Helen McCann v. Ppg Industries, Incorporate , 448 F. App'x 421 ( 2011 )


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  •      Case: 11-30391     Document: 00511634590         Page: 1     Date Filed: 10/17/2011
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT  United States Court of Appeals
    Fifth Circuit
    FILED
    October 17, 2011
    No. 11-30391                          Lyle W. Cayce
    Summary Calendar                             Clerk
    HELEN CLAUDETTE MCCANN; ANGELA DEE MYLES; JULIE DEE
    SPENCER; ALICIA DANIELLE DEE BROWN; DORSEY MCCANN,
    Plaintiffs-Appellees,
    v.
    P P G INDUSTRIES, INCORPORATED; SHERWIN WILLIAMS COMPANY,
    Defendants-Appellants
    Appeal from the United States District Court
    for the Western District of Louisiana
    USDC No. 1:10-CV-768
    Before REAVLEY, SMITH, and PRADO, Circuit Judges.
    PER CURIAM:*
    Plaintiffs-Appellees Helen Claudette McCann, Angela Dee Myles, Julie
    Dee Spencer, Alicia Danielle Dee Brown, and Dorsey McCann (collectively, “the
    McCanns”) sue Defendants-Appellants P P G Industries, Inc., and Sherwin
    Williams Co. (collectively “P P G”) for the death of Dorsey McCann, which the
    McCanns allege resulted from his workplace exposure to P P G’s paint products.
    *
    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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
    Case: 11-30391   Document: 00511634590      Page: 2   Date Filed: 10/17/2011
    No. 11-30391
    The case was initially brought in the 28th District Court for the Parish of
    LaSalle, Louisiana, on March 11, 2004. After over six years of litigation, the
    state court set a trial date of May 10, 2010. The trial did not occur, however,
    because on that day P P G removed the case to federal court.
    The federal district court found that removal was improper and remanded
    the case on September 9, 2010. The district court awarded the McCanns
    $8,925.00 in attorney fees resulting from the improper removal. as well as
    $16,317.68 in costs and other expenses. The McCanns paid their five experts
    $17,361.00 in fees for the experts’ preparation during the week preceding the
    May 10, 2010 trial date. The district court found that $15,561.00 worth of the
    experts’ work “was wasted due to the defendants’ improvident removal.” The
    district court also found that the removal deprived the McCanns of the benefit
    of $756.68 in other costs they incurred in anticipation of the May 10, 2010 trial
    date. P P G appeals the $16,317.68 award for expenses. We REVERSE.
    Title 28, U.S.C., Section 1447(c) provides that “[a]n order remanding the
    case may require payment of just costs and any actual expenses, including
    attorney fees, incurred as a result of the removal.” We apply an abuse of
    discretion standard when reviewing a district court’s award of fees and costs
    under § 1447(c). Hornbuckle v. State Farm Lloyds, 
    385 F.3d 538
    , 541 (5th Cir.
    2004). “A district court abuses its discretion if it bases its decision on an
    erroneous view of the law or on a clearly erroneous assessment of the evidence.”
    Esmark Apparel, Inc. v. James, 
    10 F.3d 1156
    , 1163 (5th Cir. 1994).
    The expenses awarded in this case were incurred before the McCanns were
    even aware that P P G intended to remove. Although the removal deprived the
    McCanns of the benefit of the pre-removal trial preparation, it is impossible that
    the expense of that preparation was incurred as a result of the removal.
    The district court’s judgment of April 5, 2011, is VACATED; the case is
    REMANDED for reassessment of the expense award under 28 U.S.C. § 1447(c).
    2
    

Document Info

Docket Number: 11-30391

Citation Numbers: 448 F. App'x 421

Judges: Per Curiam, Prado, Reavley, Smith

Filed Date: 10/17/2011

Precedential Status: Non-Precedential

Modified Date: 8/5/2023