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Geoff Gallas, the former Philadelphia court administrator who lost his federal lawsuit over being fired, has been ordered to pay more than $11,000 in costs to four of the defendants. And in a separate decision, a federal judge ruled Monday that state Sen. Vincent Fumo’s malicious prosecution lawsuit against Gallas and his lawyers must be sent back to the state courts since it contains no true federal questions. In the suit, Fumo complains that Gallas abused the civil process when he named Fumo as a defendant in his federal civil rights suit over the Pennsylvania Supreme Court’s decision to fire him. Named as defendants in Fumo’s suit are Gallas and his lawyers, Peter G. Friesen of San Diego, Calif., and Glenn J. Brown of Palissery & Brown in Quakertown, Pa. The suit was filed in the Philadelphia Court of Common Pleas, but Friesen’s lawyers — Jeffrey B. McCarron and Anthony T. Febbo of Swartz Campbell & Detweiler — removed it to federal court, arguing that the case should be heard there because it relates entirely to Gallas’ federal lawsuit. Fumo’s lawyers, Richard A. Sprague, Geoffrey R. Johnson and Joseph J. McAlee of Sprague & Sprague, moved to have the case remanded, arguing that it was improperly removed to U.S. District Court on a faulty theory. U.S. District Judge William H. Yohn Jr. agreed and also found that Friesen failed to follow the appropriate procedure in removing the case since his co-defendants — Gallas and Brown — did not consent to the removal within 30 days. “Where there is more than one defendant, all served defendants must join in the removal petition within 30 days of their receipt of pleadings from which removability may be ascertained,” Yohn wrote. The question of the timeliness of Friesen’s notice of removal and his co-defendants’ consents to join “depends on when the 30-day period began to toll,” Yohn found. Since Friesen’s theory is that Fumo’s suit presents a “substantial federal question,” Yohn found that the clock started running in late August 2000 — as soon as the defendants were served. And since Gallas and Brown did not consent to removal until mid-October, the removal procedure was flawed, Yohn found. But even if Friesen had followed the correct procedure, Yohn found that the federal courts have no jurisdiction over Fumo’s case. Under the well-pleaded complaint rule, Yohn said, federal question jurisdiction exists “only when a federal question is presented on the face of the plaintiff’s properly pleaded complaint.” When a complaint is based entirely on state law, Yohn said, federal jurisdiction arises only if “some substantial, disputed question of federal law is a necessary element of one of the well-pleaded state claims” or the claim is completely preempted by federal law. Fumo’s suit didn’t fall into either category, Yohn found. “Fumo’s claim is for wrongful use of civil process under state law, and the proposed complaint clearly states a state-law wrongful use of civil process claim and a state-law abuse of process claim,” Yohn wrote. Friesen argued that because Fumo’s suit alleged misuse of a federal proceeding, it presented a federal question. Yohn disagreed, saying “a previously dismissed federal action does not cause a subsequently filed state court action for a malicious prosecution to ‘arise under’ federal law. Although the state court may have to determine the legal viability of the underlying claim, a factfinder must determine what the defendant knew or believed about the facts.” The only question for the state courts, Yohn said, will be whether Gallas’s federal lawsuit was “legally tenable.” Fumo’s cause of action, he said, “is created by state law and the state law controls the standard by which the strength of the federal claim in the underlying action is measured.” Federal law “is not dispositive,” Yohn concluded, “because the degree of strength required to put the underlying federal claim over the probable cause threshold is determined by state law.” Yohn also rejected Friesen’s argument that federal law completely preempts Fumo’s suit. Complete preemption exists, Yohn said, only if the federal statute contains civil enforcement provisions within the scope of the plaintiff’s state claim and there is a “clear indication of Congressional intent” to permit removal despite the plaintiff’s exclusive reliance on state law. Yohn said courts have found complete preemption in areas such as labor relations, ERISA, bankruptcy, immigration and trademark law. But Friesen, he said, “points to no federal statute with civil enforcement provisions that are within the scope of the plaintiff’s state claims.” “Furthermore, there is nothing in the federal law . . . that creates a federal common law tort of wrongful use of civil process and that preempted state law claims for wrongful use of civil proceedings or abuse of process,” Yohn wrote. “Therefore, there is no clear indication of congressional intent to completely preempt the field, and in particular, state law claims for wrongful abuse of civil proceedings or abuse of process.” AWARD OF COSTS Fumo scored another victory over Gallas earlier this week when the court awarded Fumo more than $4,700 in costs from Gallas’s 1996 lawsuit. In a four-page opinion, Clerk of Court Michael E. Kunz rejected the argument that the costs should be disallowed in Gallas’s case since he is unable to pay them. Kunz also ordered Gallas to pay costs of more than $6,500 to Pennsylvania Supreme Court Justice Russell Nigro, as well as $321 to the First Judicial District and $152 to Congressman Robert Brady for a total taxation of $11,700.97 against Gallas. Gallas’s lawyer, Brown, had not objected to any of the specific costs but urged Kunz to exercise his discretion to disallow any or all of the costs due to Gallas’s inability to pay. But Kunz found that the Federal Rules of Civil Procedure direct that costs “shall be allowed as of course,” and said that “this language creates a heavy presumption in favor of an award of costs.” The clerk, Kunz said, “has no discretion to disallow otherwise allowable costs.” And arguments “based on the equities” cannot be considered by the clerk, Kunz said, since the clerk has “no factfinding mechanism to reconsider the merits of the underlying case.” Only the trial judge can consider such arguments in an appeal from the clerk’s taxation opinion, Kunz said. But Kunz also commented in the opinion that “economic disparity between the parties is not a basis for disallowing costs” and that “even complete and utter inability to pay is not normally grounds for disallowance of costs.”

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