LaChance v. Talmadge

• Court: Court of Appeals for the Fifth Circuit
• Decided: September 24, 2001
• Docket: 01-50037
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-50037 Summary Calendar

JIM LACHANCE,

Plaintiff-Appellant,

versus

JEFFREY D. TALMADGE,

Defendant-Appellee.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. A-00-CV-689-SS -------------------- September 21, 2001

Before JONES, SMITH, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Jim LaChance, proceeding pro se, appeals the district

court’s order remanding this matter to state court and awarding

attorney’s fees and costs in favor of the defendant, Jeffrey D.

Talmadge. LaChance, who is the plaintiff in this legal

malpractice action, argues that he properly removed the action

because Talmadge asserted a “separate lawsuit” against him and

that the district court’s award of attorney’s fees and costs is

unconstitutional.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 01-50037 -2-

If necessary, this court must sua sponte examine the basis

of its jurisdiction. Mosley v. Cozby, 813 F.2d 659, 660 (5th

Cir. 1987). Under 28 U.S.C. § 1447(d), “[a]n order remanding a

case to the State court from which it was removed is not

reviewable on appeal or otherwise . . . .” This court “ha[s]

construed the 28 U.S.C. § 1447(d) prohibition against appellate

review of remand orders as being limited to those situations

where the district court’s remand order is grounded upon either

subject matter jurisdiction or a timely filed [28 U.S.C.]

§ 1447(c) motion asserting a defect in removal.” Albarado v.

S. Pac. Transp. Co., 199 F.3d 762, 764 (5th Cir. 1999) (citations

omitted).

Talmadge timely filed a motion to remand pursuant to 28

U.S.C. § 1447(c), asserting that LaChance’s removal of the action

was improper because the federal removal statutes and the caselaw

interpreting them do not allow a plaintiff to remove an action.

The district court remanded the matter on that basis. Because

the district court’s remand order was grounded upon a timely

filed 28 U.S.C. § 1447(c) motion asserting a defect in removal

procedure, we have no jurisdiction to review the remand order.

See Albarado, 199 F.3d at 766 (noting that statutory restrictions

against removal were procedural defects). The appeal from the

remand order is DISMISSED.

Although the district court’s remand order is not reviewable

on appeal, we may review for an abuse of discretion the district No. 01-50037 -3-

court’s 28 U.S.C. § 1447(c)** award of attorney’s fees and costs.

Garcia v. Amfels, Inc., 254 F.3d 585, 587 (5th Cir. 2001).

“Central to the determination of whether attorneys’ fees should

be granted is the propriety of the [removing party’s] decision to

remove.” Id. (citation omitted).

LaChance argues for the first time on appeal that his

removal was proper because Talmadge’s motion for an order

determining LaChance a vexatious litigant was a “separate

lawsuit” in which LaChance was made a defendant. This court will

not consider the newly raised argument. See Shanks v.

AlliedSignal, Inc., 169 F.3d 988, 993 n.6 (5th Cir. 1999).

Moreover, the argument is frivolous on its face. See 28 U.S.C.

§§ 1441, 1446; Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100,

107-08 (1941) (holding that a plaintiff may not remove an action

even when a counterclaim is filed). LaChance fails to

demonstrate that the district court abused its discretion in

awarding attorney’s fees and costs for his improper removal;

therefore, we AFFIRM the district court’s 28 U.S.C. § 1447(c)

award. Garcia, 254 F.3d at 587.

LaChance’s motion to supplement the record on appeal and

Talmadge’s request for sanctions are DENIED.

APPEAL FROM REMAND ORDER DISMISSED; AWARD OF ATTORNEY’S FEES

AND COSTS AFFIRMED; MOTION TO SUPPLEMENT THE RECORD DENIED;

REQUEST FOR SANCTIONS DENIED.

** 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).