LaGrotte v. Simmons Airlines Inc

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 13, 2001
• Docket: 99-11405
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-11405

MICHAEL LaGROTTE,

Plaintiff-Appellee,

v.

SIMMONS AIRLINES, INC., Individually and Doing Business as AMERICAN EAGLE, CLIFF KLIESLING, and JACK B. SHATTUCK,

Defendants-Appellants.

Appeal from the United States District Court for the Northern District of Texas (3:99-CV-2652-G)

February 13, 2001 Before GARWOOD, PARKER, and DENNIS, Circuit Judges.

PER CURIAM:*

Appellants appeal the district court’s order remanding this

action to state court and imposing costs and attorney fees based on

bad-faith removal. Although the order could have been more

precise, we nonetheless conclude that we lack jurisdiction to

review the merits of the remand order. In addition, we vacate the

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. finding of bad-faith removal and affirm the remainder of the order

imposing costs and expenses, including attorney fees, under 28

U.S.C. § 1447(c). We deny all pending motions as moot.

I.

Appellee, a former airline pilot employed by Appellants,

originally brought this action in state court alleging various

state-law claims against Appellants for a variety of incidents

culminating in Appellants’ discharge of Appellee in December 1996,

for his refusal to fly in bad weather conditions. Appellee

specifically alleged causes of action for wrongful discharge,

promissory estoppel, breach of contract, negligent

misrepresentation, and intentional infliction of emotional

distress.

On May 29, 1997, Appellants removed the action to the district

court, asserting complete preemption under the Railway Labor Act

(“RLA”), 45 U.S.C. §§ 151-188, and the Airline Deregulation Act

(“ADA”), 49 U.S.C. § 41713. Notwithstanding the absence of any

federal question presented in Appellee’s complaint, Appellants

claimed that federal question jurisdiction per 28 U.S.C. § 1331

existed because the complaint involved the interpretation of the

collective bargaining agreement (“CBA”) governing Appellee’s

employment relationship with Appellants. Appellants argued that

such interpretation completely preempted Appellee’s claims under

the RLA, 45 U.S.C. § 184, or otherwise his claims were preempted by

the ADA. Plaintiff filed a motion to remand on June 27, 1997, and

2 the district court granted the motion and remanded the action to

state court on March 16, 1998.

Eleven days before trial in state court, Appellee filed a

motion in limine to exclude certain evidence Appellants sought to

use to limit Appellee’s recovery of damages. The motion alleged

that the evidence should be excluded in light of the terms of the

CBA. Believing that this reference to the CBA by Appellee made the

action removable under 28 U.S.C. § 1446(b), Appellants filed a

second notice of removal in the district court the next business

day, November 22, 1999.

On that same day Appellee filed an emergency motion to remand,

seeking to remand the action back to state court so that the

existing trial setting there could be maintained. The district

court entered an order a few hours later granting Appellee’s motion

to remand, remanding the action to state court, and imposing costs

and attorney fees per § 1447(c). Appellants filed a motion for

reconsideration of the order, which the district court denied, and

a petition for a writ of mandamus, which we denied. Then

Appellants timely appealed the district court’s order.

II.

A.

The initial question before us is whether we have jurisdiction

to review the district court’s remand order. Section 1447 provides

in relevant part:

(c) A motion to remand the case on the basis of any

3 defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded. . . .

(d) An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise. . . .

Section 1447(d) “must be read in pari materia with § 1447(c), so

that only remands based on grounds specified in § 1447(c) are

immune from review under § 1447(d)." Quackenbush v. Allstate Ins.

Co., 517 U.S. 706, 711 (1996); Things Remembered, Inc. v. Petrarca,

516 U.S. 124, 127 (1995); Thermtron Prods., Inc. v. Hermansdorfer,

423 U.S. 336, 343 (1976). Thus, remand orders based on a defect in

removal procedure or lack of subject matter jurisdiction are not

reviewable on appeal or otherwise. See Quckenbush, 517 U.S. at

711; Smith v. Texas Children's Hosp., 172 F.3d 923, 925 (5th Cir.

1999). Section 1447(d) “prohibits review of all remand orders

issued pursuant to § 1447(c) whether erroneous or not.” Thermtron

Prods., Inc., 423 U.S. at 343; Smith, 172 F.3d at 925. However,

when a remand order is not based on a defect in removal procedure

or lack of subject matter jurisdiction, we have jurisdiction to

review the order on appeal. See In re Excel Corp., 106 F.3d 1197,

1200 (5th Cir.) (per curiam), cert. denied, 522 U.S. 859 (1997).

Appellants argue that we have jurisdiction because the

district court did not base remand on a lack of subject matter

4 jurisdiction or other defect in removal procedure. Appellants

specifically argue that the district court based remand on a “per

se rule barring successive appeals.” Because such rule is not a

ground within § 1447(c), Appellants argue that we have jurisdiction

to review the remand order.

We disagree. We conclude that the district court based its

remand order on lack of subject matter jurisdiction under §

1447(c). In ordering remand, the district court stated that “[a]

second removal on the same ground previously urged is not

authorized,” R. at 72 (emphasis added). This statement merely

invoked the general principle that “once a case is remanded to

state court, a defendant is precluded only from seeking a second

removal on the same ground.” S.W.S. Erectors, Inc. v. Infax, Inc.,

72 F.3d 489, 493 (5th Cir. 1996). Subsequent or successive

removals are not per se barred. Id.; cf. § 1446(b). Although the

district court’s order could have been more precise, in light of

the first remand order, which remanded based on a lack of subject

matter jurisdiction, the only rational interpretation of the second

remand order is that it was based on a lack of subject matter

jurisdiction because the district court concluded that the second

notice of removal alleged the same ground for removal--RLA

preemption-–as the first notice of removal. Moreover, the district

court rejected Appellants’ basis for removal jurisdiction “on the

merits.” R. at 72 n.*. Therefore, we lack jurisdiction to review

5 the propriety of the remand order.

B.

However, we do have jurisdiction over the district court’s

order of sanctions finding bad-faith removal and imposing costs and

attorney fees under § 1447(c). See Miranti v. Lee, 3 F.3d 925,

927-28 (5th Cir. 1993). Because costs and expenses, including

attorney fees, under § 1447(c) may not be automatically awarded

whenever remand is authorized, we review orders imposing such

awards for abuse of discretion. Valdes v. Wal-Mart Stores, Inc.,

199 F.3d 290, 292 (5th Cir. 2000). Whether discretion was abused

depends upon the “propriety of the removing party's actions based

on an objective view of the legal and factual elements in each

particular case.” Id. at 293.

Appellants argue that the district court abused its discretion

in entering its sanctions order. Specifically, Appellants argue

that the district court failed to provide them with notice and

opportunity to be heard by entering the order without allowing

Appellants an opportunity to respond to Appellee’s emergency

motion. In addition Appellants argue that sanctions were not

warranted because they properly removed the action in light of

Appellee’s motion in limine.

We disagree. Although we find that the district court erred

in concluding that Appellants removed this action in bad faith, it

was within its discretion in imposing costs and attorney fees. An

6 award of costs and expenses under § 1447(c) is permitted without a

finding of bad faith as long as the award is objectively justified.

See id. at 292 (“[T]he district court may award fees even if

removal is made in subjective good faith.”). If the district court

had ordered the award pursuant to FED. R. CIV. P. 11 or its inherent

powers, Appellants’ arguments may be more persuasive. Although it

may have been better practice to allow Appellants to respond to the

motion to remand, Appellants nonetheless had an opportunity to

state its basis for removal in their second notice of removal, and

also had an opportunity to advance its arguments in its petition

for a writ of mandamus and in this appeal. Cf. Ackerman v. FDIC,

973 F.2d 1221, 1225-26 (5th Cir. 1992) (noting that the opportunity

to be heard was satisfied on appeal). Moreover, § 1447(c) gives

notice that the district court “shall” remand an action for lack of

subject matter jurisdiction at any time. See Wisconsin Dep’t of

Corrections v. Schacht, 524 U.S. 381, 392 (1998); cf. Henderson v.

Dep’t of Pub. Safety and Corrections, 901 F.2d 1288, 1293-94 (5th

Cir. 1990) (discussing imputed notice of Rule 11).

Finally, the district court did not abuse its discretion in

awarding costs and fees because Appellants’ second removal was not

objectively reasonable in light of the facts of this action. The

district court had concluded in the first remand order that

Appellants failed to prove that Appellee’s claims were preempted by

the RLA and ADA. When Appellee filed his motion in limine in state

7 court, he merely alleged that the CBA precluded Appellants from

introducing a particular item of evidence to minimize their

damages. Such tangential reference to the CBA does not mean that

his claims were preempted by the RLA so as to support removal

jurisdiction in the district court. See Anderson v. American

Airlines, Inc., 2 F.3d 590, 596 (5th Cir. 1994) (holding that a

state-law retaliation claim is not preempted by the RLA simply

because it relies on the CBA to support its credibility); cf.

Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 257-58 (1994)

(“[S]ubstantive protections provided by state law, independent of

whatever labor agreement might govern, are not pre-empted under the

RLA.”).

III.

For the foregoing reasons, we conclude that we lack

jurisdiction under 28 U.S.C. § 1447(c) to review the remand order.

In addition, the district court’s finding of bad-faith removal is

VACATED. The remainder of the order imposing costs and expenses,

including attorney fees, under § 1447(c) is AFFIRMED. All pending

motions are DENIED AS MOOT.