Cornwall v. Robinson, 654 F.2d 685 (10th Cir. 1981). · Go Syfert
Cornwall v. Robinson, 654 F.2d 685 (10th Cir. 1981). Cases Citing This Book View Copy Cite
Quick Summary

An award of attorney's fees for improper removal requires a finding of bad faith, vexatiousness, or wantonness rather than mere improvidence or frivolity.

Defendants removed a state action to federal court without the joinder of a co-defendant, rendering the petition procedurally defective. The trial court remanded the case and awarded attorney's fees, finding the removal improvident and frivolous. The question presented is whether a finding of frivolous removal satisfies the standard required to award attorney's fees under the bad faith exception to the American rule. The court applies the rule that attorney's fees are punitive and require a showing of bad faith, vexatiousness, or wantonness, which is a higher standard than mere negligence or improvidence. The court reverses the award of attorney's fees because the trial court did not find the requisite intent, but it affirms the award of costs under the statutory provision for improvident removal.

151 citation events (75 in the last 25 years) across 24 distinct courts.
Treatment trajectory · 1981 → 2026 · click a year to view as-of
1981 2003 2026
Cited for
At page 686 Requirement for all defendants to join removal petition49 citing casesA co-defendant, Interstate Book Company, did not join in the petition for removal and the petition was thus procedurally defective.5 citing courts put it this way · 48 listed here
  • Lopez v. Vega, No. 1:25-cv-00225 (D.N.M. July 24, 2025).
    (A co-defendant, Interstate Book Company, did not join in the petition for removal and the petition was thus procedurally defective.)
  • Am. Fam. Ins. Co., SI v. Orgill Inc., No. 1:22-cv-02128 (D. Colo. Aug. 25, 2022). 2 cites
    (A co-defendant . . . did not join in the petition for removal and the petition was thus procedurally defective.)
  • Sherrets v. Buechler, No. 1:22-cv-00551 (D. Colo. Apr. 11, 2022).
    (A co-defendant . . . did not join in the petition for removal and the petition was thus procedurally defective.)
  • Bellecourt v. Constitution State Serv., LLC, No. 1:22-cv-00049 (D. Colo. Mar. 25, 2022). 2 cites
    (A co-defendant . . . did not join in the petition for removal and the petition was thus procedurally defective.)
  • Tresco, Inc. v. Cont'l Cas. Co., 727 F. Supp. 2d 1243 (D.N.M. 2010).published 2 cites
    (A co-defendant, Interstate Book Company, did not join in the petition for removal and the petition was thus procedurally defective.)
  • Lopez v. Lowe's Home Ctr., LLC, No. 1:21-cv-03487 (D. Colo. Jan. 6, 2022). 2 cites
    Courts understand § 1446 to mean that “a petition filed by less than all the named defendants is considered defective if it fails to contain an explanation for the absence of co-defendants.” Scheall v. Ingram, 930 F. Supp. 1448, 1449 (D.Co…
  • Paggen v. Heart of Am. Trans., Inc., No. 1:24-cv-01220 (D.N.M. May 19, 2025).
    Lovelace Health Plan, 504 F. Supp. 2d 1170 , 1172-73 (D.N.M. 2007), quoting Cornwall v. Robinson, 654 F.2d 685, 686 (10th Cir. 1981).
  • Griffay v. State of New Mexico, No. 1:23-cv-00532 (D.N.M. Nov. 2, 2023). 2 cites
    Proper removal requires that a defendant file a motion for removal within thirty days of being served the complaint and the consent of all defendants. 28 U.S.C. 1446(b), Cornwall v. Robinson, 654 F.2d 685, 686 (10th Cir. 1981).
  • Walden v. Dolgencorp, LLC, No. 2:22-cv-00863 (D.N.M. Jan. 19, 2023).
    “The failure of one defendant to join in [or consent to] the notice renders the removal notice procedurally defective, which requires that the district court remand the case.” Brady v. Lovelace Health Plan, 504 F.Supp.2d 1170 , 1172–73 (D.…
  • Viiva Global v. Complete Merch. Solutions, No. 2:22-cv-00432 (D. Utah Sept. 21, 2022).
    “When a civil action is removed solely under section 1441(a), all defendants who have been properly joined and served must join in or consent to the removal of the action.”18 When a co-defendant does not join in the petition for removal, “…
Show 38 more citing cases
  • Power of Grace Trucking, LLC v. Weatherby-Eisenrich, Inc., No. 2:21-cv-00356 (D.N.M. June 30, 2021).
    “The failure of one defendant to join in [or consent to] the notice renders the removal notice procedurally defective, which requires that the district court remand the case.” Brady v. Lovelace Health Plan, 504 F.Supp.2d 1170 , 1172–73 (D.…
  • Khan v. United Supermarkets LLC, No. 1:20-cv-01307 (D.N.M. June 22, 2021). 2 cites
    “The failure of one defendant to join in the notice renders the removal notice procedurally defective, which requires that the district court remand the case.” Brady, 504 F. Supp. 2d at 1172-73 (quoting Cornwall v. Robinson, 654 F.2d 685,…
  • Nguyen v. Est. of Walter Bingel, No. 1:21-cv-01095 (D. Colo. June 15, 2021).
    Additionally, the unanimity rule requires that, “[w]here there are multiple defendants, all defendants served at the time of filing must join in the notice of removal.” Vasquez v. Americano U.S.A., LLC, 536 F. Supp. 2d 1253, 1257 (D.N.M. 2…
  • Quality First Roofing, Inc. v. HDI Global Speciality SE, No. 2:21-cv-00110, 2021 WL 1923639 (D.N.M. May 13, 2021).
    “The failure of one defendant to join in [or consent to] the notice renders the removal notice procedurally defective, which requires that the district court remand the case.” Brady v. Lovelace Health Plan, 504 F.Supp.2d 1170 , 1172-73 (D.…
  • Henderson v. BJ's Restaurant, No. 1:19-cv-01002 (D.N.M. Apr. 13, 2020).
    Even if a removing party demonstrates federal diversity jurisdiction by a preponderance of the evidence, “[t]he failure of one defendant to join in the notice [of removal] renders the removal notice procedurally defective, which requires t…
  • Zambrano v. New Mexico Corr. Dep't, 256 F. Supp. 3d 1179 (D.N.M. 2017).published
    “The failure of one defendant to join in the notice renders the removal notice procedurally defective, which requires that the district court remand the case.” Brady v. Lovelace Health Plan, 504 F.Supp.2d 1170, 1172-73 (D.N.M.2007) (quotin…
  • Fed. Nat'l Mortg. Ass'n v. Milasinovich, 161 F. Supp. 3d 981 (D.N.M. 2016).published
    “The failure of one defendant to join in the notice renders the removal notice procedurally defective, which requires that the district court remand the case.” Brady v. Lovelace Health Plan, 504 F.Supp.2d 1170, 1172-73 (D.N.M. 2007)(Smith,…
  • Lucero v. Ortiz, 163 F. Supp. 3d 920 (D.N.M. 2015).published
    “The failure of one defendant to join in the notice renders the removal notice procedurally defective, which requires that the district court remand the case.” Brady v. Lovelace Health Plan, 604 F.Supp.2d 1170, 1172-73 (D.N.M.2007)(Smith,…
  • Williams ex rel. Samayoa v. Bd. of Regents, 990 F. Supp. 2d 1121 (D.N.M. 2014).published
    “The failure of one defendant to join in the notice renders the removal notice procedurally defective, which requires that the district court remand the case.” Brady v. Lovelace Health Plan, 504 F.Supp.2d 1170, 1172-73 (D.N.M.2007) (citing…
  • Ullman v. Safeway Ins., 995 F. Supp. 2d 1196 (D.N.M. 2013).published
    “The failure of one defendant to join in the notice renders the removal notice procedurally defective, which requires that the district court remand the case.” Brady v. Lovelace Health Plan, 504 F.Supp.2d 1170, 1172-73 (D.N.M.2007) (citing…
  • May v. Bd. of Cnty. Commissioners, 945 F. Supp. 2d 1277 (D.N.M. 2013).published
    “The failure of one defendant to join in the notice renders the removal notice procedurally defective, which requires that the district court remand the case.” Brady v. Lovelace Health Plan, 504 F.Supp.2d at 1172 -73 (citing Cornwall v. Ro…
  • Moreno v. Taos Cnty. Bd. of Commissioners, 778 F. Supp. 2d 1139 (D.N.M. 2011).published
    Id. (citing Roe v. O’Donohue, 38 F.3d 298, 301 (7th Cir.1994); Jernigan v. Ashland Oil Inc., 989 F.2d 812, 815 (5th Cir.1993); Lewis v. Rego Co., 757 F.2d 66, 68 (3rd Cir.1985); and Cornwall v. Robinson, 654 F.2d 685, 686 (10th Cir.1981)).
  • Vasquez v. Americano U.S.A., LLC, 536 F. Supp. 2d 1253 (D.N.M. 2008).published
    Cornwall v. Robinson, 654 F.2d 685, 686 (10th Cir.1981).
  • Brady v. Lovelace Health Plan, 504 F. Supp. 2d 1170 (D.N.M. 2007).published
    Cornwall v. Robinson, 654 F.2d 685, 686 (10th Cir.1981).
  • Direct Mortg. Corp. v. Keirtec, Inc., 478 F. Supp. 2d 1339 (D. Utah 2007).published
    Cornwall v. Robinson, 654 F.2d 685, 686 (10th Cir.1981); see also Hewitt v. City of Stanton, 798 F.2d 1230, 1232 (9th Cir.1986).
  • Bachman ex rel. Legal Heirs of Bachman v. Fred Meyer Stores, Inc., 402 F. Supp. 2d 1342 (D. Utah 2005).published
    The Tenth Circuit has also stated that “all of the defendants must consent to removal.” Farmland Nat’l Beef Packing Co., v. Stone Container Corp., 98 Fed.Appx. 752, 756 (10th Cir.2004) (unpublished opinion) (citing Wis. Dep’t of Corr. v. S…
  • Farmland Nat'l Beef Packing Co. v. Stone Container Corp., 98 F. App'x 752 (10th Cir. 2004).unpublished
    Dep’t of Corr. v. Schacht, 524 U.S. 381, 393 , 118 S.Ct. 2047 , 141 L.Ed.2d 364 (1998) (Kennedy, J., concurring); Cornwall v. Robinson, 654 F.2d 685, 686 (10th Cir. 1981); §§ 1441(a), 1446(a).
  • Thomas P. Loftis v. United Parcel Serv., Inc., 342 F.3d 509 (6th Cir. 2003).published
    Gases, 676 F.2d 270, 272-73 (7th Cir.1982); Cornwall v. Robinson, 654 F.2d 685, 686 (10th Cir.1981).
  • McShares, Inc. v. Barry, 979 F. Supp. 1338 (D. Kan. 1997).published
    “A petition [notice] for removal fails unless all defendants join it.” Roe v. O'Donohue, 38 F.3d 298, 301 (7th Cir.1994) (citing Hanrick v. Hanrick, 153 U.S. 192 , 14 S.Ct. 835 , 38 L.Ed. 685 (1894); Torrence v. Shedd, 144 U.S. 527 , 12 S.…
  • Patel v. Moore, 968 F. Supp. 587 (D. Kan. 1997).published
    Sheet Metal Workers Int’l Ass’n, AFL-CIO v. Seay, 693 F.2d 1000 , 1005 n. 8 (10th Cir.1982); Cornwall v. Robinson, 654 F.2d 685, 686 (10th Cir.1981).
  • Henderson v. Holmes, 920 F. Supp. 1184 (D. Kan. 1996).published
    “A petition [notice] for removal fails unless all defendants join it.” Roe v. O’Donohue, 38 F.3d 298, 301 (7th Cir.1994) (citing Hanrick v. Hanrick, 153 U.S. 192 , 14 S.Ct. 835 , 38 L.Ed. 685 (1894); Torrence v. Shedd, 144 U.S. 527 , 12 S.…
  • Mathews v. Cnty. of Fremont ex rel. Bd. of Commissioners, 826 F. Supp. 1315 (D. Wyo. 1993).published
    In Cornwall v. Robinson, 654 F.2d 685, 686 (10th Cir.1981), the Tenth Circuit stated that where “a co-defendant [...] did not join in the petition for removal [...] the petition was thus procedurally defective[,]” citing Tri-Cities Newspap…
  • Fed. Deposit Ins. Corp. v. Okc Partners, Ltd., 961 F.2d 219 (1st Cir. 1992).published
    The failure of all defendants to join in a removal petition renders the petition procedurally defective, Cornwall v. Robinson, 654 F.2d 685, 686 (10th Cir.1981), and § 1447(c) requires that the district court remand the case.
  • Mech. Rubber & Supply Co. v. Am. Saw & Mfg. Co., 810 F. Supp. 986 (C.D. Ill. 1990).published
    See, Cohen v. Hoard, 696 F.Supp. 564, 565-566 (D.Kan. 1988); Mason v. International Business Machines, Inc., 543 F.Supp. 444, 445-446 (M.D.N.C.1982); Cornwall v. Robinson, 654 F.2d 685, 686-687 (10th Cir.1981); Tri-Cities Newspapers, Inc.…
  • Cohen v. Hoard, 696 F. Supp. 564 (D. Kan. 1988).published
    Cornwall v. Robinson, 654 F.2d 685, 686 (10th Cir.1981).
  • Sterling Energy, Ltd. v. Friendly Nat'l Bank, 744 F.2d 1433 (10th Cir. 1984).published
  • Emrich v. Touche Ross & Co., 846 F.2d 1190 (9th Cir. 1988).published
  • Anstine & Musgrove, Inc. v. Calcasieu Refining Co., 436 B.R. 136 (D. Kan. 2010).published
  • Keil v. CIGNA & Intracorp Rehab Mgmt., 978 F. Supp. 1365 (D. Colo. 1997).published
  • Christenson Media Grp., Inc. v. Lang Indus., Inc., 782 F. Supp. 2d 1213 (D. Kan. 2011).published
  • Yellow Transp., Inc. v. Apex Digit., Inc., 406 F. Supp. 2d 1213 (D. Kan. 2005).published
  • State Farm Fire & Cas. Co. v. Dunn-Edwards Corp., 728 F. Supp. 2d 1273 (D.N.M. 2010).published
  • Liebau v. Columbia Cas. Co., 176 F. Supp. 2d 1236 (D. Kan. 2001).published
  • Anderson v. Ford Motor Co., 303 F. Supp. 2d 1253 (W.D. Okla. 2004).published
  • Warden v. DirecTV, LLC, 92 F. Supp. 3d 1140 (D.N.M. 2015).published
  • Fink v. Swisshelm, 185 F.R.D. 353 (D. Kan. 1999).published
  • Castillo v. Vista Living Communities, No. 1:19-cv-00183 (D.N.M. Aug. 20, 2019).
  • Serna v. Cooksey, No. 1:20-cv-00689 (D.N.M. Feb. 27, 2021).
At page 687 Limiting bad faith attorney's fee awards under statute38 citing casesAn award of attorney's fees under the bad faith exception to the American rule is punitive, and the penalty can be imposed only in exceptional cases and for dominating reasons of justice.” (internal quotation marks omitted)2 citing courts put it this way · 34 listed here
  • Mayo v. Deckard, No. 5:24-cv-01279 (W.D. Okla. Apr. 9, 2025).
    (An award of attorney's fees under the bad faith exception to the American rule is punitive, and the penalty can be imposed only in exceptional cases and for dominating reasons of justice.” (internal quotation marks omi…)
  • Banner Bank v. Real Est. Inv. Educ., No. 2:12-cv-00763 (D. Utah Feb. 12, 2025).
    Co., 560 U.S. 242 , (2010) (quotation marks omitted). 21 Hall, 412 U.S. at 5; Chambers v. NASCO, Inc., 501 U.S. 32 , 45-46 (1991). 22 Chambers, 501 U.S. at 45-46 . 23 Cornwall v. Robinson, 654 F.2d 685, 687 (10th Cir. 1981) (quoting 6 J.
  • Mountain West Mines, Inc. v. Cleveland-Cliffs Iron Co., 470 F.3d 947 (10th Cir. 2006).published
    “only in exceptional cases and for dominating reasons of justice”
  • United States v. McCall, 235 F.3d 1211 (10th Cir. 2000).published
    To justify a shifting of fees, this court “requires more than merely a finding that a claim was frivolous when brought.... [T]he bad faith exception is drawn very narrowly and may be resorted to ‘only in exceptional cases and for dominatin…
  • Whitlock v. Jackson Nat'l Life Ins., 32 F. Supp. 2d 1286 (M.D. Ala. 1998).published
    Co., 906 F.Supp. 628, 630 (N.D.Ala.1995) (citing Cornwall v. Robinson, 654 F.2d 685, 687 (10th Cir.1981); Bucary v. Rothrock, 883 F.2d 447, 450 (6th Cir.1989)).
  • Girrens, Inc. v. Simon DeBartolo Grp., Inc., 976 F. Supp. 1399 (D. Kan. 1997).published
    However, because defendant removed this action “improvidently and without jurisdiction,” defendant will be ordered to pay plaintiffs’ costs incurred in obtaining this remand order. 28 U.S.C. § 1447 (c); Cornwall v. Robinson, 654 F.2d 685,…
  • Bedford v. Connecticut Mut. Life Ins., 916 F. Supp. 1211 (M.D. Ala. 1996).published
    Co., 906 F.Supp. 628, 630 (N.D.Ala.1995) (citing Cornwall v. Robinson, 654 F.2d 685, 687 (10th Cir.1981); Bucary v. Rothrock, 883 F.2d 447, 450 (6th Cir.1989)).
  • Grace v. Interstate Life & Accident, Ins., 916 F. Supp. 1185 (M.D. Ala. 1996).published
    Co., 906 F.Supp. 628, 630-31 (N.D.Ala.1995) (citing Cornwall v. Robinson, 654 F.2d 685, 687 (10th Cir.1981)); Bucary v. Rothrock, 883 F.2d 447, 450 (6th Cir.1989).
  • Gray v. New York Life Ins., 906 F. Supp. 628 (N.D. Ala. 1995).published 2 cites
    An example of the more usual pre-1988 case in which the court refused to include attorneys fees among “just costs” is Cornwall v. Robin son, 654 F.2d 685, 687 (10th Cir.1981).
  • Morris v. Lomas & Nettleton Co., 825 F. Supp. 979 (D. Kan. 1993).published
    Cornwall v. Robinson, 654 F.2d 685, 687 (10th Cir.1981).
Show 24 more citing cases
At page 685 “a co-defendant . . . did not join in the petition for removal and the petition was thus procedurally defective.”1 citing case4 citing courts quote it
  • Lopez v. Lowe's Home Ctr., LLC, No. 1:21-cv-03487 (D. Colo. Jan. 6, 2022). 2 cites
    (A co-defendant . . . did not join in the petition for removal and the petition was thus procedurally defective.)
Retrieving the full opinion text from the archive…
Henry CORNWALL, an individual, and Sherwin McMichael, an individual
v.
David R. ROBINSON, an individual, John Hadden Publishers, Inc., an Oklahoma corporation and Interstate Book Company, a Kansas corporation
No. 81-1007.
Court of Appeals for the Tenth Circuit.
Jul 7, 1981.
Published opinion
654 F.2d 685
1981 U.S. App. LEXIS 11702
James M. Sturdivant and John Henry Rule of Gable, Gotwals, Rubin, Fox, Johnson & Baker, Tulsa, Okl., for defendant-appellant., James L. Kincaid, J. David Jorgenson and Keith P. Ellison of Conner, Winters, Baílame, Barry & McGowen, Tulsa, Okl., for plaintiffs-appellees.
Doyle, Logan, McKay.
Cited by 85 opinions  |  Published
1 passage pin-cited by 1 case
Citer courts: D. Colorado (1)
McKAY, Circuit Judge.

After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R. App.P. 34(a); Tenth Cir. R. 10(e). The cause is therefore ordered submitted without oral argument.

Appellants, defendants below, filed a petition to remove this action to the United States District Court on June 5,1980. A co-defendant, Interstate Book Company, did not join in the petition for removal and the petition was thus procedurally defective. See Tri-Cities Newspapers, Inc. v. Tri-Cities Pressmen Local 349, 427 F.2d 325 (5th Cir. 1970). Five days after filing the petition for removal the removing defendants filed an application and notice for an order remanding the action to the state court. Plaintiffs concurred in the view that the matter had been improperly removed and also urged the trial court to tax attorney’s fees and costs to defendants. Plaintiffs seek to avoid the traditional American rule which disfavors the allowance of attorney’s fees by invoking the exception to that rule which sanctions an award of attorney’s fees when a party’s opponent acts “ ‘in bad faith, vexatiously, wantonly, or for oppressive reasons.’ ” Hall v. Cole, 412 U.S. 1, 5, 93 S.Ct. 1943, 1946, 36 L.Ed.2d 702 (1973) (quoting 6 J. Moore, Federal Practice ¶ 54.-77[2], p. 1709 (2d ed. 1972)), See also Alyes[*687] ka Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 258-59, 95 S.Ct. 1612, 1622, 44 L.Ed.2d 141 (1975).

The trial court found, with adequate support in the record, that “[t]his case was removed improvidently and frivolously because it was obvious that this Court was fully without removal jurisdiction of this action either on federal question grounds or on diversity grounds.” Record, vol. 1, at 146. The court awarded attorney’s fees in the amount of $6,000.

We have said that a trial court which awards attorney’s fees under the “bad faith, vexatious, wanton, or oppressive” exception to the American rule “will be reversed only in circumstances which do not show a reasonable ground for the conclusion that vexatiousness existed.” Ryan v. Hatfield, 578 F.2d 275, 277 (10th Cir. 1978). Yet here we do not even have a finding of vexatiousness. Notwithstanding a request by plaintiffs to find bad faith, the trial court found only that “removal of this action was improvident and frivolous.” Record, vol. 1, at 147. Although “a case can be so frivolous as to reflect impermissible conduct,” Americana Industries, Inc. v. Wometco de Puerto Rico, Inc., 556 F.2d 625, 628 (1st Cir. 1977), the trial court did not indicate that its interpretation of frivolous was to be equated with the intent-laden terminology of “bad faith, vexatious, wanton, or oppressive.” In fact, the trial court seemed to be advocating a negligence standard for the award of attorney’s fees when it interpreted “frivolous” at the hearing: “I have come to the conclusion that the commencement of this proceeding in this court was frivolous in that if counsel had carefully reviewed the applicable law counsel would have known that this court would not have jurisdiction.” Record, vol. 4, at 31.

An award of attorney’s fees under the bad faith exception to the American rule “is punitive, and the penalty can be imposed ‘only in exceptional cases and for dominating reasons of justice.’ ” United States v. Standard Oil Co., 603 F.2d 100, 103 (9th Cir. 1979) (quoting 6 J. Moore, Federal Practice H 54.77[2] pp. 1709-10 (2d ed. 1972)). Further, we agree that “[invocation of the bad faith exception to the normal federal rule that attorney’s fees may not be recovered requires more than a showing of a weak or legally inadequate case.” Americana Industries, Inc. v. Wometco de Puerto Rico, Inc., 556 F.2d 625, 628 (1st Cir. 1979). These considerations highlight the narrowness of the exception under which the trial court purported to award attorney’s fees in this case. The exception is not invoked by findings of negligence, frivolity, or improvidence. The trial court’s award of attorney’s fees is reversed.

Defendants also challenge the trial court’s award of $352 for plaintiffs’ costs. We find that 28 U.S.C. § 1447(c) allows an award of “just costs” if “it appears that the case was removed improvidently and without jurisdiction.” This statutory standard of “improvidence” is clearly less stringent than the “bad faith” standard that must be met in order for a court to award attorney’s fees in cases of this nature. The difference between costs and attorney’s fees has been noted by other courts. See Bradley v. School Board of City of Richmond, 416 U.S. 696, 706 n.8, 94 S.Ct. 2006, 2013, 40 L.Ed.2d 476 (1974); Demsey & Associates, Inc. v. S.S. Sea Star, 500 F.2d 409, 411 (2d Cir. 1974). We find the trial court’s finding of frivolousness to meet § 1447(c)’s “improvidence” standard and affirm the award of costs.