs. The court canceled the Clerk’s earlier execution of the remand order and stayed its further execution until September 14, 2022, solely to allow the defendant to file a notice of appeal.
The detailed version
- Palma v. Cabrini of Westchester · No. 7:22-cv-05430
- Vincent Briccetti
- Aug. 29, 2022
Background
In an opinion and order dated August 15, 2022, the court remanded the case to Supreme Court, Westchester County. The Clerk mailed a certified copy of that remand order to the state court, but the mailing was returned as undeliverable and was re-mailed on August 19 and August 26.
On August 17, a defendant moved under Federal Rule of Civil Procedure 62(a) for a 30-day automatic stay of the remand order so the defendant could file a notice of appeal. Palma opposed the motion and requested attorney’s fees and costs under 28 U.S.C. § 1447(c).
Stay of the Remand Order
The court held that the remand order was appealable because the case had been removed under the federal officer removal statute, 28 U.S.C. § 1442. Under 28 U.S.C. § 1447(d), a remand order in a case removed under that statute is reviewable on appeal. The court therefore treated the remand order as a judgment subject to the 30-day stay provided by Rule 62(a).
Although the Clerk had already executed the remand order, the court concluded that it retained authority to decide the request for a stay. The court stated that it was highly doubtful that the defendant could show that a permanent stay pending appeal was warranted, but it exercised its discretion to grant a limited stay to allow the defendant to file a notice of appeal.
Attorney’s Fees and Costs
The court recognized that it had jurisdiction to decide Palma’s request for fees and costs after issuing the remand order. It nevertheless declined to award them. The court noted that, although the basis for removal conflicted with the weight of recent nonbinding decisions, neither the Supreme Court nor the U.S. Court of Appeals for the Second Circuit had controlling authority barring removal under the circumstances. The court also noted that Palma had not requested fees and costs in the motion to remand and had raised the issue only in response to the motion for a stay.
Disposition
The defendant’s motion for a limited stay was GRANTED. Palma’s request for attorney’s fees and costs was DENIED. The Clerk’s earlier execution of the remand order was vacated, and further execution was stayed until September 14, 2022, solely to permit the defendant to file a notice of appeal. The Clerk was directed to send the order to Supreme Court, Westchester County, and to terminate the motion.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.