Yount v. Lafayette Ins Co

United States Court of Appeals
Fifth Circuit
F I L E D
July 9, 2007
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 06-31297
Summary Calendar
_______________
DR. BEVERLY B. YOUNT, M.D., A.P.M.C.,
Plaintiff-Appellant,
VERSUS
LAFAYETTE INSURANCE COMPANY,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
m 2:06-CV-7382
______________________________
Before SMITH, WIENER, and OWEN,
Circuit Judges.
PER CURIAM:*
Beverly Yount successfully moved to re-
mand her case against Lafayette Insurance
Company (“Lafayette”) to state court; she ap-
peals the denial of attorney’s fees. Finding no
abuse of discretion, we affirm.
I.
Yount’s office complex was damaged by * 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
circumstances set forth in 5TH CIR. R. 47.5.4. *(...continued)

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Hurricane Katrina, and she sued Lafayette in
state court to recover insurance proceeds al-
legedly due under the business interruption
provisions of her policy. Lafayette removed
to federal district court, arguing that jurisdic-
tion was proper pursuant to the Multiparty,
Multiforum Trial Jurisdiction Act, 28 U.S.C.
§ 1369. That court granted Yount’s motion to
remand, finding that Hurricane Katrina was
not an “accident” for purposes of § 1369.
Yount requested attorney’s fees on the ground
that Lafayette’s removal had been untimely
and in bad faith.
II.
We review the denial of a request for attor-
ney’s fees for abuse of discretion. Avitts v.
Amoco Prod. Co., 111 F.3d 30, 32 (5th Cir.
1997). “Absent unusual circumstances, courts
may award attorney’s fees under [28 U.S.C.]
§ 1447(c) only where the removing party
lacked an objectivelyreasonable basis for seek-
ing removal. Conversely, when an objectively
reasonable basis exists, fees should be denied.”
Martin v. Franklin Capital Corp., 546 U.S.
132, 141 (2005) (citing Hornbuckle v. State
Farm Lloyds, 385 F.3d 538, 541 (5th Cir.
2004); Valdes v. Wal-Mart Stores, Inc., 199
F.3d 290, 293 (5th Cir. 2000)). We do not
consider Lafayette’s motive in removing; we
look only to whether it had an objectively
reasonable basis for the removal. Valdes, 199
F.3d at 292.
Yount claims there is no objectively rea-
sonable basis on which Lafayette’s motion to
remove could be considered timely. Lafayette
alleged in its notice of removal that it was also
a defendant in another case pending in the
Eastern District of Louisiana, Abadie v. Aegis
Sec. Ins. Co., that arose out of Hurricane Ka-
trina and that could have been brought pursu-
ant to § 1369. Lafayette based its motion to
remove on 28 U.S.C. § 1441(e)(1)(B), which
provides for removal if
the defendant is a party to an action which
is or could have been brought, in whole or
in part, under section 1369 in a United
States district court and arises from the
same accident as the action in State court,
even if the action to be removed could not
have been brought in a district court as an
original matter.
Lafayette claimed that Abadie could have
been brought pursuant to § 1369 and that it
arose out of the same accident (Hurricane Ka-
trina) as Yount’s lawsuit, so removal was ap-
propriate. In her request for attorney’s fees
Yount pointed to the time limit provision of
§ 1441(e)(1), which states that
a notice of removal may also be filed before
trial of the action in State court within 30
days after the date on which the defendant
first becomes a party to an action under
section 1369 in a United States district
court that arises from the same accident as
the action in State court, or at a later time
with leave of the district court.
It is not disputed that Lafayette’s removal
claim was within this time frame in reference
to Abadie. Yount alleges, however, that ap-
proximately three months earlier Lafayette had
been named as a defendant in another suit aris-
ing out of Hurricane Katrina that could have
been brought under § 1369, Berthelot v. Boh
Bros. Constr. Co., L.L.C. Yount’s suit was
pending at the time that Lafayette was a defen-
dant in Berthelot, and thus she claims that the
thirty-day time period during which Lafayette
could remove her suit pursuant to § 1441-
(e)(1) had expired at the time that Lafayette
removed and that there was no objectively
reasonable basis for asserting that the removal
was timely.

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Our review turns entirely on an objective
consideration of the merits of Lafayette’s case
at the time of removal. Valdes, 199 F.3d at
292. The question is the interpretation of the
limitations period of § 1441(e)(1) if the defen-
dant has been named in multiple § 1369 suits.
Both parties concede that no court has ad-
dressed this issue.
Lafayette correctly points out that under
the language of the statute, viewed in isolation,
its removal was timelySSit removed within
thirty days of first becoming a defendant in
Abadie, which could have been brought under
§ 1369. Yount points to the word “first,”
arguing that the thirty-day limitation period
was tied to Berthelot, the first of the two
§ 1369 cases at issue, and that it would make
no sense to permit the limitations period to
start anew if a second § 1369 suit is brought
against a defendant after the initial limitations
period has expired. We need not, and do not,
express an opinion about which of these inter-
pretations is correct except to say that Lafay-
ette could conclude from the language of the
statute that its position was reasonable, espe-
cially in light of the lack of any judicial prece-
dent. Thus, the district court did not abuse its
discretion.
AFFIRMED.

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