Gotro

Opinion by Judge LEAVY; Dissent by Judge O’SCANNLAIN.

In this case we are called upon to decide whether a district court has discretion to award attorneys’ fees to a contingency fee litigant under 28 U.S.C. § 1447 (c).

I

The issues before us arose out of procedural maneuverings that took place at the outset of this litigation. On March 12, 1993, Marsha Gotro filed an amended complaint in the Superior Court for Orange County, California, alleging employment-related claims against several defendants. On May 28, some of the named defendants removed the action to federal court. On June 1, in order to protect her position, Gotro filed a Demand for Jury Trial in the district court. On June 17, Gotro filed a Motion to Remand to the State Court; on the same day, some of the named defendants moved to dismiss some of the claims. On June 28, Gotro filed her opposition to the dismissal.

On July 12, the district court held a hearing on the Motion to Remand and concluded that the case had been improvidently removed. Consequently, the court ordered a remand to the state court. The order also awarded Gotro her costs and attorneys’ fees incurred as a result of the removal, pursuant to 28…

dissenting:

The statute at issue, 28 U.S.C. § 1447 (c), sets forth procedures for plaintiffs to remand a ease to state court when the defendant improperly removed the case to federal court. Of relevance here, that section provides that “[a]n order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal.” The majority maintains that under such language a district court must award attorneys’ fees to a litigant who had not actually incurred an obligation to pay those fees. I respectfully dissent from that portion of the opinion.

This issue appears to be one of first impression. The majority points to Moore v. Permanente Medical Group, Inc., 981 F.2d 443 (9th Cir.1992), where we awarded attorneys’ fees under section 1447(c) to an attorney who was hired on a contingency fee basis; however, that case did not present the question of statutory interpretation at issue here. Here, the question is whether a statute which provides for the award of “any actual expenses” (expressly including attorneys’ fees) that are “incurred” as a result of an improper removal, contemplates an award of fees to a plaintiff who…