Martin v. Franklin Capital Corp. - Oral Argument - November 08, 2005

Martin v. Franklin Capital Corp.

Media for Martin v. Franklin Capital Corp.

Audio Transcription for Opinion Announcement - December 07, 2005 in Martin v. Franklin Capital Corp.

Audio Transcription for Oral Argument - November 08, 2005 in Martin v. Franklin Capital Corp.

John G. Roberts, Jr.:

We'll hear argument first this morning in Martin versus Franklin Capital Corporation.

Mr. Heldman.

Samuel H. Heldman:

Mr. Chief Justice, and may it please the Court--

Section 1447(c) provides for fee... for a fee award... allows a fee award when a case is remanded to State Court.

There is, by contrast, no statute providing for a fee award to a defendant who removes, and successfully defends against, a motion to remand.

There is no statute providing for a fee award against a plaintiff who wrongly invokes the original jurisdiction in Federal District Courts.

This indication that there is something peculiarly troublesome and problematic about an incorrect removal is borne out in the case law of this Court and other courts and in the experience, I submit, of every practicing lawyer, that incorrect removals have detrimental effects, both private and systemic, yet Respondents would read section 1447(c) in a way that would leave it essentially without practical effect in the world of litigation.

It would give no... it would not effect litigation behavior to any perceptible degree.

But both the text of the statute, when read in context, and in light of the legal landscape, and the large objectives and equitable considerations at stake here, weigh in favor of a standard that would, as the Seventh Circuit put it, make fee awards the norm in cases of improper removal.

Turning, first, to the text of the statute, the statute is notable, in that, unlike many fee shifting statutes, it runs only in one direction.

That is to say, it allows for fees only when the case is remanded.

This is a good textual indicium of remanding, for two reasons.

First of all, it shows that the concern was with the incorrect removals, and the problems they cause in deterring them, rather than a more general concern about mitigation about questions of jurisdiction.

That is, a defendant cannot get a fee award even if the plaintiff's motion to remand was not very strong.

The second thing that the one way nature tells us is that this, the statute, would be practically meaningless if read as the Solicitor General suggests, and as Respondents suggest, in all but a little sliver, to allow fees only when the removal is unreasonable.

If that would not be a precise duplicate of Rule 11, it would at least be close enough to a precise duplicate of Rule 11.

Sandra Day O'Connor:

Well, Rule 11 is about frivolous arguments and motions, is it not?

Samuel H. Heldman:

It is... yes, Your Honor, that's the shorthand of Rule 11.

Sandra Day O'Connor:

Yes. And Christiansburg Garment is about unreasonable arguments.

I suppose that not every unreasonable argument could be deemed to be a frivolous one.

Samuel H. Heldman:

I would... I agree with you, Your Honor, there is that... there is a possible sliver of a distinction, but I... and, I submit, any lawyer advising a client and any lawyer advising himself or herself... would have a hard time differentiating between the two standards, in practice, so as actually--

Sandra Day O'Connor:

Don't you think you know it when you see it?


Samuel H. Heldman:

--I try to avoid all of them, Your Honor, the frivolous and the unreasonable, both.

And I think we all do.

John G. Roberts, Jr.:

But, when Congress passed this language, the scope of Rule 11 was not as well defined and understood as it is now.

So, the overlap argument you're making may not really go to what Congress had in mind.

Samuel H. Heldman:

The overlap may not have been perfect, at least, among other things, in the sense that some courts were still under the misimpression that there was a subjective element to Rule 11, as well.

So, the Solicitor General is correct in saying that there is that logically possible reason for the enactment of the statute, in that there is not a perfect overlay.

We submit that, in light of the other available textual indicia and the policy reasons, that logically possible hypothesis is not the most reasonable hypothesis.