Debbie Devine v. Prison Health Services, Inc. , 212 F. App'x 890 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
DEC 27, 2006
No. 06-14158 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00982-CV-T-23-TBM
DEBBIE DEVINE,
Plaintiff-Appellee,
versus
PRISON HEALTH SERVICES, INC.,
Defendant-Appellant,
AMERICA SERVICE GROUP, INC., et al.,
Defendants.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(December 27, 2006)
Before BIRCH, PRYOR and HILL, Circuit Judges.
PER CURIAM:
Debbie Devine seeks the award of attorney’s fees incurred by her due to the
alleged improper removal to federal court of this action by defendant, Prison
Health Services, Inc. The district court awarded certain of the fees and the
defendant appealed.
I.
Debbie Devine filed this action in state court against appellant and others for
violations of the Florida Private Whistle blowers Act, § 448.1 02, defamation,
wrongful discharge, payment for accrued but unpaid wages, intentional infliction
of emotional distress, and false light invasion of privacy. Devine’s claims arise
under Florida statutes and Florida common law.
In May of 2005, Prison Health Services, Inc., (“PHS”) removed this action,
asserting that Devine invoked federal jurisdiction by mentioning the words
“federal” and “overtime” in her complaint. In addition to filing the Notice of
Removal, PHS filed approximately 50 pages of pleadings against Devine in the
federal court to which she was forced to respond.
In June of 2005, two days after removal, Devine filed an Amended
Complaint in which she removed the word “federal” from her complaint and
requested that PHS stipulate to her contemporaneously filed motion for remand.
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PHS refused.
On July 7, 2005, the district court granted Devine’s motion and remanded
the action to state court, holding that PHS had failed to establish a basis for federal
jurisdiction. The court rejected PHS’s claim that federal question jurisdiction
appears on the face of the complaint, stating that “[m]erely employing the word
‘overtime’ in a complaint raises no federal question unless the ‘overtime’
compensates work in excess of forty hours . . . .” The court also held that diversity
jurisdiction was not available as a basis for jurisdiction because not all the parties
were diverse, PHS did not meet its “heavy burden” to show fraudulent joinder, and
there was no showing that the amount in controversy was met. The court granted
Devine’s request for fees and costs incurred as the result of the improper removal.
The district court referred the matter to the magistrate judge to determine the
amount of fees. On March 10, 2006, the magistrate issued a Report and
Recommendation granting $2,821.50 to Devine. PHS filed no objections to the
Report and Recommendation. Accordingly, on March 29, 2006, the district court
entered a final order adopting the Report and Recommendation and awarding the
fees as determined by the magistrate judge.
On April 10, 2006, PHS filed a motion for reconsideration of the award of
attorney’s fees, asserting as “intervening law” a Supreme Court decision that was
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handed down on December 7, 2005, after the district court order awarding fees but
over three months before both the Report and Recommendation and the district
court’s order reducing its award to a judgment. PHS claimed that this intervening
law that required reversal of the district court’s award of fees. The district court
denied the motion, holding that the authority from the Supreme Court did not
change the result in this case. We agree.
II.
The Supreme Court’s decision in Martin v. Franklin Capital Corp., 126 S.
Ct. 704 (2005), does not require that we reverse the district court’s award of fees in
this case. In Martin, the Court held that there is no presumption in favor of the
award of fees and costs upon the grant of remand for improvident removal. Id. at
711. PHS contends that reversal of the district court award is required because
the district court “appear[ed] to award fees simply because the case was
remanded,” which Martin prohibits. We disagree.
In remanding this case, the district court specifically relied upon and cited
Tran v. Waste Management, Inc., 290 F. Supp. 2d 1286 (M.D. Fla. 2003). Tran
permits the award of attorney’s fees, in the discretion of the district court, when the
district court finds that the removal was “patently improper” and the defendant
demonstrated no reasonable basis for removal. Id. at 1295. Thus, the district
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court clearly recognized that it was exercising its discretion in the award of these
fees. Martin is inapplicable.
As to whether the district court abused its discretion in choosing to award
these fees, Martin explains that “the standard for awarding fees should turn on the
reasonableness of the removal.” 126 S. Ct. at 711. The district court determined
that the removal in this case was not objectively reasonable because there was no
basis for federal jurisdiction on the face of the complaint. We find no abuse of
discretion in this conclusion. Fowler v. Safeco Ins. Co., 915 F.2d 616, 617 (11 th
Cir. 1990) (we may review the merits of a remand order in considering whether the
district court abused its discretion by awarding attorneys’ fees and costs under 28
U.S.C. § 1447(c)).
PHS had no objectively reasonable basis for removing this action. See
Martin, 126 S. Ct. at 711. The magistrate found and the district court agreed that
Devine’s complaint asserted no federal question on its face and PHS failed to
provide a reasonable argument in support of diversity jurisdiction. Accordingly,
the district court concluded that PHS failed to demonstrate any objectively
reasonable basis for federal jurisdiction in its removal petition or arguments in
support thereof. Based upon our review of this record and the briefs on appeal, we
find no abuse of discretion in this conclusion. Accordingly, the judgment of the
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district court awarding fees is
AFFIRMED.
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