Step Plan Services, Inc v. John J. Koresko, V

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The Honorable John T. Noonan, Jr., United States Circuit Judge for the Ninth Judicial
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NOT PRECEDENTIAL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.

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Circuit, sitting by designation.
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(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

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(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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