Lee Construction Co. of Carolinas, Inc. v. Sloan Construction Co. , 104 F. App'x 323 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-2241
LEE CONSTRUCTION COMPANY OF THE CAROLINAS,
INCORPORATED; ENGLISH CONSTRUCTION COMPANY;
SEABOARD SURETY COMPANY,
Plaintiffs - Appellants,
versus
SLOAN CONSTRUCTION COMPANY, INCORPORATED;
COLAS, INCORPORATED; LIBERTY MUTUAL INSURANCE
COMPANY,
Defendants - Appellees.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Cameron McGowan Currie, District
Judge. (CA-03-2622-3)
Submitted: July 21, 2004 Decided: August 11, 2004
Before NIEMEYER, MICHAEL, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Robert L. Widener, Benjamin E. Nicholson, V, McNAIR LAW FIRM, P.A.,
Columbia, South Carolina, for Appellants. L. Franklin Elmore,
ELMORE & WALL, P.A., Greenville, South Carolina; Keith E. Coltrain,
ELMORE & WALL, P.A., Raleigh, North Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Lee Construction Company of the Carolinas, Inc., English
Construction Company, and Seaboard Surety Company (the Plaintiffs)
filed a complaint in South Carolina state court against Sloan
Construction Company, Inc., Colas, Inc., and Liberty Mutual
Insurance Company (the Defendants), arising out of a dispute over
construction contracts. The Defendants removed the action to
federal district court, which issued a show cause order directing
the Defendants to show cause why the case should not be remanded
for lack of subject matter jurisdiction because, inter alia, one of
the Defendants was a resident of South Carolina. See 28 U.S.C.
§ 1441(b) (2000). The district court remanded the case to state
court. The Plaintiffs appeal the denial of their request for
attorneys’ fees.
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.” 28
U.S.C. § 1447(c) (2000). The district court’s decision is
reviewed for abuse of discretion. In re Lowe, 102 F.3d 731, 733
n.2 (4th Cir. 1996).
Although parties are presumptively entitled to recover
attorneys’ fees under § 1447(c), see Garbie v. DaimlerChrysler
Corp., 211 F.3d 407, 410 (7th Cir. 2000), “the entitlement is not
automatic—-the presumption is not irrebuttable.” Sirotzky v. New
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York Stock Exch., 347 F.3d 985, 986 (7th Cir. 2003). We find that,
based on the facts of this case, the district court acted well
within its discretion in denying the Plaintiffs’ request for
attorneys’ fees. Accordingly, we affirm. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
AFFIRMED
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