The Court of Appeals for the Fourth Circuit in a case of first impression for courts of appeal held that 28 U.S.C. ?1447(c) does not permit the imposition of legal fees on an attorney who erroneously removes a case from state to federal court. In Crescent City Estates, 588 F.3d 822 (4th Circ. 2009), the defendants removed a state court action to the United States Bankruptcy Court for the District of Maryland. The plaintiffs filed a motion to remand and sought attorneys’ fees from both the defendants and from their attorneys. The Bankruptcy Court held that as a matter of law ?1447(c) applied to both parties and to attorneys. The District Court, upon review, disagreed and held that the attorneys’ fees could only be imposed upon parties. The Fourth Circuit Court of Appeals affirmed the District Court. In doing so, the Court pointed out that the statute permits an award of attorneys fees incurred as a result of removal. However, the statute does not expressly state who was required to make such payment. The Court noted that no Circuit Court has confronted the issue and that the district courts are badly divided. In affirming the District Court the Court of Appeals said
Appellants argue that because ? 1447(c) does not explicitly prohibit a fee award against counsel, it thereby permits it. Appellants, however, have the presumption reversed.
The proper presumption is that when a fee-shifting statute does not explicitly permit a fee award against counsel, it prohibits it. In short, silence does not equal consent. Because we find that the presumption is not overcome in this case, we accordingly hold that ? 1447(c) does not apply to counsel. (p. 825)
The Court did note that in cases where removal is not just erroneous, but egregiously so, sanctions may be imposed under Federal Rule of Civil Procedure 11 and the courts inherent powers.