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.
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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.
2
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).
3
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.
5