Fountain v. Bd Trst Biloxi Muni

1 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that this opinion should not be published and is not precedent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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-60814
Summary Calendar
STANTON J. FOUNTAIN, III, by and through his father
and next friend, STANTON J. FOUNTAIN, JR.,
Plaintiff-Appellee,
versus
BOARD OF TRUSTEES OF THE BILOXI
MUNICIPAL SEPARATE SCHOOL DISTRICT,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 1:99-CV-433-GR
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July 12, 2000
Before JONES, DUHÉ, and STEWART, Circuit Judges.
PER CURIAM:1
The defendant, Board of Trustees of the Biloxi Municipal
Separate School District (“Board”), noticed an appeal from an award
of attorney’s fees imposed sua sponte for the Board’s removal of
this case to federal court. The district court determined that the
plaintiff’s motion to remand should be granted and ordered the
Board’s attorneys - not the Board - to pay $1,200 in attorney’s
fees. The court did not state the legal basis for the award but
excluded Rule 11 so presumably relied on 28 U.S.C. § 1447(c).

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2
Only the party aggrieved has standing to appeal. In re Sims,
994 F.2d 210, 213 (5th Cir. 1993). As the party aggrieved by the
district court’s order, the Board’s attorneys, Adams & Reese, have
standing to appeal. But they have not; only the Board has.
Although Adams & Reese is not named as the appellant, the court has
jurisdiction to hear this appeal because there is only one order
appealed from and only one aggrieved party, so that it is
objectively clear from the notice of appeal that Adams & Reese is
appealing the fee order. Fed. R. App. P. 3(c)(4); Garcia v. Wash,
20 F.3d 608, 609 (5th Cir. 1994).
There is no automatic entitlement to attorney’s fees in a case
of improper removal. Valdes v. Wal-Mart Stores, Inc., 199 F.3d
290, 292 (5th Cir. 2000). A district court’s decision to award
attorney’s fees is reviewed for an abuse of discretion. Id. The
propriety of the defendant’s removal is central to the decision to
award fees, but the defendant’s motive for removing the case is not
relevant. Id. at 292-93; Miranti v. Lee, 3 F.3d 925, 928 (5th Cir.
1993). This court evaluates “the objective merits of removal at
the time of removal.” Valdes, 199 F.3d at 293, Miranti, 3 F.3d at
928. An award of attorney’s fees is not proper when the defendant
has “objectively reasonable grounds to believe the removal was
legally proper.” Valdes, 199 F.3d at 293; Miranti, 3 F.3d at 929.
The plaintiff’s complaint alleged violations of school
district rules, Mississippi law, and the U.S. Constitution, and
plaintiff claimed relief under 42 U.S.C. § 1983. The Board removed
the case pursuant to 28 U.S.C. § 1441(b), asserting federal-

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3
question jurisdiction under 28 U.S.C. § 1331 and supplemental
jurisdiction under 28 U.S.C. § 1367(a).
The federal district court had concurrent original
jurisdiction with the state court to hear the plaintiff’s federal
claims. Home Builders Ass’n of Miss. v. City of Madison, Miss.,
143 F.3d 1006, 1012, n.32 (5th Cir. 1998); Flores v. Edinburg
Consol. Indep. Sch. Dist., 741 F.2d 773, 777, n.5 (5th Cir. 1984).
This action was removable. 28 U.S.C. § 1441(a); City of Chicago v.
International College of Surgeons, 522 U.S. 156, 163 (1997);
Baldwin v. Sears, Roebuck & Co.. 667 F.2d 458, 459-60 (5th Cir.
1982). The district court also had supplemental jurisdiction over
Fountain’s state-law claims at the time of removal. 28 U.S.C. §
1367(a); City of Chicago, 522 U.S. at 164-66. Therefore, there was
an objectively reasonable basis for removal, hence the award was an
abuse of discretion.
The decision of the district court awarding attorney’s fees is
VACATED.

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