*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 circumstancesset forth in 5TH CIR.R. 47.5.4.

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IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-20478

Summary Calendar

FREDERICK P. WILLIAMS,

RACHEL D. WILLIAMS,

Plaintiffs-Appellees,

versus

RICE FOOD MARKETS INCORPORATED, doing business as 

Rice Epicurean Market; RICE PROPERTIES INCORPORATED;

KENT MILTON, in his capacity as Personnel Director, Rice Food 

Markets Incorporated,

Defendants-Appellants.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. H-97-CV-4208

July 22, 1999

Before POLITZ, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

Rice Food Markets andRice Properties(collectively, the “Appellant”) appeal three ordersthe

district court has issued in this case. For the reasons that follow, we affirm.

The first order, entered on February 20, 1998, granted Frederick P. Williams and Rachel D.

Williams’s (collectively, the “Appellee”) motion to remand and sanctioned the Appellants in 

the amount of $2,500.00 after finding that the removal was improper and sought for the purpose of

delay. On March 5, 1998, the district court entered a second order clarifying that the removal of the

Appellees’ case from state court violated Rule 11(b)(1) of the Fed. R. Civ. P. and explained that the
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amount sanctioned equaled the Appellee’s attorneys’ fees associated with the improper removal. In

a third order, entered on April 27, 1998, the district court denied the Appellants’ motion for

reconsideration of the two previous orders.

This court does not have jurisdiction to hear either the February 20, 1998 order or the March

5, 1998 order. Under Federal Rule of Appellate Procedure 4, 

A party intending to challenge an order disposing of any motion listed in Rule 4(a)(4)(A), or

a judgment altered or amended upon such a motion, must file a notice of appeal . . . within

[thirty days] measured from the entry of the order disposing of the last such remaining

motion.

FED. R. APP. P. 4(a)(4)(B)(ii). Inasmuch as the March 5, 1998 order clarified the February 20, 1998

order, we find that the district court properly entered the later judgment pursuant to Fed.R. Civ. P.

60(b). Accordingly, the Appellants had thirty days to appeal the March 5, 1998 order. See id. The

Appellants did not file their notice of appeal until May 20, 1998; therefore, it is untimely and we are

without jurisdiction to adjudicate an appeal from those orders.

The April27, 1998 order denying Appellants’motion for reconsiderationwastimelyappealed

to this court. We review the district court’s denial of a motion for reconsideration for abuse of

discretion. See Edward H. Bohlin Co. v. Banning Co., 6 F.3d 350, 353 (5th Cir. 1993); Teal v. Eagle

Fleet Inc., 933 F.2d 341, 347 (5th Cir. 1991). We concede that by reaching the merits of the appeal

fromthe April 27, 1998 order, we implicitly reach the very issuesraised in the February 20, 1998 and

March 5, 1998 orders. Nevertheless, we are unable to say that the district court abused its discretion

in denying the motion for reconsideration. The focus of Appellants’ appeal centers on the award of

attorney fees for improperly removing the case to federal court. 

The question we face is whether the district court erred in awarding attorney fees and costs

under 28 U.S.C. § 1447(c). We start with the text of the statute itself. Section 1447(c) provides:

A motion to remand the case on the basis of any defect other than lack of subject matter

jurisdictionmust be made within 30 days after the filing ofthe notice ofremovalundersection

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 removal.
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28 U.S.C.A § 1447(c) (West 1998)(emphasis added). According to the House Report, § 1447(c)

“will ensure that a substantive basis exists for requiring payment of actual expenses incurred in

resisting improper removal.” H.R.Rep. No. 100-889, reprinted in 1988 U.S.C.A.N. 6033.

In Miranti v. Lee, 3 F.3d 925, 928 (5th Cir. 1993), this court recognized that nothing in 28

U.S.C.A. § 1447 (c) indicates how a court is to exercise its discretion in deciding whether to award

costs and expenses. Nevertheless, the propriety of the defendant’s action in removing the action is

central to the determination of whether fees are awarded. Miranti, 3 F.3d at 928. We applied this

principle in Avitts v. Amoco Production Co., 111 F.3d 30 (5th Cir. 1997). There, we held that the

court’s discretion to award attorney’s fees pursuant to § 1447 (c) is triggered only if the court first

findsthat the defendant’s decision to remove wasimproper. Id. at 32 (citing Miranti, 3 F.3d at 928).

We determine the propriety of removal by considering the complaint at the time the petition for

removal was filed. See id.

In Avitts, we interpreted § 1447(c) as permitting an award of costs incurred in federal court

that would not have been incurred had the case remained in state court. Id. However, “[a]n award

of costs has never been predicated on a finding of bad faith or negligent or frivolous removal.”

Miranti, 3 F.3d at 928 (citing News-Texan, Inc. v. City of Garland, 814 F.2d 216, 220 (5th Cir. 1987)

and Bucary v. Rothrock, 883 F.2d 447, 449 (5th Cir. 1989)). With this framework in mind, we turn

to the merits of this appeal. 

We affirm the district court’s denial of the motion for reconsideration because the district

court’s award of attorneys’fees was proper under 28 U.S.C. § 1447(c). The district court found that

the Appellants had improperly removed the case to federal court. The district court supported its

finding with a discussion of the facts and the relevant case law. The Appellants have failed to

demonstrate any abuse of discretion on the part of the district court. We are likewise unable to find

an abuse of discretion based on our review of the record. 

AFFIRMED.