DIEBEL

v.

S.B. TRUCKING CO.

This cause comes before the Court for consideration of Plaintiffs, Karen S. Die-bel (“Plaintiff’), Motion to Remand and for Award of Attorney’s Fees and Costs (Doc. No. 17). The Plaintiff filed her Motion (Doc. No. 17) and a memorandum in support (Doc. No. 18) on December¹², 2002. The Defendants, S.B Trucking Company, Hi Performance Truck Sales, Inc., and Robert L. Jackson, Jr. (“Defendants”), responded (Doc. No²⁶) on February³, 2003.

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Having reviewed the Motion and memo-randa, this Court GRANTS IN PART and DENIES IN PART the Plaintiffs Motion to Remand and for Award of Attorney’s Fees and Costs (Doc. No. 17). Insofar as the Plaintiff moves for remand, the Motion is GRANTED. Insofar as the Plaintiff moves for attorney’s fees and costs, the Motion is DENIED.

II. BACKGROUND

The Plaintiff is a citizen of the State of Florida,

1

and is the personal representative of the Estate of Dr. N. Donald Diebel, Jr. (“Dr.Diebel”),

2

her husband.

3

The Defendant, S.B. Trucking Company (“S.B.Trucking”), is a trucking company with its principal place of business in the State of Georgia.

4

The Defendant, Hi Performance Truck Sales, Inc. (“Hi Performance”), is a Georgia corporation; its principal place of business is also located in the State of Georgia.

5

The Defendant, Robert L. Jackson Jr. (“Jackson”), is a citizen of the State of Georgia.

6

This action is for personal injuries arising out of a tractor-trailer accident on the Florida Turnpike.

7

On June⁸, 2002, while Dr. Diebel was rendering assistance to occupants of a ve-hide involved in an automobile accident on the Florida Turnpike in Sumter County, Florida, the tractor-trailer Jackson allegedly was driving struck and killed Dr. Diebel.

8

Plaintiff asserts that Jackson’s negligence caused the secondary accident and, thus, Diebel’s death.

9

At the time of the accident, S.B. Trucking and Hi Performance were allegedly the titled and/or beneficial owners of the tractor-trailer.¹⁰

On July²⁶, 2002, the Plaintiff filed suit against the Defendants pursuant to Florida’s Wrongful Death Act, Fla. Stat. §§ 768.16-768.27, alleging causes of action for negligent operation, maintenance, and/or control of the tractor-trailer.¹¹

The lawsuit was filed in the Ninth Judicial Circuit Court, in and for Orange County, Florida (“the state court”).

12

On September¹⁴, 2002, Hi Performance was served with a Summons and Complaint.

13

Hi Performance responded by filing an Answer and Affirmative Defenses.

14

Subsequently, on October²⁸, 2002, S.B. Trucking and Jackson were served with a Summons and Complaint.

15

According to the Plaintiff, her delay in serving S.B.

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Trucking and Jackson was “not intentional or in bad faith.”

16

Rather, such service was delayed by the fact that the initial process server lost the original Summons and Complaint.

17

On November¹³, 2002, S.B. Trucking and Jackson filed a Notice of Removal from the state court to this Court pursuant to²⁸ U.S.C. §§ 1441(a) & (b)

18

and 1332(a);

19

removal was based on diversity jurisdiction.

20

The Notice of Removal provided, in pertinent part, as follows:

“The undersigned attorney has been authorized by Defendant, ROBERT L. JACKSON and S.B. TRUCKING COMPANY, to file this Notice of Removal of Cause.”

21

Hi Performance did not explicitly join in or consent to removal to the Middle District of Florida. In addition, the Notice of Removal fails to indicate whether counsel for S.B. Trucking and Jackson were authorized by Hi Performance to remove this action. This is problematic because at all times relevant herein Hi Performance had its own attorney.

22

S.B. Trucking and Jackson submitted Answers and Affirmative Defenses at the same time they filed their Notice of Removal.

23

Simultaneously, Hi Performance’s Answer and Affirmative Defenses were transferred from the state court to

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this Court.

24

On December¹¹, 2002, S.B. Trucking and Jackson filed a voluntary petition for bankruptcy in the Middle District of Georgia pursuant to Chapter¹³ of the United States Bankruptcy Code.

25

The following day, the Plaintiff filed the instant Motion to Remand and for Award of Attorney’s Fees and Costs

26

and memorandum in support

27

pursuant to²⁸ U.S.C. § 1447(c).

28

III. THE PARTIES’ ARGUMENTS

The Plaintiff raises three arguments for remanding this cause back to the state court.

29

Foremost, the Plaintiff argues that the Defendants’ Notice of Removal was untimely.

30

Pursuant to²⁸ U.S.C. § 1446(b), a “notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading.” Since the first Defendant, Hi Performance, was served on September¹⁴, 2002, and the Notice of Removal was not filed until November¹³, 2002, the Plaintiff contends that the notice was not filed within the applicable limitations period.

31

In response to that argument, S.B. Trucking and Jackson contend that the Notice of Removal was timely because they were not served until October²³, 2002, and the Notice of Removal was filed within thirty days of that date.

32

According to the Defendants, this Court should disregard the September¹⁴, 2002 service on Hi Performance because Hi Performance failed to exercise its removal right within the thirty day period before S.B. Trucking and Jackson were served, and it would be unfair to bind an “un-served defendant to a previously served defendant’s decision or neglect in failing to timely remove the case to Federal Court.”

33

The Plaintiff next argues that remand is appropriate because the Notice of Removal fails to indicate the status of Hi Performance.

34

According to the Plaintiff, the complete absence of any allegations concerning Hi Performance renders²⁸ U.S.C. *1325

§ 1441 unavailable as a possible basis for removal because under that provision all the Defendants must consent to removal.

35

In response, S.B. Trucking and Jackson argue that the consent of Hi Performance is unnecessary because that Defendant is merely a “nominal” or “formal” party to this litigation.

36

Alternatively, the Defendants argue that Hi Performance may timely consent to the Notice of Removal because a petition for removal is timely where all of the defendants who are required to join or consent, do so within thirty days of receipt of the notice.

37

In that connection, the Defendants state as follows:

In this case, JACKSON and S.B. TRUCKING filed their Notice of Removal on November 13, 2002, and consent by HI-PERFORMANCE would ordinarily be required no later than December 13, 2002. However, Defendant JACKSON d/b/a S.B. TRUCKING filed a Voluntary Petition for Bankruptcy on December 11, 2002, prior to the commencement [sic] of this 30-day period. This action, as well as any applicable limitations periods, is therefore tolled until such time that the Plaintiff obtains relief from the automatic stay imposed by § 362(a)

38

of the U.S. Bankruptcy Code.

39

S.B. Trucking and Jackson additionally claim that Hi Performance has consented to removal by formally demanding, on December¹⁷, 2002, that Jackson and S.B. Trucking tender Hi Performance a defense against the Plaintiffs claim.

40

According to S.B. Trucking and Jackson, “[u]pon execution and approval of substitution of counsel for HI-PERFORMANCE, the [defense counsel for S.B. Trucking and Jackson] will proceed as counsel of record for all named Defendants in this matter. As such ... [defense counsel for S.B. Trucking and Jackson] has obtained consent to removal of all named Defendants.”

41

The Plaintiffs final argument for remand is that the Defendants have not satisfactorily established diversity of citizenship.

42

In that regard, the Plaintiff states as follows:

It is Plaintiffs contention that the Defendant, S.B. TRUCKING COMPANY, is a corporation .. .If S.B. TRUCKING COMPANY is a corporation, as alleged by the Plaintiff and unrefuted by the Defendants, the Defendants have not established the corporate citizenship of

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S.B. TRUCKING COMPANY, as they have not specifically alleged S.B. TRUCKING COMPANY’S place of incorporation and its principal place of business.

43

The Plaintiff emphasizes this omission because the Florida Secretary of State’s records indicate that S.B. Trucking, which listed Jackson as its registered agent, was incorporated in the State of Florida as for-profit corporation until it was administratively dissolved in 2001 for failure to file an annual report.

44

In response to that argument, S.B Trucking and Jackson argue that “S.B. TRUCKING COMPANY

is not

incorporated in any state, and exists as a trade name/ ‘d.b.a’ of ROBERT L. JACKSON, JR. in the State of Georgia.”

45

IV. STANDARD OF REVIEW

The Constitution and Congress limit a federal court’s jurisdiction by restricting the types of cases which the federal courts may hear. See Kokkonen v. Guardian Life Ins. Co. of Am.,

511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391(1994);

Burns v. Windsor Ins. Co.,

31 F. 3d 1092, 1095 (11th Cir.1994).

For this reason, statutes authorizing removal of actions to federal courts are to be strictly construed against removal.

Shamrock Oil & Gas Corp. v. Sheets,

313 U.S. 100, 108-109, 61 S.Ct. 868, 85 L.Ed. 1214 (1941);

Burns,

31 F. 3d at 1094 (“[RJemoval statutes are construed narrowly; where the plaintiff and defendant clash about jurisdiction, uncertainties are resolved in favor of remand.”). In fact, because “[fjederal courts are of limited jurisdiction[,] ... there is a presumption against the exercise of federal jurisdiction, such that all uncertainties as to removal jurisdiction are to be resolved in favor of remand.”

Russell Corp. v. Am. Home Assurance Co.,

264 F. 3d 1040, 1050 (11th Cir.2001) (internal citations and quotations omitted).

It is well established that a removing party must present facts establishing its right to remove.

See Perez v. AT & T Co.,

139 F. 3d 1368, 1373 (11th Cir.1998);

see also Tapscott v. MS Dealer Serv. Corp.,

77 F. 3d 1353, 1356 (11th Cir.1996). When the defendant fails to do so, remand is favored.

Nevertheless, a federal court should “be cautious about remand, lest it erroneously deprive [a] defendant of the right to a federal forum.” 14A Charles Wright, Arthur Miller & Edward H. Cooper,

Federal Practice and Procedure,

§ 3721 at 218-19 (2d ed. 1985) (“Wright & Miller”).

V. LEGAL ANALYSIS

A. TIMELINESS

Title²⁸ U.S.C. § 1446(b) provides, in relevant part:

The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the

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claim for relief upon which such action or proceeding is based.

28 U.S.C. § 1446(b).

Pursuant to this limitations period, if the thirty day clock began to run on the date Hi Performance was served, then the Notice of Removal was untimely. Conversely, if the thirty period commenced on the date S.B. Trucking and Jackson were served, the Notice of Removal was timely.

The courts that have considered the timeliness issue in cases involving multiple defendants have adopted two approaches with respect to when the thirty day clock begins to run.

The first approach is referred to as the “single-date-of-removal” or “first-served” rule.

See Faulk v. Superior Indus. Int’l, Inc., 851

F.Supp. 457,

458 (M.D.Fla.1994); see also Smith v. Health Ctr. of Lake City, 252

F. Supp. 2d 1336, 1341 (M.D.Fla.2003). “The single-date-of-removal rule provides that in cases involving multiple defendants, the thirty day period begins to run as soon as the first defendant is served (provided the case is then removable).”

Id.

(internal citations and quotations omitted). “Thus, if the defendant who was served first fails to remove within thirty days, a subsequently served defendant may not remove even with the first defendant’s consent.”

Id.

“The single date of removal rule is consistent with the trend to limit removal jurisdiction and with the axiom that removal statutes are to be strictly construed against removal.”

Id.

The second approach is referred to as the “later-served” defendant rule.

Smith, 252

F. Supp. 2d 1336, 1341. Under this rule, “a later-served defendant has thirty days from his receipt of service to remove, with the consent of the other defendants.”

Id.

The later-served defendant rule reflects the view that allowing “the initially served defendant the choice of whether to remove, but binding that decision on later-joined defendants leads to inequitable results.”

Collings v. E-Z Serve Convenience Stores, Inc.,

936 F.Supp. 892, 895 (N.D.Fla.1996) (citing Wright & Miller,

supra,

§ 3732 at 531-32 (2d ed.1985)). Specifically, the later-served defendant rule seeks to prevent the following result obtained under the first-served rule:

[Wjhen some of the defendants are served after the first defendant served has waived the removal right by not exercising it within the statutory period, the subsequently served defendants are deprived of the opportunity to persuade the first defendant to join in the notice of removal.

Wright

&

Miller, supra, § 3732 at 339 (3rd ed.1998).

This Court’s research indicates that two decisions in the Middle District of Florida have adopted the “single-date-of-removal” or “first-served rule.”

See Faulk,

851 F.Supp. 457 at 457-59;

see also Smith,

252 F. Supp. 2d 1336, 1341-46. However, unlike the case at hand, in both of those cases the removing defendants were all served within the thirty day removal period so that no defendant was barred by an earlier served defendant’s failure to remove.

See Faulk,

851 F.Supp. 457 at 459;

see also Smith,

252 F. Supp. 2d 1336, 1346. In other words, when the later-served defendants were served they still had time under the “first-served” rule to obtain the consent of other defendants and file a removal notice.

Although it would ordinarily be appropriate for this Court to make a determination as to whether the “first-served” or “later-served” rule applies in this situation, where two of the defendants were served

*1328

after the removal period had expired for the first served defendant, this Court declines to reach that issue because another facet of the Plaintiffs Motion to Remand is well-grounded, and proves fatal to the Notice of Removal.

See Scialo v. Scala Packing Co., Inc.,

821 F.Supp. 1276, 1278 (N.D.Ill.1993) (declining to decide whether “later-served” or “first-served” rule applies because another “facet” of plaintiffs Motion to Remand was “well-grounded” and “fatal to the ... attempt to remove”);

see also

Wright

&

Miller,

supra,

§ 3732 at 339 n. 75 (3d ed.1998).

B. CONSENT

1. Generally

“[T]he law is well settled that in cases involving multiple defendants all defendants must consent to the removal of a case to federal court.”

Russell Corp. v. Am. Home Assurance Co.,

264 F. 3d 1040, 1049 (11th Cir.2001);

In re Bethesda Mem’l Hosp.,

123 F. 3d 1407, 1410 (11th Cir.1997) (“The failure to join all defendants in the petition is a defect in the removal procedure”);

In re Ocean Marine Mut. Prot. & Indem. Assoc., Ltd.,

In re Fed. Sav. & Loan Ins. Corp.,

837 F. 2d 432, 434 (11th Cir.1988) (“In cases involving multiple defendants, all defendants must consent to removal under section 1441(a)”). This rule is often referred to as the unanimity requirement.

See Russell Corp.,

264 F. 3d 1040 at 1044. “Like all rules governing removal, [the] unanimity requirement must be strictly interpreted and enforced because of significant federalism concerns arising in the context of removal jurisdiction.”

Id.

2. Application to this Case

Under the unanimity requirement, to effect removal “each defendant must join in the removal by signing the notice of removal or by explicitly stating for itself its consent on the record, either orally or in writing, within the 30-day period prescribed in²⁸ U.S.C. § 1446(b).”

Nathe v. Pottenberg,

931 F.Supp. 822, 825 (M.D.Fla.1995);

Smith v. Health Ctr. of Lake City,

252 F. Supp. 2d 1336, 1339 (M.D.Fla.2003) (“To show that all defendants have consented to removal, and thus, that the rule of unanimity has been followed, courts have held that the removing defendant must do more than simply state in the removal notice that all defendants consent to removal”);

but see Jasper v. Wal-Mart Stores, Inc.,

732 F.Supp. 104, 105 (M.D.Fla.1990) (“Additionally, all defendants served at the time of filing the petition, must join in the removal petition; the petition must be signed by all defendants or the signer must allege consent of all defendants”).

In this case, the record reflects that Hi Performance did not join the Notice of Removal (Doc. No. 1) within the required³⁰ days. This is the case whether the thirty day count began the day after Hi Performance was served (September¹⁴, 2002), which places the deadline on Monday, October¹⁴, 2002,

46

or the day after S.B. Trucking and Jackson were served (October²³, 2002), which places the deadline on Friday, November²², 2002.

47

Moreover, this is the case even when factoring in the Chapter¹³ Bankruptcy filing on December¹¹, 2002. Indeed, assuming, without deciding, that the automatic stay

*1329

tolls the 30-day removal period under²⁸ U.S.C. § 1446(b), since the 30-day period had already expired on the date of the bankruptcy filing, the bankruptcy petition is irrelevant. Simply stated, even under the most generous deadline of November²², 2002, the Defendant, Hi Performance, did not indicate its consent to removal to this Court.

It is important to note that this defect is not cured by the fact that Hi Performance filed an Answer and Affirmative Defenses in this Court on November¹³, 2002.

See Nathe,

931 F.Supp. 822 at 825 (“This defect in the removal notice is not cured by ... filing an answer”). Moreover, this defect is not cured by the fact that the defense counsel for S.B. Trucking and Jackson expects to represent Hi Performance in the near future.

See Smith,

252 F. Supp. 2d 1336, 1340 n. 8. The Notice of Removal was signed by S.B. Trucking and Jackson’s counsel only on behalf of S.B. Trucking and Jackson. “This ... is insufficient to show that all defendants consented to removal.”

Id.

(recognizing that although all three defendants are now represented by the same counsel who filed the Notice of Removal, where counsel only represented one defendant at the time the Notice of Removal was filed, the Notice was insufficient to show that all defendants consented to removal).

Accordingly, unless an exception applies, or alternatively, this Court allows the Defendants to correct this deficiency, this cause must be remanded to the state court for all further proceedings.

S. Exceptions

There are three exceptions to the unanimity rule; namely: “(1) the non-consenting defendants had not been served with process at the time the notice of removal was filed; (2) the unconsenting defendants are nominal or formal defendants; or (3) removal is pursuant to § 1441(c).”

48

Bradwell v. Silk Greenhouse, Inc.,

828 F.Supp. 940, 943 n. 2 (MD.Fla.1993).

In this case, the non-consenting

49

defendant had been served with process at the time the Notice of Removal was filed. Furthermore, as noted above, the Notice of Removal was not executed pursuant to²⁸ U.S.C. § 1441(c). Accordingly, the Court need only consider whether Hi Performance is a nominal or formal party.

In general “nominal or formal parties, being neither necessary nor indispensable, are not required to join in the petition for removal.”

Smith v. Health Ctr. of Lake City,

252 F. Supp. 2d 1336, 1339 n. 5 (M.D.Fla.2003) (quoting

Tri-Cities Newspapers, Inc. v. Tri-Cities Printing Pressmen and Assistants’ Local 349, Int’l Printing Pressmen and Assistants’ Union of N.A.,

427 F. 2d 325, 327 (5th

*1330

Cir.1970)).

50

“The ultimate test of whether the ... defendants are ... indispensable parties ... is whether in the absence of the [defendant], the Court can enter a final judgment consistent with equity and good conscience which would not be in any way unfair or inequitable to plaintiff.”

Smith,

252 F. Supp. 2d 1336, 1339 n. 5 (internal citations and quotations omitted). Whether a party is necessary or indispensable “depends on the facts in each case.” See

Tri-Cities Newspapers, Inc.,

427 F. 2d 325 at 327 (internal citations and quotations omitted).

The record reflects that Hi Performance entered into a thirty month agreement with S.B Trucking and Jackson for the lease of the tractor-trailer involved in this incident.

See

Doc. No. 26 at 7-9. Under Florida law, a lessor “who authorizes and permits an instrumentality that is peculiarly dangerous in its operation to be used by another on the public highway is liable in damages for injuries to third persons caused by the negligent operation of such instrumentality on the highway by one so authorized by the owner.”

Ady v. Am. Honda Fin. Corp. 675 So. 2d 577, 580 (Fla.1996) (quoting

Southern Cotton Oil Co. v. Anderson,

80 Fla. 441, 86 So. 629, 638 (1920)). This is known as the dangerous instrumentality doctrine, which “seeks to provide greater financial responsibility to pay for the carnage on our roads.”

Id.

“It is premised on the theory that one who originates the danger by entrusting [a vehicle] ... to another is in the best position to make certain that there will be adequate resources with which to pay the damages caused by its negligent operation.”

Id.

“The dangerous instrumentality doctrine is unique in Florida and has been applied with very few exceptions.”

Id.

In light of the dangerous instrumentality doctrine, this Court finds that Hi Performance does not meet the test for a nominal or formal party. In other words, in the absence of Hi Performance, this Court finds that it could not enter a final judgment consistent with equity and good conscience which would not be in any way unfair or equitable to the Plaintiff.

51

Ac

*1331

cordingly, this Court must remand this cause unless the law allows the Defendants to correct the Notice of Removal to reflect the consent of Hi Performance.

4. Correction of Deficiencies

In general, “[deficiencies in the notice of removal can be corrected within the thirty day time period; however, once the thirty day time period has elapsed the notice of removal may be amended only to set out more specially grounds of removal that already have been stated, albeit, imperfectly in the original petition.”

Bradwell v. Silk Greenhouse, Inc.,

828 F.Supp. 940, 943 (M.D.Fla.1993); see

also Denton v. Wal-Mart Stores, Inc.,

733 F.Supp. 340, 341 (M.D.Fla.1990) (“Assuming that a petition for removal is properly filed, it may be amended freely only within the statutory period of thirty days from service of the complaint. Thereafter, it may be amended only to set forth more specifically grounds for removal which were stated imperfectly in the original petition”);

Alexander By Alexander v. Goldome Credit Corp.,

772 F.Supp. 1217, 1221 (M.D.Ala.1991) (“Once the initial thirty-day period for removal set forth in²⁸ U.S.C. § 1446(b) has expired, however, the notice of removal may be amended only to set out more specifically grounds for removal that already have been stated, albeit imperfectly, in the original petition”) (quoting Wright & Miller, supra, § 3733 at 537 (2d ed.1986)).

In this case, the thirty day period for removal set forth in²⁸ U.S.C. § 1446(b) has expired.

52

Accordingly, the Defendants can only amend their petition if indicating the consent of a co-defendant falls within the narrow purview of setting out more specifically grounds of removal that already have been stated, albeit imperfectly, in the original petition.

This Court finds that it does not. “The absence of allegations that all defendants

*1332

consent to removal is a substantive, rather than technical defect,” and thus, “the notice of removal may not be amended following the thirty day period to include such an allegation.”

Alexander by Alexander,

772 F.Supp. at 1221-1222;

see also Ross v. Thousand Adventures of Iowa, Inc.,

163 F. Supp. 2d 1044, (S.D.Iowa 2001) (“Whether a removing defendant mentions joinder or other defendants in an original notice of removal goes beyond matters of form. It is an important issue which should be noted in an original notice of removal”);

Bellone v. Roxbury Homes, Inc.,

748 F.Supp. 434, 437 n. 1 (W.D.Va.1990) (denying defendant’s request to amend petition to allege consent to removal of co-defendant who had not joined petition when it was originally filed because thirty day time period had expired, and such an amendment was not the “minor amendment that is allowed”).

C. DIVERSITY JURISDICTION

In this case, S.B. Trucking and Jackson based their Notice of Removal on diversity jurisdiction.

53

See generally

Notice of Removal (Doc. No. 1). The record reflects, however, that the Plaintiff and S.B. Trucking might have the same State of citizenship; namely, Florida.

It is undisputed that S.B. Trucking was a Florida corporation until it was administratively dissolved on September²¹, 2001.

See

Doc. No. 26 at 11-13. It is also undisputed that since that time Jackson has continued to utilize the name, S.B. Trucking in the operation of his business in the State of Georgia.

See id.

at 12. In fact, at the time of the accident at issue, which occurred on a Florida highway, and at the time this action was initiated, Jackson was operating under the trade name, S.B. Trucking.

See id.

This is problematic from a jurisdictional standpoint because under Florida law “a dissolved corporation continues its corporate existence.” Fla. Stat. § 607.1406.

Although it might otherwise be appropriate for this Court to make a determination as to the citizenship of an inactive

corporation

54

,

this Court declines to reach that issue because, as explained in §§ V A. *1333

& B. of this Order, another “facet” of the Plaintiffs Motion to Remand is “well-grounded”, and proves “fatal” to the Notice of Removal.

Scialo v. Scala Packing Co., Inc.,

821 F.Supp. 1276, 1278 (N.D.Ill.1993);

see

also Wright & Miller,

supra,

§ 3732 at 339 n. 75 (3d ed.1998).

At the very least, however, this Court notes that the former status of S.B. Trucking raises grave questions about whether this Court can properly exercise subject matter jurisdiction over this matter. D. THE AUTOMATIC STAY AND REMAND

Because S.B. Trucking and Jackson filed for bankruptcy on December¹¹, 2002, this Court must address whether the automatic stay imposed under¹¹ U.S.C. § 362 prevents this Court from remanding this improperly removed action.

The Plaintiffs Motion to Remand (Doc. No. 17) calls into question this Court’s jurisdiction. As such, this Court “finds the automatic stay does not leave this court helpless to remand an improperly removed action.”

Brown v. General Motors Corp.,

2001 U.S. Dist. Lexis 8457, *3 (N.D. Ill. June¹⁸, 2001). This decision conforms with those of other courts, which have held that “a district court may remand a civil action removed on the basis of diversity jurisdiction when one of the debtor-defendants filed a post-removal bankruptcy petition, regardless of the automatic stay provision.”

Id.

at *2;

see also County of Cook v. Mellon Stuart Co.,

812 F.Supp. 793, 798 n. 3 (N.D.Ill.1992) (holding that a “subsequent bankruptcy filing and resulting stay under section 362 of the Bankruptcy Code,¹¹ U.S.C. § 362, do not prevent this court from remanding an improperly removed action”);

Baxter Healthcare Corp. v. Hemex Liquidation Trust,

132 Bankr. 863, 867 (N.D.Ill.1991) (finding that remand to state court was proper where a case was improperly removed under the bankruptcy removal statute despite automatic stay imposed under¹¹ U.S.C. § 362).

E. ATTORNEY’S FEES AND COSTS

The Plaintiff seeks attorney’s fees and costs associated with her Motion for Remand (Doc. No. 17) pursuant to²⁸ U.S.C. § 1447(c). That subsection provides that an order remanding a case to the state court “may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal.”

In the Middle District of Florida, whether “to award fees and costs under [28 U.S.C. § 1447(c) ] is within the Court’s sole discretion.”

Smith v. Health Ctr. of Lake City,

252 F. Supp. 2d 1336, 1346 (M.D.Fla.2003);

Martin v. Mentor Corp.,

142 F. Supp. 2d 1346, 1349 (M.D.Fla.2001) (“The award of attorney’s fees and costs under this section is discretionary with the trial court”).

At this juncture, the Court declines to award attorney’s fees and costs because the Plaintiff has not obtained relief from the automatic stay imposed under § 362 of the Bankruptcy Code, and this Court questions whether it has the authority to enter a judgment against S.B. Trucking and Jackson for their pre-petition court filings. In addition, this Court

*1334

is reluctant to order such relief because the record reflects that the Defendants’ efforts to remove to federal court were reasonable in that they were not without some basis in law, and there was no binding Eleventh Circuit authority to the contrary.

See Smith,

252 F. Supp. 2d at 1346 (declining to award attorney’s fees and costs where a reasonably objective basis for removal was present and there was no Eleventh Circuit precedent on point with respect to the issues raised in the petition for removal);

Clegg v. Bristol-Myers Squibb Co.,

285 B.R. 23, 38 (M.D.Fla.2002) (noting that it is the best approach is to decline to award attorney’s fees and costs where removal efforts were not without some basis in law and there is no Eleventh Circuit precedent on point with respect to the issues raised in the petition for removal);

Martin,

142 F. Supp. 2d 1346 at 1349 (declining to award attorney’s fees and costs because the “Defendant acted reasonably based on information available at the time of removal”).

VI. CONCLUSION

Based on the foregoing, it is ORDERED that:

1. The Plaintiffs, Karen S. Diebel, December 12, 2002 Motion to Remand and for Award of Attorney’s Fees and Costs (Doc. No. 17) is GRANTED IN PART and DENIED IN PART. Insofar as the Plaintiff moved for remand, the Motion is GRANTED. Insofar as the Plaintiff moved for attorney’s fees and costs, the Motion is DENIED.

2. This case is hereby REMANDED to the Circuit Court of the Ninth Judicial Circuit in and for Orange County, Florida. The clerk shall take all necessary steps to effectuate this remand including forwarding a certified copy of this Order to that court.