Cash v. Camco International ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-20002
Summary Calendar
HENRY L. CASH, SR.; EMMIT DAVIS; AUSTIN RILEY;
CLEVELAND ROBINSON, JR.; JOE VALENTINE,
Plaintiffs-Appellees,
versus
CAMCO INTERNATIONAL, INC.; REED TOOL COMPANY,
Defendants-Appellants.
___________________________________________________
WILFORD M. BOOKER; LIONEL CARMAN; GOREE CHATMAN, JR.; LEVANT
CHERRY; LINCOLN COMO; HERMAN COOK; ANNIE DEAMS; EDDIE DICKEY;
CLAUDIA L. ERVIN; ARTHUR RAY HARRISON; JAMES JACKSON; MATTIE
L. JOHNSON; EDWARD L. MCGOWAN; ALVIN NMN SMITH; FLEET SPENCER;
CHARLES NMN TAYLOR; MILTON WINTERS,
Plaintiffs-Appellees,
versus
CAMCO INTERNATIONAL, INC.; REED TOOL COMPANY,
Defendants-Appellants.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
(98-CV-2892) & (98-CV-2893)
--------------------
January 26, 2000
Before POLITZ, WIENER, and PARKER, Circuit Judges.
PER CURIAM:*
*
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that this opinion should not be published and is not precedent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.
Defendants appeal an order remanding the Booker lawsuit to
state court and imposing costs and attorneys fees on the
defendants. The Booker lawsuit was remanded to state court under
28 U.S.C. § 1447(c) for lack of subject matter jurisdiction.
Orders remanding cases pursuant to 28 U.S.C. § 1447(c) are not
reviewable on appeal, by mandamus or otherwise, except in civil
rights cases. 28 U.S.C. § 1447(d); Tillman v. CSX Transp., Inc.,
929 F.2d 1023, 1026 (5th Cir. 1991). Defendants argue that §
1447(d) does not prohibit us from voiding the order remanding
Booker because defendants are not asking for a review of the remand
on the merits. Rather, argue defendants, the misfiling of their
Motion to Consolidate the Booker and Cash lawsuits, followed by
Judge Harmon’s subsequent granting of that motion, rendered Judge
Hoyt’s previous remand of Booker void ab initio.
This argument is resourceful and imaginative but fatally
flawed, as the language of § 1447(d) is clear: “An order remanding
a case to the State court from which it was removed is not
reviewable on appeal . . . .” In addition, we have determined
previously that when a district court clerk mails a certified copy
of the remand order to the state court, the district court is
immediately divested of jurisdiction. See Browning v. Navarro, 743
F.2d 1069, 1078 (5th Cir. 1984). Accordingly, when here the clerk
mailed a certified copy of the order remanding Booker to the state
court, the district court no longer had jurisdiction over the
Booker claim. We therefore dismiss defendants’ appeal of the
remand order for want of jurisdiction. To that end, we note that
Judge Harmon’s order consolidating the Cash and Booker lawsuits is
void ab initio, as it was issued after Judge Hoyt’s remand of the
Booker lawsuit to state court.
Defendants also appeal the district court’s order imposing
$600.00 in costs and fees against them for the improper removal of
Booker. In reviewing an award of sanctions against a defendant in
connection with a post-removal remand decision, we must examine the
legal propriety of the removal itself. Avitts v. Amoco Production
Co., 111 F.3d 30, 32 (5th Cir. 1997); Miranti v. Lee, 3 F.3d 925,
928 (5th Cir. 1993). “To determine whether removal jurisdiction
existed, defense counsel had only to consider the complaint at the
time the petition for removal was filed.” Id. at 928. A review of
plaintiffs’ petition at the time of removal as well as defendants’
arguments in favor of removal indicate that defendants presented a
colorable claim of federal jurisdiction. See Id. We therefore
vacate the award of fees against defendants.
As for court costs, we noted in Miranti that such an award has
never been predicated on a finding of bad faith or negligent or
frivolous removal. 3 F.3d at 929. According to a commentary on
the 1988 revision of § 1447(c), attorneys’ fees should be awarded
only if it was improper for the defendant to remove. Miranti, 3
F.3d at 928 (citing Commentary on 1988 Revision following 28
U.S.C.A. § 1447 (West Supp. 1993)). No such restriction on a
court's discretion to award court costs is suggested in the
amendment, however. Id.
The award of attorneys’ fees is therefore vacated, but the
order awarding court costs is affirmed. As Judge Hoyt’s order
3
remanding Booker did not itemize the $600 award between fees and
costs, however, we direct the district court to separate the $600
into attorneys’ fees and court costs, of which defendants are
responsible only for the latter.
APPEAL OF ORDER REMANDING BOOKER DISMISSED FOR LACK OF
JURISDICTION; APPEAL OF SANCTIONS VACATED IN PART AND AFFIRMED IN
PART; REMANDED FOR PURPOSE OF APPORTIONING SANCTIONS INTO COSTS AND
FEES.
4