Lee v. Adv Fresh Concepts

United States Court of Appeals
Fifth Circuit
F I L E D
August 29, 2003
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
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.
PER CURIAM:*
Kwei Lee appeals the denial of her motion
for attorney’s fees she sought for er removal.
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.

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Lee sued Advanced Fresh Concepts Corpo-
ration (“AFC”) for breach of contract in Loui-
siana city court, which has jurisdiction over
controversies involving less than $20,000. Af-
ter discovery, Lee concluded that her damages
approached $200,000. In September 2002,
she sent a demand letter to AFC offering to
settle for $100,000. She also wrote that if
AFC did not settle, she would transfer the case
to state district court, which has general juris-
diction. When AFC did not respond, Lee sent
a follow-up letter in October, then transferred
the case in early December. Three weeks
later, AFC removed to federal district court
based on diversity of citizenship.
Lee moved to remand. The original com-
plaint, necessarily limited to $20,000, did not
satisfy the $75,000 amount-in-controversy re-
quirement. 28 U.S.C. § 1332(a). Thus, “the
case stated by the initial pleading [was] not
removable.” 28 U.S.C. § 1446(b). But, “a
notice of removal may be filed within thirty
days after receipt by the defendant . . . of other
paper from which it may first be ascertained
that the case . . . has become removable.” Id.
“[A] post-complaint letter, which is not plainly
a sham, may be ‘other paper’ under § 1446-
(b).” Addo v. Globe Life & Accident Ins. Co.,
230 F.3d 759, 762 (5th Cir. 2000) (footnote
omitted). The court therefore held that the
case became removable when Lee sent the de-
mand letter, but the court remanded because
AFC’s removal three months later was un-
timely.
Lee then moved for attorney’s fees. The
court denied the motion, concluding that
AFC’s “removal rest[ed] on a colorable claim
regarding the state of the facts and the law.”
Lee appeals that order but not the remand
order.
Where a court remands, “[t]here is no auto-
matic entitlement to an award of attorney’s
fees. Indeed, the clear language of the statute
makes such an award discretionary.” Valdes,
199 F.3d at 292. A court should not award
fees when “the defendant had objectively rea-
sonable grounds to believe the removal was
legally proper” at the time of removal. Id. at
293.
The district court could have concluded
that the removal lacked objectively reasonable
grounds. This case is nearly indistinguishable
from Addo, 230 F.3d at 762, in which we held
that the plaintiff’s post-complaint demand let-
ter was “other paper” and that the defendant
did not timely remove within thirty days of re-
ceiving the letter. If anything, Lee’s detailed
and very reasonable three-page demand letter
presented a stronger basis for removal than did
the letter in Addo, which contained two sen-
tences and demanded fifty times the defen-
dant’s offered settlement. Id. at 760 n.1.
AFC tries and fails to distinguish Addo by
asserting that Addo did not begin in a state
court of limited jurisdiction. That may or may
not be trueSSthe Addo opinion does not spec-
ifySSbut we cannot see what difference it
makes. Lee stated in the letter that she in-
tended to transfer the case unless it was set-
tled. Moreover, she sent the follow-up letter
within the original thirty-day window.
AFC also complains of being put between
the rock of a premature removal and the hard
place of an untimely removal. We do not sym-
pathize. Our caselaw permits removal based
on “other paper” even without a formally
amended complaint,1 just as it protects defen-
1 See, e.g., S.W.S. Erectors v. Infax, Inc., 72
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dants from a fee award where the plaintiff is
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.
AFFIRMED.
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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).

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