1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26 ORDER - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

CLIFFORD JOHNSTON, and 4 POINTS

LAKE, LLC, ET AL., 

Plaintiffs,

v.

HIMC CORPORATION, ET AL.,

Defendants.

Case No. C05-5745FDB

ORDER DENYING DEFENDANTS’

MOTION FOR RECONSIDERATION

AND GRANTING AWARD OF

ATTORNEY FEES

This matter is before the court on Defendants’ motion for reconsideration of the court’s

Order of Remand. Defendants also seek clarification of the court’s order of attorney fees to

Plaintiffs. In addition, Defendants filed a motion to consolidate with a separate federal action the

Defendants filed with the Hon. Thomas Zilly, ITI Internet Services et al. v. Solana Capital Partners,

et al., #05-2010 TSZ, (W.D.Wash). Plaintiffs responded with a memorandum on the status of the

case seeking clarification and Defendants replied to that memorandum with a motion to strike and for

sanctions. Finally, pursuant to the court’s order of remand, Plaintiffs have submitted their request

for attorney fees and costs, and Defendants have filed their objection to that request. Having

considered Defendants’ motion for reconsideration and balance of the record, the court finds that the

Case 3:05-cv-05745-FDB Document 42 Filed 02/06/06 Page 1 of 4
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

1

The court notes with interest, however, that protestations of judicial economy are not

extremely persuasive when Defendants crafted their complaint in the second action on the eve of trial

of the first. Moreover, there are several new parties, questions of law are not common (new

shareholders meeting and accounting versus securities fraud, RICO, and mail and wire fraud), and

the only common facts appear to involve one shareholders meeting. 

ORDER - 2

motion should be denied. Accordingly, the remaining motions will be dismissed as moot.1

I.

Motions for reconsideration are disfavored. CR 7(h)(1). The court will ordinarily deny such

motions in the absence of a showing of manifest error in the prior ruling or a showing of new facts or

legal authority which could not have been brought to its attention earlier with reasonable diligence. 

Defendants make no showing of manifest error nor have they provided the court with any newly

discovered evidence or intervening changes in controlling law to support the request for

reconsideration. 

Defendants argue that the court should reconsider the remand for two reasons. First, because

after seeking to remove this case to federal court, Defendants filed a separate federal action. 

Second, Defendants argue that the Supreme Court case of Martin, et ux v. Franklin Capital Corp,,

126 S. Ct. 704 (Dec. 7, 2005), announced the standard to be applied in award attorney fees in

remand cases. Neither of these arguments provides a basis for reconsideration.

II.

Assuming that the Defendants’ motion for consolidation is well-taken, the motion has no

relevance to whether Defendants properly removed the case. The undisputed facts as found by the

court in its Order of Remand, are that Defendants knew since August 2005, the basis upon which

they claimed this case was removable, yet did not file a notice of removal until November. In

addition, the court found that there was no legal basis for removal in the Securities Act of 1993, as

claimed by Defendants. 

 The Martin case does not mandate reconsideration. In Martin, the Supreme Court explained

Case 3:05-cv-05745-FDB Document 42 Filed 02/06/06 Page 2 of 4
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26 ORDER - 3

that while fees are not presumed, a district court retains discretion to award fees under the attorney

fee provision of the removal statute only when the removing party lacked an objectively reasonable

basis for seeking removal. 126 S.Ct. at 711. As noted above and in the order of remand,

Defendants lacked an objectively reasonable basis for seeking removal. Neither law nor fact

supported Defendants’ claim that their notice was timely filed. 

III.

Plaintiffs seek attorney’s fees in the amount of $10,440.00 and costs in the amount of

$957.20. Defendants object to the inclusion of any “post” removal expense, and object to costs of

travel for two witnesses scheduled to appear in the state court action before it was continued

pending removal and remand. Defendants do not object to the hourly rate claimed by Plaintiffs. 

Defendants state that if the court’s order is not voided or otherwise modified on reconsideration, fees

and costs awarded to Plaintiffs’ counsel may not exceed $8,242.50. 

The court does not agree that any expense post-removal cannot be included in the award, but

that the expense must be related or have been incurred because of the removal. The court finds

further that the attorney fees sought by Plaintiffs are reasonable and were necessarily incurred as a

result of Defendants’ improper untimely removal. Costs in the amount of $957.20 related to travel

for witnesses in the state court case, however, shall not be allowed.

ACCORDINGLY,

IT IS ORDERED:

(1) Defendants’ motion for reconsideration (Dkt.#23) is DENIED;

(2) Plaintiffs’ motion for attorney fees (Dkt.#28) in the amount of $10,440.00 is

GRANTED, and shall be paid by Defendants to Plaintiffs’ counsel within sixty (60)

days of the date of this Order; 

Case 3:05-cv-05745-FDB Document 42 Filed 02/06/06 Page 3 of 4
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26 ORDER - 4

(3) Defendants’ motion to consolidate (Dkt.#25 ); Plaintiffs’ Memorandum on Status of

the Case (Dkt. #37) and Defendants’ Motion to Strike (Dkt.# 39) are DENIED.

DATED this 6th day of February, 2006.

A

FRANKLIN D. BURGESS

UNITED STATES DISTRICT JUDGE

Case 3:05-cv-05745-FDB Document 42 Filed 02/06/06 Page 4 of 4