Garcia v. Amfels, Inc.

                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT
                  _________________________________

                             No. 00-41037
                  _________________________________



DORA GARCIA, Individually, and as Representative
Of the Estate of Bladimir Garcia and as next friend
Of Julianna Ruby Garcia and Yesenia Michelle Garcia,
Minor Children; Jose Garcia Vasquez; and Alba Garcia

                 Plaintiffs-Appellees,

          v.

AMFELS, INC.,

                 Defendant-Appellant.

                ---------------------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                          June 19, 2001

Before HIGGINBOTHAM and BENAVIDES, Circuit Judges and
DUPLANTIER*, District Judge.

BENAVIDES, Circuit Judge:

     The Appellant, Amfels, Inc., appeals the district court’s

order granting Appellees’ motion for attorneys’ fees and expenses

incurred in prosecuting their motion to remand under § 1447(c).

This case arose out of an accident which occurred on April 22,

1999, at the Amfels shipyard at the Port of Brownsville, Texas.

Tragically, Bladimir Garcia, during the course of his duties,

received an electric shock and died.



     *
      District Judge of the Eastern District of Louisiana, sitting
by designation.
     The Appellees, the Garcias, filed suit in Texas state court

asserting Texas state law claims for negligence and premises

liability.    Their petition made no reference to the Longshore and

Harbor Worker’s Compensation Act (LHWCA) or any other federal

statute, regulation, law, or question.     In their answer, Amfels

raised the LHWCA as an affirmative defense, arguing the suit was

preempted.    Amfels then removed the case to federal court on the

basis of federal question jurisdiction.    The Garcias filed a

motion to remand the case to state court.    Relying upon our

holding in Aaron v. National Union Fire Ins. Co. of Pittsburg

[sic], Pa., 876 F.2d 1157 (5th Cir. 1989) that a LHWCA defense

does not create federal subject matter jurisdiction, the district

court granted the Garcias’ motion to remand.

     Section 1447(c) authorizes the district court to “require

payment of just costs and any actual expenses, including attorney

fees, incurred as a result of the removal.”1    28 U.S.C. § 1447.

This Court has appellate jurisdiction to review the imposition of


     1
         Section 1447 (c) provides that:

     A motion to remand the case on the basis of any defect other
     than lack of subject matter jurisdiction must be made within
     30 days after the filing of the notice of removal under
     section 1446(a).   If at any time before final judgment it
     appears that the district court lacks subject matter
     jurisdiction, the case shall be remanded. An order remanding
     the case may require payment of just costs and any actual
     expenses, including attorney fees, incurred as a result of the
     removal. A certified copy of the order of remand shall be
     mailed by the clerk to the clerk of the State court. The
     State court may thereupon proceed with such case.

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costs and fees even though 28 U.S.C. § 1447(d) provides that a

remand order is not reviewable by appeal or otherwise.     Miranti

v. Lee, 3 F.3d 925, 927-28 (5th Cir. 1993).    Central to the

determination of whether attorneys’ fees should be granted is the

propriety of the defendant’s decision to remove.2    Id. at 928.

In this case, the district court ruled that because Fifth Circuit

law explicitly prevented removal based on a LHWCA defense,

Defendant’s removal of the case was frivolous.     The district

court ordered Amfels to pay $4,658.62 in attorneys’ fees and

expenses.   The decision of the district court to award attorneys’

fees is reviewed for an abuse of discretion.     Valdes v. Wal-Mart

Stores, Inc., 199 F.3d 290, 291 (5th Cir. 2000).    Finding no

abuse of discretion, we AFFIRM the judgment of the district

court.



                            Discussion

     Appellant contends that in light of the apparent conflict

between our holdings in Atkinson v. Gates, McDonald & Co., 838



     2
      The commentary accompanying the 1988 revision to § 1447
states that:
     the amendment of subdivision (c) now authorizes the court to
     add “actual expenses, including attorney fees”, should it find
     that it was improper for the defendant to remove the case.
     The matter is left to the court's discretion, to be exercised
     based on the nature of the removal and the nature of the
     remand.
     David D. Siegel, Commentary on 1988 Revision to 28 U.S.C. §
     1447 (West Supp. 1993).

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F.2d 808 (5th Cir. 1988) and Aaron v. National Union Fire Ins.

Co. of Pittsburg, Pa., 876 F.2d 1157 (5th Cir. 1989), the

district court abused its discretion by imposing costs and fees.

In Aaron, a unanimous panel of this Court held that the LHWCA

does not create federal subject matter jurisdiction when raised

as a defense.   Aaron, 876 F.2d at 1161-64.   Appellant contends

that Aaron runs contrary to our prior holding in Atkinson,

wherein this Court relied upon the exclusivity provision of §

905(a) of the LHWCA to hold that the LHWCA was preemptive of the

plaintiff’s state law claims and provided the plaintiff’s

exclusive remedy.   838 F.2d at 809-810.   Atkinson, however, was a

diversity case and did not involve removal based on federal

question jurisdiction.   Atkinson therefore did not resolve the

issue relevant to this appeal – that is, whether the LHWCA

provides a basis for federal jurisdiction when raised as a

defense.

     Ultimately, Appellant is unable to cite any Fifth Circuit

case, nor any persuasive authority from another circuit,

supporting removal.   Appellant therefore resorts to arguing that

Aaron was wrongly decided.3   Appellant’s argument that Aaron was

wrongly decided is as misplaced as it is unpersuasive.   We do not

have jurisdiction to review the district court’s remand order.



     3
       Before the district court, Appellant did not defend the
removal as a good faith effort to obtain a change of existing law.

                                 4
See 28 U.S.C. § 1447(d).   The sole issue on appeal is whether the

district court abused its discretion in imposing costs and fees

upon Appellant pursuant to § 1447(c).

     Despite Appellant’s attempt to conjure up a conflict in this

Court’s caselaw, there is no question that the LHWCA does not

create federal subject matter jurisdiction supporting removal.

Aaron v. National Union Fire Ins. Co. of Pittsburg, Pa., 876 F.2d

1157 (5th Cir. 1989); see also Hart v. Bayer Corp., 199 F.3d 239,

245 (5th Cir. 2000); Griffis v. Gulf Coast Pre-Stress Co., Inc.,

850 F.2d 1090, 1092 (5th Cir. 1988).    The LHWCA is a preemption

defense that needs to be raised in state court.    Presented with

controlling Fifth Circuit precedent and precedent from its own

district imposing costs and fees for removal under the LHWCA, the

district court clearly did not abuse its discretion in granting

Appellees’ motion for attorneys’ fees and costs in connection

with the motion to remand.   See Masters v. Swiftships Freeport,

Inc., 867 F.Supp. 555, 558-59 (S.D. Tex. 1994) (imposing costs

and fees upon finding that Defendant’s removal under the LHWCA

was frivolous and utterly groundless).    Accordingly, the judgment

of the district court is AFFIRMED.




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