*

The Honorable Harold A. Ackerman, United States District Judge for the District of New Jersey, sitting by

designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 05a0210p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

WILLIAM BARTHOLOMEW,

Plaintiff-Appellant,

v.

TOWN OF COLLIERVILLE, TENNESSEE et al.,

Defendants-Appellees.

X

-

-

-

-

>

,

-

-

N

No. 04-5501

Appeal from the United States District Court

for the Western District of Tennessee at Memphis.

No. 03-02609—Samuel H. Mays, Jr., District Judge.

Submitted: April 20, 2005

Decided and Filed: May 9, 2005 

Before: SUHRHEINRICH and GILMAN, Circuit Judges; ACKERMAN, District Judge.*

_________________

COUNSEL

ON BRIEF: Julie C. Bartholomew, Somerville, Tennessee, for Appellant. Edward J. McKenney,

Jr., HARRIS, SHELTON, HANOVER & WALSH, Memphis, Tennessee, for Appellee.

_________________

OPINION _________________

RONALD LEE GILMAN, Circuit Judge. In December of 2000, William Bartholomew

brought an action in state court challenging a zoning ordinance enacted by the Town of Collierville,

Tennessee. He sought damages under state-law theories from the municipality, as well as from

individual town officials. Bartholomew twice amended his complaint to include federal claims. The

defendants (collectively “Collierville”) filed a Petition for Removal of the case from state court to

the United States District Court for the Western District of Tennessee after the second amendment.

Collierville’s petition was denied by the district court and the case was remanded to the state

court. Bartholomew then moved under 28 U.S.C. § 1447(c) for an award of attorney fees and

expenses incurred as a result of the petition. The sole question raised in this appeal is whether the

district court’s denial of Bartholomew’s motion constitutes reversible error. For the reasons set forth

below, we AFFIRM the judgment of the district court.

1
No. 04-5501 Bartholomew v. Town of Collierville, Tenn. Page 2

I. BACKGROUND

A. Underlying lawsuit

Bartholomew’s original complaint, which was filed in December of 2000 in the Chancery

Court of Tennessee, sought a declaratory judgment barring the enforcement of a Collierville zoning

ordinance on the basis that the city had enacted and applied the ordinance in an arbitrary manner.

The complaint also requested monetary damages from the municipality and from several town

officials for interference with Bartholomew’s business relationships. Collierville filed a motion in

January of 2001 to dismiss the complaint, but included numerous affirmative defenses in its motion.

Bartholomew responded by amending his complaint to assert that the enactment of the ordinace

constituted a “taking” in violation of the Tennessee and United States Constitutions. This first

amended complaint was filed in January of 2001 without leave of court. The success of

Collierville’s future Petition for Removal turned on whether Bartholomew was required to obtain

leave of the Chancery Court before filing his amendment.

The case was transferred to the Tennessee Circuit Court in July of 2001. In November of

2002, the Circuit Court dismissed the two counts of Bartholomew’s complaint that sought tort

damages against the individual defendants.

Bartholomew then filed a motion to further amend his complaint in February of 2003. This

motion sought to add claims under 42 U.S.C. § 1983 against the individual defendants named in the

counts that the Circuit Court had dismissed in November of 2002. In June of 2003, the Circuit Court

granted the motion, and Bartholomew’s second amended complaint was filed on July 16, 2003. 

B. Petition for Removal

Within 30 days from its receipt of the second amended complaint, Collierville petitioned to

remove the case to federal court and, shortly thereafter, Bartholomew filed a motion to remand. The

district court held that the Petition for Removal to federal court was untimely because the 30-day

time limit for such a petition began to run from the service of Bartholomew’s first amended

complaint in January of 2001. For that reason, it granted Bartholomew’s motion to remand the case

to the Tennessee Circuit Court.

C. Attorney fees and expenses

After the case was remanded, Bartholomew moved under 28 U.S.C. § 1447(c) for an award

of attorney fees and expenses incurred in opposing Collierville’s unsuccessful attempt to remove

the case. The district court, however, held that Collierville’s attempted removal of the case “was

fairly supportable” because

[Collierville] argued that [Bartholomew] should not have filed an amended complaint

three years ago without leave of the state court because [Collierville] had already

filed a responsive pleading. That ‘pleading’ was in fact labeled a motion to dismiss

by [Collierville]. [Collierville] provided citations to Tennessee case law that, while

inapposite to the instant case, did indicate that, in other situations, Tennessee courts

have been willing to view a document labeled a motion to dismiss as a pleading.

Thus, [Collierville’s] argument was not wholly lacking in merit.

The district court therefore denied Bartholomew’s motion for attorney fees and expenses. This

timely appeal followed.
No. 04-5501 Bartholomew v. Town of Collierville, Tenn. Page 3

II. ANALYSIS 

A. Standard of review

1. Abuse-of-discretion standard

This court’s rule that “the award of attorney fees for trial work is within the sound discretion

of the district court,” Wrenn v. Gould, 808 F.2d 493, 504 (6th Cir. 1987), also applies to motions for

attorney fees under 28 U.S.C. § 1447(c). See Ahearn v. Charter Township of Bloomfield, No. 97-

1187, 1998 WL 384558, at *2 (6th Cir. June 18, 1998) (unpublished) (“We review for abuse of

discretion a district court’s decision on whether to award attorney fees under 28 U.S.C. § 1447(c).”);

Morris v. Bridgestone/Firestone, Inc., 985 F.2d 238, 240 (6th Cir. 1993) (“The district court’s

discretion under § 1447(c) was significantly expanded when the section was amended in 1988.”).

An abuse of discretion occurs where “[a] district court . . . relies on clearly erroneous

findings of fact, or when it improperly applies the law or uses an erroneous legal standard.”

Christian Schmidt Brewing Co. v. G. Heileman Brewing Co., 753 F.2d 1354, 1356 (6th Cir. 1985)

(citation omitted). “[A] reviewing court cannot overturn a district court solely because it would have

made a different decision under the circumstances.” CSX Transp., Inc. v. Tenn. State Bd. of

Equalization, 964 F.2d 548, 556 (6th Cir. 1992).

2. Bartholomew’s “presumption” argument

Bartholomew directs our attention to the case of Garbie v. DaimlerChrysler Corp., 211 F.3d

407, 411 (7th Cir. 2000), where the Seventh Circuit held that the prevailing party in a § 1447(c)

proceeding is presumptively entitled to attorney fees. Although this appears to be good law in the

Seventh Circuit, no Sixth Circuit opinion has read such a presumption into § 1447(c), nor do we.

As noted in Morris, the Sixth Circuit has read the 1988 change from a punitive to a fee-shifting

statute to “significantly expand[]” the discretion of the district courts, not to narrow it. Morris, 985

F.2d at 240. 

B. Denial of the motion for attorney fees and expenses

The present version of 28 U.S.C. § 1447(c) provides that

[a] motion to remand the case on the basis of any 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. An

order remanding the case may require payment of just costs and any actual expenses,

including attorney fees, incurred as a result of the removal . . . .

Before the 1988 amendment, § 1447(c) used the following, more restrictive language: “If at any

time before final judgment it appears that the case was removed improvidently and without

jurisdiction, the district court shall remand the case, and may order the payment of just costs.”

Pub.L. 88-352, Title IX § 901, 78 Stat. 266 (current version at 28 U.S.C. § 1447(c)). The present

version of § 1447(c) thus allows the district court to award, or to deny, fees in a broader range of

circumstances than the pre-1988 statute. Morris, 985 F.2d at 240.

As this court noted in Ahearn, most § 1447(c) attorney-fee cases involve decisions by the

district court to award fees, rather than to deny them. 1998 WL 384558, at *2. Those cases,

however, “focus on the objective ‘propriety’ of the removal attempt and set forth the following

standard: an award of costs, including attorney fees, is inappropriate where the defendant’s attempt

to remove the action was ‘fairly supportable,’ or where there has not been at least some finding of
No. 04-5501 Bartholomew v. Town of Collierville, Tenn. Page 4

fault with the defendant’s decision to remove.” Id. (citations omitted) (emphasis in original). When

the district court denies attorney fees, it “abuses its discretion by refusing to award fees where the

defendant’s argument for removal was devoid of even fair support.” Id.

1. Federal question jurisdiction

The propriety of removal in nondiversity cases “turns on whether the case falls within the

original ‘federal question’ jurisdiction of the United States district courts: ‘The district courts shall

have jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United

States.’” Franchise Tax Bd. of State of Cal. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 8

(1983) (quoting 28 U.S.C. § 1331 (conferring federal question jurisdiction)). Neither party disputes

that the present civil action under 42 U.S.C. § 1983 “aris[es] under the . . . Constitution [and] laws

. . . of the United States.”

2. Timeliness issue

a. Timeliness and the Tennessee definition of a responsive pleading

Bartholomew’s original complaint was based solely on state-law claims, and was thus not

removable. It became removable under the following standard set forth in 28 U.S.C. § 1446(b):

If the case stated by the initial pleading is not removable, a notice of removal may

be filed within thirty days after receipt by the defendant, through service or

otherwise, of a copy of an amended pleading, motion, order or other paper from

which it may first be ascertained that the case is one which is or has become

removable . . . .

Whether an amended pleading filed in a Tennessee state-court proceeding will be recognized as

valid is a question of state law, see Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938), and is

addressed by the following language contained in Rule 15.01 of the Tennessee Rules of Civil

Procedure: “A party may amend the party’s pleadings once as a matter of course at any time before

a responsive pleading is served . . . . Otherwise a party may amend the party’s pleadings only by

written consent of the adverse party or by leave of court . . . .”

If Collierville’s motion to dismiss, which listed 25 affirmative defenses, had been deemed

a responsive pleading under Tennessee law, then Bartholomew would have had no right to file his

January 2001 amendment without leave of court. This would have meant that the January 2001

amendment was ineffective. See Pierce v. Corr. Corp. of Am., W2001-00595-COA-R3-CV, 2001

WL 1683792, at *1 (Tenn. Ct. App. Dec. 20, 2001) (unpublished) (refusing to consider an

amendment filed without leave of court). Collierville’s petition for removal would thus have been

timely, because it was filed less than thirty days after Collierville received Bartholomew’s courtauthorized second amended complaint in July of 2003. If, on the other hand, the district court was

correct in finding that the motion to dismiss was not a “responsive pleading” under Tennessee law,

then Collierville’s petition was untimely.

b. Whether Collierville’s position was fairly supportable under Tennessee law

Although neither party disputes that Collierville has cited a number of Tennessee cases

construing Rule 15.01, Bartholomew argues that the Tennessee Supreme Court’s decision in Adams

v. Carter County Memorial Hospital, 548 S.W.2d 307, 309 (Tenn. 1977), is so obviously dispositive

that Collierville’s Petition for Removal was not fairly supportable. The Adams court reversed the

trial court’s refusal to recognize the effectiveness of the plaintiff’s amendment after the defendants

had filed a motion to dismiss, holding that “the plaintiff clearly had the right to amend without leave
No. 04-5501 Bartholomew v. Town of Collierville, Tenn. Page 5

of court since no responsive pleading to the complaint had been served. A motion is not such a

responsive pleading.” Id.

Collierville, however, points out that the document it filed with the state court was not a

simple motion to dismiss, because the document listed numerous affirmative defenses. The

defendants thus asked that the district court “give effect to the substance of the document they

entitled a motion to dismiss, rather than to the form and terminology of the document.” Although

the district court was not ultimately persuaded, Collierville cited several Tennessee cases to support

its position, including a Tennessee Supreme Court case decided after Adams that acknowledges the

possibility that a motion to dismiss, combined with an answer, may be deemed a responsive

pleading. See Hale v. Commercial Union of Assurance Cos., 637 S.W.2d 865, 866 (Tenn. 1982)

(“Defendant’s responsive pleading was a combined motion to dismiss and answer.”)

This case, and others cited by Collierville, have construed a motion to dismiss, under certain

circumstances, as a responsive pleading. See Hale, 637 S.W.2d at 866; Usrey v. Lewis, 553 S.W.2d

612, 614 (Tenn. Ct. App. 1977) (construing a “Motion to Dismiss on Plea of Res Adjudicata [sic]”

as “an answer presenting the affirmative defense of res judicata and a motion for summary judgment

for defendant”).

Based on the above cases, Collierville’s responsive-pleading argument was not “devoid of

even fair support.” Ahearn v. Charter Township of Bloomfield, No. 97-1187, 1998 WL 384558, at

*2 (6th Cir. June 18, 1998) (unpublished). We therefore hold that the district court did not abuse

its discretion in denying Bartholomew’s motion for attorney fees and expenses.

III. CONCLUSION

For all of the reasons set forth above, we AFFIRM the judgment of the district court.