1Pursuant 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this opinion should not be published and is not precedent except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 circumstances set forth in 5TH CIR. R. 47.5.4.

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UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 98-60385

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SAMMY G. MILNER, Individually and Executor of the Estate of

EMOGENE LOFTON MILNER, Deceased, and of SAM IRVIN MILNER, JR.,

Deceased, and STEVE L. MILNER,

 Plaintiffs-Appellants,

v.

GENERAL MOTORS CORPORATION,

 

 Defendant-Appellee.

__________________________________________

Appeal from the United States District Court 

for the Southern District of Mississippi

(3:97-cv-164)

__________________________________________

August 26, 1999

Before REYNALDO G. GARZA, HIGGINBOTHAM, and DAVIS, Circuit

Judges.

PER CURIAM1:

Sammy and Steven Milner (“the Milners”) appeal the district

court’s denial of costs and attorney’s fees resulting from

General Motors Corporation’s (“GM”) removal of the case to

federal court. The Milners argue that the district court abused

its discretion by remanding the case to state court without

awarding the expenses resulting from GM’s improper removal. We 

find that the district court did not abuse its discretion by

denying the Milners’ request and affirm the lower court’s
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decision.

I.

Sam and Emogene Milner were killed on September 1, 1993,

when their 1986 Chevrolet pickup truck was involved in a head-on

collision with an automobile driven by Edna Pearl Quinn

(“Quinn”). Quinn was also killed in the accident. The Milners’

two sons, Sammy and Steven, brought suit against the Quinn Estate

and GM in the Circuit Court of Leake County, Mississippi. The

complaint alleges negligence against Quinn in the operation of

her automobile and strict liability against GM for a postcollision fire which was allegedly caused by a defective fuel

system in Sam and Emogene Milner’s GM pickup truck. The Milners

seek $10,000,000.00 in compensatory damages and $20,000,000.00 in

punitive damages.

In March of 1997, GM removed the case to federal court,

alleging that the Milners had deliberately named the Quinn Estate

a party to the suit for the sole purpose of destroying complete

diversity. GM argues that as of August 22, 1996, the day the

complaint was filed, no further action had been taken against the

Quinn Estate. GM asserts that, although the Quinn Estate never

answered the complaint, the Milners made no attempt to secure a

default judgment against it. GM states that the Milners’

inaction towards the Quinn Estate constitutes abandonment for

purposes of removal and that these assertions are evidenced by a

letter that was sent by the Milners to the Quinn Estate’s
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attorney. 

The district court found the letter insufficient to show

that the Milners had abandoned their claim against the Quinn

Estate. The district court explained that the letter merely

states that the Milners did not intend to pursue a default

judgment “at this time.” The district court emphasized: “The

author of the letter acknowledges that the plaintiffs may pursue

the default judgment at a later date and requests they notify him

in that event.” The court juxtaposed GM’s failure to produce any

document against the Milners with the Milners’ sworn affidavits

avowing that they have not abandoned their claims. The court

granted the motion to remand and declined the Milners’ request

for costs and attorney’s fees. This appeal followed.

II.

The sole issue on appeal is whether the district court erred

by denying the Milners’ request for attorney’s fees and costs

under 28 U.S.C. § 1447(c). Since the award of attorney’s fees is

collateral to the decision to remand, the district court retained

jurisdiction after remand to entertain the Milners’ motion for

attorney’s fees and costs. See Miranti v. Lee, 3 F.3d 925, 928

(5th Cir. 1993); Moore v. Permanente Medical Group, Inc., 981

F.2d 443, 448 (9th Cir. 1992). We review the district court’s

denial of attorney’s fees, expenses and costs for abuse of

discretion. Avitts v. Amoco Production Co., 111 F.3d 30, 32 (5th

Cir.), cert. denied, 118 S.Ct. 435 (1997). A district court
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abuses its discretion if it bases its decision on an erroneous

view of the law or on a clearly erroneous assessment of the

evidence. Esmark Apparel, Inc. v. James, 10 F.3d 1156, 1163 (5th

Cir. 1994). 

The record shows that the district court did not abuse its

discretion by denying attorney’s fees and costs. In Miranti, we

held that a showing of bad faith was no longer necessary to award

attorney’s fees and the district court could exercise its

discretionary powers by simply finding that the case had been

removed on improper legal grounds. Miranti, 3 F.3d at 928. See

Avitts, 111 F.3d at 32 (holding that a court’s discretion to

award attorney’s fees under § 1447(c) is triggered only if the

court first finds that the defendant’s decision to remove was

legally improper). In Miranti, the district court’s rationale

for awarding attorney’s fees was based on a misunderstanding of

the applicable law. It awarded attorney’s fees under the

erroneous belief that federal jurisdiction had been lost when the

award limit fell to $25,000 as a consequence of dismissing one of

the parties to the suit.

It is well settle within this Circuit that the district

court has the discretion to award or deny attorney’s fees as it

sees fit. See Moore, 981 F.2d at 446 (holding that Congress has

unambiguously left the award of fees to the discretion of the

district court); Tenner v. Zurek, 168 F.3d 328,(7th Cir. 1999). 

Upon reviewing the record, this Court is unpersuaded by the

Milners’ assertions that the district court abused its discretion
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by failing to award attorney’s fees and costs. Moreover, we find

that the lower court could have reasonably concluded that an

expense award was unwarranted under the facts of this case. The

issue, of whether there was an abuse of discretion by the lower

court, is determined, however, by our failure to find any fault

in the lower court’s interpretation of the law and by our failure

to find that it erroneously assessed the evidence presented

before it.

III.

For the aforementioned reasons, we find that the district

court did not abuse it discretion in denying the Milners’ request

for attorney’s fees, expenses and costs. Accordingly, we AFFIRM

the district court’s decision in all respects.