United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS May 21, 2003
FOR THE FIFTH CIRCUIT
____________________ Charles R. Fulbruge III
Clerk
No. 02-41278
Summary Calendar
____________________
DAVID HAFFLEY, Deceased; MARY LOU HAFFLEY;
KATRINA KAY HAFFLEY,
Plaintiffs-Appellees,
versus
NATIONWIDE MUTUAL INSURANCE CO.; JOHN VEALE;
NATIONWIDE INSURANCE CO.,
Defendants-Appellants.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
(6:02-CV-197)
_________________________________________________________________
Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Nationwide appeals the remand of this action, pursuant to 28
U.S.C. § 1447(c), to Texas state court. Alternatively, it
petitions for mandamus relief. Nationwide also appeals the
district court’s awarding plaintiff costs and fees related to
Nationwide’s removal.
Judy Chaney, pursuant to a turnover order through which she
obtained the Haffleys’ rights against Nationwide, brought suit in
*
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this opinion should not be published and is not precedent except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.
Texas state court. She alleged: (1) unfair claim settlement
practices under, inter alia, Art. 21.21, § 4(10) of the Texas
Insurance Code; (2) breach of the duty to settle; and (3) violation
of the Texas Deceptive Trade Practices Act (DTPA). Chaney also
sought a declaratory judgment that a release signed by the Haffleys
regarding these claims was invalid. Nationwide removed to federal
court, contending that its employee, Veale, had been fraudulently
joined to defeat diversity jurisdiction. As noted, the case was
remanded to state court.
“Our standard of review as to determinations of jurisdiction
is plenary.” Bogle v. Phillips Petroleum Co., 24 F.3d 758, 760
(5th Cir. 1994)(citation omitted). "An order remanding a case to
the State court from which it was removed is not reviewable on
appeal or otherwise...." 28 U.S.C. § 1447(d). However, only those
cases remanded for grounds described in § 1447(c) are immune to
review under § 1447(d). Thermtron Prods., Inc. v. Hermansdorfer,
423 U.S. 336, 345-46 (1976), abrogated on other grounds,
Quackenbush v. Allstate Ins. Co., 517 U.S. 706 (1996). Lack of
subject matter jurisdiction is a § 1447(c) ground. E.g. Heaton v.
Monogram Credit Card Bank of Georgia, 231 F.3d 994, 997 (5th Cir.
2000), cert. denied, 533 U.S. 915 (2001). The district court
determined that it lacked diversity jurisdiction and, pursuant to
§ 1447(c), remanded the action to state court. Therefore, this
court has no jurisdiction to review that decision whether through
appeal, see 28 U.S.C. § 1447(d), or through a petition for a writ
of mandamus, e.g. Linton v. Airbus Industrie, 30 F.3d 592, 599 (5th
Cir.), cert. denied, 513 U.S. 1044 (1994).
An award of fees and costs relating to a motion to remand is
reviewed for abuse of discretion. Valdes v. Wal-Mart Stores, Inc.,
199 F.3d 290, 292 (5th Cir. 2000). The award is proper if the
removing party had no “objectively reasonable grounds to believe
the removal was legally proper”. Id. at 293.
The district court stated: “Since Defendants failed to address
all Plaintiffs’ claims, Defendants could not objectively believe
that removal was legally proper”. The district court held
defendants failed to address plaintiffs’ claims under the Texas
Uniform Fraudulent Transfer Act (TUFTA) “and only address[ed] the
Texas [DTPA] under the issue of collateral estoppel”. Regarding
the release that defendants claim immunizes them from suit, the
district court stated defendants “never address[ed] Plaintiffs’
claims of fraud, duress, or lack of consideration”.
Regarding TUFTA, none of the plaintiffs’ pleadings assert a
claim under the Act, nor do plaintiffs contend on appeal that they
did so. As to plaintiffs’ DTPA claim, it is tied to the Art. 21.21
claim, which the district court found to only “possib[ly]”
constitute a state cause of action. See TEX. BUS. & COM. CODE §
17.50(a)(4). Finally, defendants, in responding to plaintiffs’
remand motion, addressed plaintiffs’ claims of fraud, duress and
lack of consideration with regard to the release by contending
there was no evidence to support such claims. In this regard, the
defendants attached an affidavit by Haffley to show those claims
were invalid.
Because the district court based its determination that
defendants could not objectively believe that removal was proper on
the defendants’ failure to address the above issues, it abused its
discretion in awarding costs and fees to plaintiffs.
DISMISSED IN PART; VACATED IN PART