                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-14-2007

Step Plan Ser Inc v. Koresko
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5494




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Recommended Citation
"Step Plan Ser Inc v. Koresko" (2007). 2007 Decisions. Paper 1480.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1480


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                                                             NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT


                                  No. 05-5494


                         STEP PLAN SERVICES, INC.

                                        v.

            JOHN J. KORESKO, V; LAWRENCE KORESKO;
     KORESKO AND ASSOCIATES, P.C.; KORESKO FINANCIAL, L.P.;
    PENN-MONT BENEFIT SERVICES, INC.; CAPITAS FINANCIAL, LLC;
         ANDERSON, KILL & OLICK, P.C.; VIRGINIA I. MILLER;
        LAWRENCE S. FISCHER; COMMUNITY TRUST COMPANY;
     LOWELL GATES; ARROW DRILLING CO., INC.; NESTOR GARZA;
      SANCHEZ AND DANIELS; MANUEL SANCHEZ; JOHN DANIELS

                                             John J. Koresko, V;
                                             Lawrence Koresko;
                                             Koresko and Associates, P.C.;
                                             Koresko Financial, L.P.;
                                             Penn-Mont Benefit Services, Inc.,
                                                                      Appellants


                On Appeal from the United States District Court
                   for the Eastern District of Pennsylvania
                     D.C. Civil Action No. 04-cv-02560
                        (Honorable Legrome D. Davis)


                Submitted Pursuant to Third Circuit LAR 34.1(a)
                                March 2, 2007

    Before: SCIRICA, Chief Judge, McKEE and NOONAN*, Circuit Judges.

*
The Honorable John T. Noonan, Jr., United States Circuit Judge for the Ninth Judicial
                                                                        (continued...)
                                    (Filed: March 14, 2007)


                                   OPINION OF THE COURT


NOONAN, Circuit Judge.

       John J. Koresko, et al. (“Koresko”), appeals the denial of a motion for

reconsideration of an award of attorney’s fees and costs to STEP Plan Services, Inc.

(“STEP”) for the expenses STEP incurred in remanding a case to state court. We now

affirm the district court’s decision.

       District courts may award “just costs and any actual expenses, including attorney’s

fees” incurred as a result of a defective removal to federal court. 28 U.S.C. §1447 (c).

Koresko failed to obtain the unanimous consent of all defendants before seeking to

remove the case to federal court. Therefore, his removal was procedurally defective. See

Lewis v. Rego, 757 F.2d 66, 68 (3d Cir. 1985) (“[W]hen there is more than one

defendant, all must join in the removal petition.”) Moreover, STEP’s complaint alleged

state law causes of action exclusively; ERISA was inapplicable. See Mints v. Educational

Testing Service, 99 F.3d 1253 (3d Cir. 1996). The district court did not abuse its

discretion in awarding STEP attorney’s fees and costs as a result of Koresko’s improper

removal. See 28 U.S.C. 1447 (c); Martin v. Franklin Capital Corp. 126 S.Ct. 704, 711




   *
    (...continued)
Circuit, sitting by designation.

                                              2
(2005) (“courts may award attorney’s fees under 1447(c) only where the removing party

lacked an objectively reasonable basis for seeking removal.”)

       No violation of Koresko’s due process rights occurred. The district court

considered a detailed breakdown of hours and costs, as well as a form charting

reasonable attorney’s fees. Koresko had an opportunity to respond in both its Opposition

to Plaintiff’s Request for Fees and in its Sur-Reply to Plaintiff’s Request for Fees. See

Federal Communications Comm’n v. WJR, 337 U.S. 265, 276 (1949). (Due process does

not require oral argument, and written submissions may be sufficient.)

       AFFIRMED.




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