Lost Mountain Homeowners v. J. Andrew Rice

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPTEMBER 13, 2007
No. 07-11844 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

D. C. Docket No. 07-00564-CV-BBM-1

LOST MOUNTAIN HOMEOWNERS
ASSOCIATION, INC., et al.

Plaintiffs-Appellees,

versus

J. ANDREW RICE,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Northern District of Georgia
_________________________

(September 13, 2007)

Before DUBINA, CARNES and FAY, Circuit Judges.

PER CURIAM:
J. Andrew Rice appeals the district court’s grant of the motion to remand to

state court and to award costs and expenses filed by Lost Mountain Homeowners

Association, Inc., et al. (“the Plaintiffs”) after Rice removed the Plaintiffs’ case

against him. Rice specifically argues that the case should not have been remanded

because the Plaintiffs violated, inter alia, his right to due process by filing

pleadings with an improper case style. Rice argues that attorney’s fees should not

have been awarded because his removal action did not lack a reasonable basis. For

the reasons set forth more fully below, we affirm.

The Plaintiffs filed an action in state court to garnish Rice’s wages in

satisfaction of a money judgment in their favor. Rice filed a notice of removal to

the district court. In support of removal, Rice asserted that the Plaintiffs had filed

pleadings in the name of the Architectural Control Committee of the Lost

Mountain Township Association (“LMTA”), while the state court only had issued

a money judgment in favor of the Lost Mountain Homeowners Association, Inc.

(“LMHA”) and the Architectural Control Committee of the Lost Mountain

Township Homeowners Association (“LMTHA”), such that the pleadings neither

listed all of the parties nor the correct parties. The Plaintiffs then filed a motion to

remand to state court and for costs and expenses, arguing that Rice’s notice of

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removal did not allege a federal question. The district court granted the motion

and awarded attorney’s fees for the work done in connection with the notice of

removal.

As a preliminary matter, we already have sua sponte dismissed for lack of

jurisdiction under 28 U.S.C. § 1447(d) Rice’s appeal to the extent it challenges the

district court’s order of remand. We likewise have denied Rice’s motion for

reconsideration of our sua sponte dismissal.1 Accordingly, the only issue before us

now is the district court’s award of attorney’s fees.

We review the grant of attorney’s fees under 28 U.S.C. § 1447(c) for abuse

of discretion. Bauknight v. Monroe County, Fla., 446 F.3d 1327, 1329 (11th Cir.

2006). Pursuant to § 1447(c), the plaintiff in a state court action removed to

federal court may move the district court to return the case to state court. If the

district court grants the plaintiff’s motion, it also may require the defendant to pay

the “just costs and any actual expenses, including attorney fees, incurred as a result

of the removal.” Id. The Supreme Court recently held that “[a]bsent unusual

circumstances, courts may award attorney’s fees under § 1447(c) only where the

1
On appeal, Rice argues that we violated his due process rights by sua sponte dismissing
in part his appeal without first considering his appellate brief. This argument is without merit.
See Marshall v. Gibson’s Products, Inc. of Plano, 584 F.2d 668, 672 (5th Cir. 1978) (holding that
“[i]t is incumbent on a court of the United States, whether trial or appellate, to dismiss an action
whenever it appears that subject matter jurisdiction is lacking, and the court must do so sua
sponte if the parties have not brought the issue to the attention of the court.”).

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removing party lacked an objectively reasonable basis for seeking removal.”

Martin v. Franklin Capital Corp., 546 U.S. 132, 126 S.Ct. 704, 711, 163 L.Ed.2d

547 (2005). We since have explained that

[t]he reasonableness standard was ultimately the result of balancing
the desire to deter removals sought for the purpose of prolonging
litigation and imposing costs on the opposing party, while not
undermining Congress’ basic decision to afford defendants a right to
remove as a general matter, when the statutory criteria are satisfied.

Bauknight, 446 F.3d at 1329.

Pursuant to 28 U.S.C. § 1441, a defendant has reasonable grounds to remove

a civil action originally filed in a state court to the federal district court when the

district court has original jurisdiction to consider the case. Original jurisdiction

requires diversity of the parties or the existence of a federal question. 28 U.S.C.

§ 1441(b); Geddes v. American Airlines, Inc., 321 F.3d 1349, 1352 n.2 (11th Cir.

2003).

Here, the district court did not abuse its discretion in awarding attorney’s

fees, as Rice lacked a reasonable basis to remove the case to the district court. See

Bauknight, 446 F.3d at 1329; Martin, 546 U.S. at 132, 126 S.Ct. at 711. Rice has

not shown, and the record otherwise does not demonstrate, that the parties to the

case were diverse or that the case involved a federal question. See 28 U.S.C.

§ 1441(b); Geddes, 321 F.3d at 1352 n.2. Rather, the crux of Rice’s claim is that

the Plaintiffs left out a word in the case style for their pleadings. This is just the

sort of dilatory argument that we have cited as meriting attorney’s fees. See
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Bauknight, 446 F.3d at 1329. Accordingly, we affirm the district court’s order.

AFFIRMED.