IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-50037
Summary Calendar
JIM LACHANCE,
Plaintiff-Appellant,
versus
JEFFREY D. TALMADGE,
Defendant-Appellee.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. A-00-CV-689-SS
--------------------
September 21, 2001
Before JONES, SMITH, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Jim LaChance, proceeding pro se, appeals the district
court’s order remanding this matter to state court and awarding
attorney’s fees and costs in favor of the defendant, Jeffrey D.
Talmadge. LaChance, who is the plaintiff in this legal
malpractice action, argues that he properly removed the action
because Talmadge asserted a “separate lawsuit” against him and
that the district court’s award of attorney’s fees and costs is
unconstitutional.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 01-50037
-2-
If necessary, this court must sua sponte examine the basis
of its jurisdiction. Mosley v. Cozby, 813 F.2d 659, 660 (5th
Cir. 1987). Under 28 U.S.C. § 1447(d), “[a]n order remanding a
case to the State court from which it was removed is not
reviewable on appeal or otherwise . . . .” This court “ha[s]
construed the 28 U.S.C. § 1447(d) prohibition against appellate
review of remand orders as being limited to those situations
where the district court’s remand order is grounded upon either
subject matter jurisdiction or a timely filed [28 U.S.C.]
§ 1447(c) motion asserting a defect in removal.” Albarado v.
S. Pac. Transp. Co., 199 F.3d 762, 764 (5th Cir. 1999) (citations
omitted).
Talmadge timely filed a motion to remand pursuant to 28
U.S.C. § 1447(c), asserting that LaChance’s removal of the action
was improper because the federal removal statutes and the caselaw
interpreting them do not allow a plaintiff to remove an action.
The district court remanded the matter on that basis. Because
the district court’s remand order was grounded upon a timely
filed 28 U.S.C. § 1447(c) motion asserting a defect in removal
procedure, we have no jurisdiction to review the remand order.
See Albarado, 199 F.3d at 766 (noting that statutory restrictions
against removal were procedural defects). The appeal from the
remand order is DISMISSED.
Although the district court’s remand order is not reviewable
on appeal, we may review for an abuse of discretion the district
No. 01-50037
-3-
court’s 28 U.S.C. § 1447(c)** award of attorney’s fees and costs.
Garcia v. Amfels, Inc., 254 F.3d 585, 587 (5th Cir. 2001).
“Central to the determination of whether attorneys’ fees should
be granted is the propriety of the [removing party’s] decision to
remove.” Id. (citation omitted).
LaChance argues for the first time on appeal that his
removal was proper because Talmadge’s motion for an order
determining LaChance a vexatious litigant was a “separate
lawsuit” in which LaChance was made a defendant. This court will
not consider the newly raised argument. See Shanks v.
AlliedSignal, Inc., 169 F.3d 988, 993 n.6 (5th Cir. 1999).
Moreover, the argument is frivolous on its face. See 28 U.S.C.
§§ 1441, 1446; Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100,
107-08 (1941) (holding that a plaintiff may not remove an action
even when a counterclaim is filed). LaChance fails to
demonstrate that the district court abused its discretion in
awarding attorney’s fees and costs for his improper removal;
therefore, we AFFIRM the district court’s 28 U.S.C. § 1447(c)
award. Garcia, 254 F.3d at 587.
LaChance’s motion to supplement the record on appeal and
Talmadge’s request for sanctions are DENIED.
APPEAL FROM REMAND ORDER DISMISSED; AWARD OF ATTORNEY’S FEES
AND COSTS AFFIRMED; MOTION TO SUPPLEMENT THE RECORD DENIED;
REQUEST FOR SANCTIONS DENIED.
**
Section 1447(c) 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.”
28 U.S.C. § 1447(c).