The Clerk of Court is directed to amend the official caption as set forth above.… v. Aniqa Halal Live Poultry Corp. UNITED STATES COURT OF APPEALS 1 FOR THE SECOND…

* The Clerk of Court is directed to amend the official
caption as set forth above.
** The Honorable J. Garvan Murtha, of the United States
District Court for the District of Vermont, sitting by
designation.
10-66-cv
Calabro v. Aniqa Halal Live Poultry Corp.
UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2
August Term, 2010 3
(Submitted: January 28, 2011 Decided: June 10, 2011) 4
Docket No. 10-66-cv 5
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VINCENT CALABRO, 7
Plaintiff-Appellee, 8
- v - 9
ANIQA HALAL LIVE POULTRY CORP., 10
Defendant-Appellant.*
11
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Before: SACK and LIVINGSTON, Circuit Judges, and MURTHA, 13
Judge.**
14
Appeal from an order of remand to New York Supreme 15
Court, Queens County, and an award of attorney's fees and costs 16
pursuant to 28 U.S.C. § 1447(c) by the United States District 17
Court for the Eastern District of New York (John Gleeson, Judge). 18
Although we lack appellate jurisdiction to review the district 19
court's order remanding this case to state court, we write to 20
confirm that we do possess appellate jurisdiction to review the 21
district court's award of attorney's fees and costs. That review 22

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2
is for abuse of discretion. Applying these principles, we 1
affirm. 2
Leo G. Bevolas, Law Office of Kenneth M. 3
Mollins, P.C., Melville, New York, for 4
Plaintiff-Appellee. 5
Janelle Laverne Niles, The Law Office of 6
Janelle Niles, Esq., Brooklyn, New York, 7
for Defendant-Appellant. 8
PER CURIAM : 9
Defendant Aniqa Halal Live Poultry Corp. ("Aniqa") 10
appeals from an order of remand and award of attorney's fees and 11
costs pursuant to 28 U.S.C. § 1447(c) by the United States 12
District Court for the Eastern District of New York (John 13
Gleeson, Judge). We rehearse the facts only insofar as we think 14
it necessary to explain our resolution of the relatively narrow 15
issue presented to us here. 16
BACKGROUND 17
Plaintiff Vincent Calabro initiated this lawsuit in New 18
York Supreme Court, Queens County, in October 2009. Calabro, a 19
federal safety inspector employed by the United States Department 20
of Agriculture ("USDA"), alleges that Aniqa used photographs of 21
him for advertising purposes without his consent in violation of 22
New York State Civil Rights Law §§ 50 and 51. Aniqa answered and 23
filed a third-party complaint naming Calabro and the USDA as 24
third-party defendants and asserting claims against them under 25
the False Claims Act, 31 U.S.C. § 3729 et seq., and the Poultry 26
Products Inspection Act, 21 U.S.C. § 451 et seq. 27

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3 Section 1447(c) provides, in pertinent part, 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).
3
On November 9, 2009, Aniqa filed a notice of removal 1
asserting federal subject-matter jurisdiction on the basis of its 2
third-party claims, thereby removing this action to the United 3
States District Court for the Eastern District of New York. On 4
November 10, 2009, Calabro moved to remand the case to state 5
court. 6
By memorandum and order of December 15, 2009, the 7
district court (John Gleeson, Judge) granted that motion. Noting 8
that Aniqa's removal of the case was premised on federal-question 9
jurisdiction and that Calabro's complaint contained no federal 10
claim, the district court determined that it lacked subject- 11
matter jurisdiction over the case and therefore remanded the case 12
back to state court. See Calabro v. Aniqa Halal Live Poultry 13
Corp., No. 09-cv-4859, 2009 WL 4893200, 2009 U.S. Dist. LEXIS 14
116660 (E.D.N.Y. Dec. 15, 2009). Because the district court 15
further determined that Aniqa had "asserted no colorable bases 16
for federal jurisdiction," id. at *3, 2009 U.S. Dist. LEXIS 17
116660, at *8, the court also imposed an award of attorney's fees 18
and costs against Aniqa as permitted by 28 U.S.C. § 1447(c). 3 In 19
a subsequent order, the district court set the amount of the 20
award at $3,575. 21

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4
DISCUSSION 1
Aniqa argues that the district court erred in remanding 2
this case to state court. "An order remanding a case to the 3
State court from which it was removed is not reviewable on appeal 4
or otherwise." 28 U.S.C. § 1447(d). Although the Supreme Court 5
has interpreted section 1447(d) to "cover less than its words 6
alone suggest," Powerex Corp. v. Reliant Energy Servs., Inc., 551 7
U.S. 224, 229 (2007), it is well settled that section 1447(d) 8
deprives federal courts of appeals of jurisdiction to review 9
remand orders if the remand is based on a lack of subject-matter 10
jurisdiction. See, e.g., Kircher v. Putnam Funds Trust, 547 U.S. 11
633, 640 (2006); Things Remembered, Inc. v. Petrarca, 516 U.S. 12
124, 127-28 (1995). Because the district court's decision to 13
remand this case rested on its determination that it was without 14
subject-matter jurisdiction, we lack appellate jurisdiction to 15
review it. See, e.g., Price v. J & H Marsh & McLennan, Inc., 493 16
F.3d 55, 58-59 (2d Cir. 2007); In re WTC Disaster Site, 414 F.3d 17
352, 363-68 (2d Cir. 2005). To that extent, we must dismiss 18
Aniqa's appeal. 19
We do, however, possess appellate jurisdiction to 20
review the district court's award of attorney's fees and costs 21
pursuant to 28 U.S.C. § 1447(c). Although both the Supreme Court 22
and our Court have assumed that such appellate jurisdiction 23
exists, neither court has so concluded expressly. See, e.g., 24
Martin v. Franklin Capital Corp., 546 U.S. 132, 134 (2005); 25

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4 See Mints v. Educ. Testing Serv., 99 F.3d 1253, 1260 (3d
Cir. 1996); Hornbuckle v. State Farm Lloyds, 385 F.3d 538, 541
(5th Cir. 2004); Warthman v. Genoa Twp. Bd. of Trustees, 549 F.3d
1055, 1059 (6th Cir. 2008); Wisconsin v. Hotline Indus., Inc.,
236 F.3d 363, 365 (7th Cir. 2000); Stuart v. UNUM Life Ins. Co.
of Am., 217 F.3d 1145, 1148 (9th Cir. 2000); Topeka Hous. Auth.
v. Johnson, 404 F.3d 1245, 1248 (10th Cir. 2005); Legg v. Wyeth,
428 F.3d 1317, 1319-20 (11th Cir. 2005).
5
Bryant v. Britt, 420 F.3d 161, 163 (2d Cir. 2005) (per curiam); 1
Morgan Guar. Trust Co. of N.Y. v. Republic of Palau, 971 F.2d 2
917, 923-25 (2d Cir. 1992). Following the lead of at least seven 3
of our sister circuits, 4 we do so today. 4
Aniqa contends that the district court abused its 5
discretion in awarding attorney's fees and costs to Calabro. We 6
agree with Aniqa that our review of a district court's award of 7
attorney's fees and costs under section 1447(c) is for abuse of 8
discretion. See Bryant, 420 F.3d at 163 n.2; Morgan Guar. Trust 9
Co. of N.Y., 971 F.2d at 924. "A district court has abused its 10
discretion if it based its ruling on an erroneous view of the law 11
or on a clearly erroneous assessment of the evidence, or rendered 12
a decision that cannot be located within the range of permissible 13
decisions." In re Sims, 534 F.3d 117, 132 (2d Cir. 2008) 14
(brackets, citations, and internal quotation marks omitted). 15
In Martin v. Franklin Capital Corp., 546 U.S. 132 16
(2005), the Supreme Court instructed that "[a]bsent unusual 17
circumstances, courts may award attorney's fees under § 1447(c) 18
only where the removing party lacked an objectively reasonable 19
basis for seeking removal. Conversely, when an objectively 20
reasonable basis exists, fees should be denied." Id. at 141. 21

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5 Although our review of the record indicates that the
amount of the award was $3,575, Aniqa asserts that it was $4,500.
6
Although district courts retain the discretion to depart from 1
those rules in unusual circumstances, a court's "reasons for 2
departing from the general rule should be faithful to the 3
purposes of awarding fees under § 1447(c)." Id. (internal 4
quotation marks omitted); see also id. at 140 (discussing the 5
purposes of section 1447(c)). 6
Applying those principles, we affirm the district 7
court's award in this case. Under the well-pleaded-complaint 8
rule, "federal question jurisdiction exists only if [a] 9
plaintiff's statement of his own cause of action shows that it is 10
based on federal law." Romano v. Kazacos, 609 F.3d 512, 518 (2d 11
Cir. 2010) (internal quotation marks omitted). Moreover, it is 12
well established that a defendant may not evade this rule by 13
raising a federal question in its responsive pleadings and then 14
attempting to remove on that basis. See Holmes Grp., Inc. v. 15
Vornado Air Circulation Sys., Inc., 535 U.S. 826, 831-32 (2002). 16
The district court therefore did not abuse its discretion in 17
determining that Aniqa's purported basis for removal -- i.e., 18
that the presence of federal claims in its third-party complaint 19
rendered the entire action removable under 28 U.S.C. § 1441(c) -- 20
was objectively unreasonable. 21
Finally, we have been given no grounds upon which to 22
conclude that the relatively modest size of the award of 23
attorney's fees and costs was an abuse of discretion. 5
24

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See Appellant's Br. at 5; Appellant's Reply Br. at 12. Our
conclusion would be the same if the amount of the award were
indeed $4,500.
7
We have considered the remainder of Aniqa's arguments 1
on appeal and conclude that they are without merit or are not 2
properly before us. For the foregoing reasons, Aniqa's appeal is 3
dismissed in part, and the district court's judgment awarding 4
attorney's fees and costs is affirmed. 5

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