Lee v. Advanced Fresh Concepts Corp. , 76 F. App'x 523 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
In the August 29, 2003
United States Court of Appeals Charles R. Fulbruge III
Clerk
for the Fifth Circuit
_______________
m 03-30300
Summary Calendar
_______________
KWEI L. LEE,
Plaintiff-Appellant,
VERSUS
ADVANCED FRESH CONCEPTS CORP.,
Defendant-Appellee,
_________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
m 02-CV-3830
_________________________
Before SMITH, BARKSDALE, and STEWART,
Circuit Judges. Kwei Lee appeals the denial of her motion
for attorney’s fees she sought for er removal.
PER CURIAM:* 28 U.S.C. § 1447(c). Finding no abuse of dis-
cretion, Valdes v. Wal-Mart Stores, Inc., 199
F.3d 290, 292 (5th Cir. 2000), we affirm.
*
Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be pub-
lished and is not precedent except under the limited (...continued)
(continued...) circumstances set forth in 5TH CIR. R. 47.5.4.
Lee sued Advanced Fresh Concepts Corpo- Where a court remands, “[t]here is no auto-
ration (“AFC”) for breach of contract in Loui- matic entitlement to an award of attorney’s
siana city court, which has jurisdiction over fees. Indeed, the clear language of the statute
controversies involving less than $20,000. Af- makes such an award discretionary.” Valdes,
ter discovery, Lee concluded that her damages 199 F.3d at 292. A court should not award
approached $200,000. In September 2002, fees when “the defendant had objectively rea-
she sent a demand letter to AFC offering to sonable grounds to believe the removal was
settle for $100,000. She also wrote that if legally proper” at the time of removal. Id. at
AFC did not settle, she would transfer the case 293.
to state district court, which has general juris-
diction. When AFC did not respond, Lee sent The district court could have concluded
a follow-up letter in October, then transferred that the removal lacked objectively reasonable
the case in early December. Three weeks grounds. This case is nearly indistinguishable
later, AFC removed to federal district court from Addo, 230 F.3d at 762, in which we held
based on diversity of citizenship. that the plaintiff’s post-complaint demand let-
ter was “other paper” and that the defendant
Lee moved to remand. The original com- did not timely remove within thirty days of re-
plaint, necessarily limited to $20,000, did not ceiving the letter. If anything, Lee’s detailed
satisfy the $75,000 amount-in-controversy re- and very reasonable three-page demand letter
quirement. 28 U.S.C. § 1332(a). Thus, “the presented a stronger basis for removal than did
case stated by the initial pleading [was] not the letter in Addo, which contained two sen-
removable.” 28 U.S.C. § 1446(b). But, “a tences and demanded fifty times the defen-
notice of removal may be filed within thirty dant’s offered settlement. Id. at 760 n.1.
days after receipt by the defendant . . . of other
paper from which it may first be ascertained AFC tries and fails to distinguish Addo by
that the case . . . has become removable.” Id. asserting that Addo did not begin in a state
“[A] post-complaint letter, which is not plainly court of limited jurisdiction. That may or may
a sham, may be ‘other paper’ under § 1446- not be trueSSthe Addo opinion does not spec-
(b).” Addo v. Globe Life & Accident Ins. Co., ifySSbut we cannot see what difference it
230 F.3d 759, 762 (5th Cir. 2000) (footnote makes. Lee stated in the letter that she in-
omitted). The court therefore held that the tended to transfer the case unless it was set-
case became removable when Lee sent the de- tled. Moreover, she sent the follow-up letter
mand letter, but the court remanded because within the original thirty-day window.
AFC’s removal three months later was un-
timely. AFC also complains of being put between
the rock of a premature removal and the hard
Lee then moved for attorney’s fees. The place of an untimely removal. We do not sym-
court denied the motion, concluding that pathize. Our caselaw permits removal based
AFC’s “removal rest[ed] on a colorable claim on “other paper” even without a formally
regarding the state of the facts and the law.” amended complaint,1 just as it protects defen-
Lee appeals that order but not the remand
order.
1
See, e.g., S.W.S. Erectors v. Infax, Inc., 72
(continued...)
2
dants from a fee award where the plaintiff is AFFIRMED.
partially responsible for an improper removal.2
In short, AFC should have heard § 1446(b)’s
thirty-day clock ticking when it received Lee’s
demand letter.
Nevertheless, we are reluctant to reverse
such a highly discretionary order. “Although
from time to time factual situations may arise
in which the district court is required to award
attorney’s fees, the mere determination that re-
moval was improper is not one of them.” Val-
des, 199 F.3d at 292. Although AFC has not
persuasively distinguished Addo, it at least at-
tempted a distinction rather than, say, arguing
that Addo was wrongly decided.3
Furthermore, we acknowledge that Addo
invited this strategy: It held that a good-faith
post-complaint letter “may be ‘other paper’
under § 1446(b),” not that such a letter neces-
sarily is “other paper.” AFC smartly seized
this small difference and offered genuine if
unsuccessful distinctions.
The court reasonably could have ruled ei-
ther way on Lee’s motion, but § 1447(c) is
discretionary, and the exercise of that discre-
tion rests with the district court. We therefore
will not reverse its decision that AFC had ob-
jectively reasonable grounds for the removal
and for its concomitant denial of Lee’s motion
for attorney’s fees.
(...continued)
F.3d 489, 494 (5th Cir. 1996).
2
See, e.g., Avitts v. Amoco Prods. Co., 111
F.3d 30, 32-33 (5th Cir. 1997).
3
See Garcia v. Amfels, Inc., 254 F.3d 585, 588
(5th Cir. 2001) (affirming award of attorney’s fees
under § 1447(c) where defendant only argued that
the controlling case was wrongly decided).
3