UNITED STATES COURT OF APPEALS
for the Fifth Circuit
No. 96-30806
Summary Calendar
FREDERICK A. STRUVE,
Plaintiff-Appellant,
versus
YORAM RAZ,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Louisiana
(95-CV-2181)
December 18, 1996
Before REYNALDO G. GARZA, DAVIS, and DUHÉ, Circuit Judges.
PER CURIAM:*
Dr. Frederick Struve appeals the district court’s denial of
*
Local Rule 47.5 provides: "The publication of opinions that
merely decide particular cases on the basis of well-settled
principles of law imposes needless expense on the public and
burdens on the legal profession." Pursuant to this Rule, we have
determined that this opinion should not be published and is not
precedent except under the limited circumstances set forth in Local
Rule 47.5.4.
his motion for payment of attorney’s fees and costs. Finding no
error, we affirm.
Struve sued Yoram Raz in state court in Louisiana, alleging
that Raz had slandered Struve as the result of written and oral
statements he had made concerning Struve’s integrity as a
researcher. Raz answered the complaint and added his former
employer, the Louisiana State University Medical Center (LSU-MC),
as a third-party defendant, contending that it would also be liable
to Struve and would have to indemnify Raz for any judgment paid.
Raz then removed the case to the United States District Court for
the Western District of Louisiana. No legal ground was provided in
his notice of removal. Rather, he apparently thought that because
he was involved as a plaintiff in a pending federal suit against
LSU-MC, this was sufficient for the case to be removed. On its own
motion, the district court ordered the instant case remanded to
state court noting “a clear absence of federal subject matter
jurisdiction.”
Approximately two weeks after the case was remanded, Struve
filed a motion for costs and attorney’s fees with the district
court under 28 U.S.C. § 1447(c), which provides that a court may
order payment of costs and attorney’s fees against a removing party
when the case is subsequently remanded to state court because of a
defect in the removal, whether it be technical or jurisdictional.
He requested that Raz be assessed with the expenses he incurred in
preparing a motion to remand and in preparing the motion for costs.
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The motion for remand was never filed; nevertheless, he asserts he
had begun to prepare one before the remand order was entered by the
court. The magistrate judge denied the motion by memorandum order
and the district court affirmed on the basis of that order.
The order first noted that Raz was proceeding pro se. While
the removal was “clearly improper,” the magistrate judge found that
it was prompted by “a misunderstanding of the concept of
supplemental jurisdiction in the removal context.” He noted that
this subject sometimes proves vexing for attorneys and concluded
that Raz did not act in bad faith. He also stated that while case
law indicated that bad faith was not a prerequisite for the
imposition of costs under this section, the absence of bad faith
combined with “the absence of any true need for plaintiff to incur
substantial fees or expenses in seeking a remand, warrants denial
of the relief sought.”
We undertook an analysis of 28 U.S.C. § 1447(c) in Miranti v.
Lee, 3 F.3d 925 (5th Cir. 1993). We there held that the district
court abused its discretion by imposing the cost of attorney’s fees
against a removing party where there was no “impropriety” in the
party’s removal of the case at the time of removal. We did not
hold that a district court must impose sanctions when a defendant
improperly removes a case to federal court, only that this is a
necessary predicate for any sanction. The decision to impose
sanctions is one that lies within the sound discretion of the
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district court. We cannot say that the district court’s refusal to
assess attorney’s fees against a pro se defendant who was
apparently confused about the law of supplemental jurisdiction
amounts to an abuse of discretion. Likewise, we find no error in
the court’s refusal to assess costs against this defendant.
AFFIRMED.
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