FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

AUGUST 16, 2010

JOHN LEY

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 09-16053

Non-Argument Calendar

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D. C. Docket No. 09-01549-CV-T-30-EAJ

STEPHEN T. RAE,

d.b.a. Newtwork Professionals,

Plaintiff

Counter Defendant

Appellee,

versus

GREGORY PERRY,

Defendant

Counter Claimant

Appellant,

LIVEAMMO CORPORATION

a Delaware corporation,

Defendant.

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Appeal from the United States District Court

for the Middle District of Florida

_________________________

(August 16, 2010)
Before BARKETT, HULL and ANDERSON, Circuit Judges.

PER CURIAM:

Gregory Perry appeals the district court’s order entering judgment against

him for attorneys’ fees after finding that Perry lacked an objectively reasonable

basis for removal, pursuant to 28 U.S.C. § 1447(c) . On appeal, Perry argues that

the district court erred in determining that the amount in controversy did not

exceed $75,000 based on all of the evidence in the record. Perry further argues

that Rae’s attorneys’ fees in the state court proceedings alone were sufficient to

meet the amount in controversy requirement. Perry also argues that the district

court violated his due process rights when it entered a judgment for attorneys’ fees

against him before the 10-day time period for response proscribed by the district

court had expired.

As a general rule, we will not review a district court’s order remanding a

case back to state court. Sammie Bonner Constr. Co., Inc. v. Western Star Trucks

Sales, Inc., 330 F.3d 1308, 1311 (11th Cir. 2003). However, we may review the

merits of a remand order in considering whether the district court abused its

discretion in awarding attorneys’ fees and costs under 28 U.S.C. § 1447(c). Legg

v. Wyeth, 428 F.3d 1317, 1319 (11th Cir. 2005). Section 1447(c) provides that,

“[a]n order remanding the case may require payment of just costs and any actual

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expenses, including attorney fees, incurred as a result of the removal.” 28 U.S.C.

§ 1447(c). A district court has discretion to award attorneys’ fees under § 1447(c)

“only where the removing party lacked an objectively reasonable basis for seeking

removal.” Martin v. Franklin Capital Corp., 546 U.S. 132, 141, 126 S.Ct. 704,

711, 126 S.Ct. 704 (2005).

A civil case commenced in state court may generally be removed by the

defendant to federal district court if the case could have been brought there

originally. Martin, 546 U.S. at 134, 126 S.Ct. at 707. However, the case must be

remanded to state court if it appears that the federal court lacks jurisdiction. Id. In

evaluating a motion to remand, the removing party bears the burden of

demonstrating federal jurisdiction. Rolling Greens MHP, L.P. v. Comcast SCH

Holdings, L.L.C., 374 F.3d 1020, 1022 (11th Cir. 2004). In assessing whether

removal was proper, the district court considers “only the limited universe of

evidence available when the motion to remand is filed -i.e., the notice of removal

and accompanying documents[, and] if that evidence is insufficient to establish that

removal was proper or that jurisdiction was present, neither the defendants nor the

court may speculate in an attempt to make up for the notice’s failings.” Lowery v.

Ala. Power Co., 483 F.3d 1184, 1213-15 (11th Cir. 2007), cert. denied, 128 S.Ct.

2877 (2008).

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Where the basis for removing a case to federal court is diversity jurisdiction,

the removing party must establish that the amount in controversy exceeds $75,000,

exclusive of interest and costs. 28 U.S.C. § 1332(a). “Generally, it must appear to

a legal certainty that the claim is really for less than the jurisdictional amount to

justify” remand. Federated Mutual Ins. Co. v. McKinnon Motors, L.L.C., 329 F.3d

805, 807 (11th Cir. 2003) (internal quotations omitted). Where jurisdictional

damages are unspecified in the complaint, however, the removing party bears the

burden of establishing the jurisdictional amount by a preponderance of the

evidence. Williams v. Best Buy Co., 269 F.3d 1316, 1319 (11th Cir. 2001).

Punitive damages must be considered when determining the jurisdictional amount

in controversy in diversity cases. Holley Equip. Co. v. Credit Alliance Corp., 821

F.2d 1531, 1535 (11th Cir. 1987). By contrast, attorneys’ fees should not be

considered when determining the jurisdictional amount in controversy unless they

are allowed for by statute or by contract. Federated Mutual, 329 F.3d at 808 n.4

(citing Graham v. Henegar, 640 F.2d 732, 736 (5th Cir. 1981)). If the

jurisdictional amount is neither stated clearly on the face of the documents before

the court, nor readily deducible from them, the district court lacks jurisdiction and

must remand to state court. Lowery, 483 F.3d at 1210-11, 1219.

District courts enjoy broad discretion in deciding how best to manage the

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cases before them. Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1366 (11th

Cir. 1997). District courts have managerial power to set and enforce deadlines to

maintain control over their dockets. Young v. City of Palm Bay, 358 F.3d 859, 864

(11th Cir. 2004). Nonetheless, when a litigant’s rights are materially prejudiced by

the district court’s exercise of discretion, we must redress a district court’s

mismanagement of a case. Chudasama, 123 F.3d at 1367. By contrast, pursuant to

the harmless error rule, we will not reverse a lower court for errors and defects that

do not affect a party’s substantial rights. Fed.R.Civ.P. 61.

The district court did not abuse its discretion in determining that Perry

lacked an objectively reasonable basis for removal and thus in assessing Perry with

attorneys’ fees pursuant to 28 U.S.C. § 1447(c). Viewed objectively, the complaint

and supporting documentation filed with the notice of removal indicate that Rae

sought $20,000 in compensatory damages on all counts together. Perry failed to

present evidence that showed by a preponderance of the evidence that the

compensatory and unspecified damages in the complaint, including punitive

damages and attorneys’ fees, alone or combined, met the jurisdictional amount.

Perry’s calculations were based on his own speculation, and therefore, were not

objectively reasonable.

Although the district court did err in entering premature judgment against

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Perry, Perry has failed to show that his rights were materially prejudiced by the

error. Accordingly, the district court’s judgment against Perry for Rae’s

reasonable attorneys’ fees is affirmed.

AFFIRMED.

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Perry’s motion to stay is denied, as is his request for oral argument. 1

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