United States Court of Appeals

for the Fifth Circuit

____________

No. 23-10311

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Jesse Casas, 

Plaintiff—Appellee,

versus

Lickity Split Expediting, L.L.C., 

Defendant—Appellant.

______________________________

Appeal from the United States District Court 

for the Northern District of Texas

USDC No. 5:22-CV-37

______________________________

Before Higginbotham, Higginson, and Duncan, Circuit Judges.

Per Curiam:

*

The district court has remanded this case twice to the state court, and 

as part of its second order remanding the case, it awarded attorney’s fees 

against Appellant Lickity Split Expediting, L.L.C., in the amount of 

$35,980.00. Because we find that the district court did not abuse its 

discretion in calculating or awarding these fees, we AFFIRM the lower 

court’s grant of attorney’s fees. 

_____________________

* This opinion is not designated for publication. See 5th Cir. R. 47.5.

United States Court of Appeals

Fifth Circuit

FILED

December 5, 2023

Lyle W. Cayce

Clerk

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I.

This appeal arises out of a tort suit initiated by Jesse Casas in state 

court for an injury sustained when an industrial air conditioner was dropped 

from a crane onto his legs on April 30, 2021. On May 28, 2021, Casas sued 

Temtrol, Inc. (“Temtrol”), Anthony Mechanical Services, Inc. (“AMS”), 

and Lickity Split in the 99th Judicial District of Lubbock County for 

negligence and gross negligence.

A.

The First Remand

In August 2021, Nortek Air Solutions, LLC (“Nortek”) appeared in 

state court and removed the case to federal court. Nortek contended that it

had merged with Temtrol, Temtrol no longer existed, and that Casas

intended to sue Nortek instead of Temtrol.1 Nortek also alleged that Casas 

fraudulently joined AMS to defeat diversity. However, Nortek was not a 

named defendant and had never sought to become one in state court. Casas 

filed a motion to remand, arguing that Nortek lacked the requisite authority 

to initiate removal proceedings and that federal precedent required a remand. 

On February 23, 2022, Judge James Hendrix agreed with Casas and 

remanded the case to state court after finding that Nortek “has no voice in 

these proceedings” and that a “nonparty may not remove a case from state 

to federal court, regardless of whether it believes it should be a party.” 

_____________________

1 Although Temtrol was created on August 12, 1955, it ceased to exist in 2010 

pursuant to Oklahoma’s General Corporation Act when it was converted into Temtrol, 

LLC. After a merger with another company called CES Group, LLC in 2014, the surviving 

entity eventually became Nortek. 

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The Second Remand 

About two weeks after Judge Hendrix remanded the case, Lickity Split 

removed the case to federal court, arguing (on the same grounds as Nortek) 

that AMS was improperly joined. The district court again remanded the case 

to state court, finding that the removal was procedurally deficient under 28 

U.S.C. § 1446(b)(2)(A) because no other defendant consented to Lickity 

Split’s motion.

2

After remanding, the district court ordered Casas to file a motion for 

fees pursuant to 28 U.S.C. § 1447(c) which authorizes a district court to 

award attorney’s fees incurred as a result of removal. Casas was ordered to 

focus on the availability of fees where a defendant failed to comply with the 

procedural requirements of removal. Casas filed the application for 

attorney’s fees, requesting a “lodestar” calculation of $122,350 in fees. 

Lickity Split responded that no fees were warranted because they believed 

the consent requirement did not apply to Temtrol, which had merged with 

Nortek. The district court disagreed, however, and granted Casas’s

application for attorney’s fees in part, awarding $35,980.00 to Casas.

First, the district court found that Lickity Split’s removal attempt was 

“objectively unreasonable because it failed to comply with the fundamental 

statutory requirement that all properly joined defendants consent to 

removal.” The district court, having found that Temtrol was already a party 

to the suit, “put [Lickity Split] on notice that Temtrol was a proper 

defendant and, as such, any removal required its consent.”

_____________________

2 See 28 U.S.C. § 1446(b)(2)(A) (“When a civil action is removed solely under 

section 1441(a), all defendants who have been properly joined and served must join in or 

consent to the removal of the action.”) (emphasis added).

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Second, the district court quantified the amount owed by Lickity Split 

using the lodestar method. After reviewing the time entries submitted, the 

district court concluded that Casas’s attorneys expended a total of 198.2 

hours in connection with both removals, 70.4 of which responded to the 

Nortek removal.

Lickity Split argued that Casas should not recover for hours spent 

responding to Nortek’s removal action, because they were not related to

Lickity Split’s removal. However, the district court found that Lickity Split 

“duplicated Nortek’s improper-joinder argument” and that Casas 

“reasserted—essentially verbatim—the counterarguments he presented in 

his first motion to remand.” Therefore, now faced with a second 

procedurally defective removal, the district court found that it could not 

“ignore the time Casas’s attorneys wasted litigating the improper-joinder 

issue” in the first removal action. “Irrespective of when the issue was first 

raised, [Lickity Split] made a strategic choice to raise it again.” As such, the 

district court included the time spent in the Nortek removal and the hours 

spent otherwise responding to Lickity Split’s procedurally defective attempt 

to remove. 

Third, the district court found that certain reductions were necessary 

to account for the lack of evidence of billing judgment in the record. As to the 

time entries before Lickity Split’s removal, the district court found that Casas 

failed to produce evidence showing that the entries related only to the 

improper joinder argument. With respect to the time entries after Lickity 

Split’s removal, the district court found that it lacked the requisite 

information to confirm that Casas has not “double billed” for the same work 

in the context of both removals. Given the lack of specificity, the district 

court found that (1) “a reduction by 20% of the total hours billed before

[Lickity Split’s] removal reasonably adjusts the relatively minor number of 

hours billed with respect to the first removal;” and (2) “that a larger 40% 

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reduction of the total hours billed after [Lickity Split’s] removal is reasonable 

to correct for the substantial overlap between each motion to remand.”

After imposing the percentage reductions and removing a senior

paralegal’s hours, the district court found that Casas’s team reasonably 

expended 127.04 hours of labor in response to Lickity Split’s defective 

removal. 

Fourth, the district court determined that “exorbitantly high rates 

charged by the Buzbee Law Firm” were not supported by Casa’s evidence.

As such, the district court reduced the hourly rates charged by Casas’s 

lawyers.3 Altogether, “when multiplying the reasonable number of hours 

worked by each attorney by his or her reasonable hourly rate, [the district

_____________________

3 The district court found that: “Buzbee has failed to consider three factors in 

particular: (1) the relevant market; (2) the type of work performed by his firm; and (3) the 

size and breadth of his firm. See Jiwani [v. United Cellular, Inc.], No. 3:13-CV-4243-M-BK, 

2014 WL 4805781, at *5 (finding that a court may take judicial notice of a report prepared 

by the Texas State Bar); see also Fed. R. Evid. 201(b)(2) (permitting a court to take 

judicial notice of facts that ‘can be accurately and readily determined from sources whose 

accuracy cannot reasonably be questioned’).” 

The district court also noted that “Buzbee points to Houston rather than 

Lubbock—where this Court sits—as the relevant market, which improperly drives up his 

rates.” Moreover, “[h]ourly rates recently approved in this district—though not 

dispositive—further undercut the rates proposed by Buzbee.”

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court found] the lodestar is $35,980.00.” Lastly, the district court found that, 

under the Johnson factors,4 no further adjustments were necessary.5

B.

Lickity Split appeals the district court’s grant of attorney’s fees. First, 

Lickity Split argues that the district court abused its discretion in awarding 

the fees because its removal was “objectively reasonable” because: (1) 

Temtrol ceased to exist over a decade before Lickity Split’s removal; and (2) 

the district court had previously issued an order stating that Temtrol’s 

successor entity, Nortek, “had no voice in these proceedings” after Nortek 

had attempted to remove the case. Lickity Split further argues that the 

district court abused its discretion by improperly awarding attorney’s fees to

Casas for work unrelated to Lickity Split’s removal, i.e., the fees Casas’s 

attorneys billed for work relating to Nortek’s removal attempt. Lastly, Lickity 

Split contends that the district court abused its discretion by improperly 

awarding attorney’s fees for hours expended by Casas’s attorneys on the 

_____________________

4 Johnson v. Ga. Highway Exp., Inc., 488 F.2d 714, 717–19 (5th Cir. 1974). “[A] court 

may, if necessary, adjust the lodestar based on the weight of twelve factors: (1) the time and 

labor required; (2) the novelty and difficulty of the issues in the case; (3) the skill required 

to perform the legal services properly; (4) the preclusion of other employment by the 

attorney due to acceptance of the case; (5) the customary fee charged for those services in 

the relevant community; (6) whether the fee is fixed or contingent; (7) time limitations 

imposed by the client or the circumstances; (8) the amount involved and the results 

obtained; (9) the experience, reputation, and ability of the attorneys; (10) the undesirability 

of the case; (11) the nature and length of the professional relationship with the client; and 

(12) awards in similar cases.” 

5 Specifically, the district court found: “Casas does not identify any business that 

his attorneys refused due to their handling of these proceedings. Nor does he point to any 

reason that has made his case undesirable to undertake. And Casas does not have a preexisting relationship with the Buzbee Law Firm that would justify an atypical rate. Finally, 

other fee awards granted by courts in this district under Section 1447(c)—though at times 

smaller than the lodestar here—do not justify any further adjustment because those cases 

dealt with less involved, less time-consuming motions to remand.” 

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issue of improper joinder, the merits of which the district court never 

addressed.

II.

This Court reviews a district court’s award of attorney’s fees award 

for an abuse of discretion and the factual findings supporting the fee award 

for clear error.6

“When the district court remands a case to state court, it has 

discretion to award the non-removing party its attorney’s fees incurred as a 

result of the removal, see 28 U.S.C. § 1447(c), but ‘[a]bsent unusual 

circumstances, attorney’s fees should not be awarded when the removing 

party has an objectively reasonable basis for removal.’”7 The Court focuses

on an “objective view of the legal and factual elements in each particular 

case.”8 This Court must “evaluate the objective merits of removal at the 

time of removal” and ask “whether the defendant had objectively reasonable 

grounds to believe the removal was legally proper.”9 The party challenging 

the award must point to “authority showing that the district court erred in 

its assessment of the relevant facts or in its legal conclusion” and cannot 

simply plead that the “the district court abused its discretion.”10

_____________________

6 See Omega Hosp., L.L.C. v. Louisiana Health Serv. & Indem. Co., 592 F. App’x 

268, 270 (5th Cir. 2014); Hornbuckle v. State Farm Lloyds, 385 F.3d 538, 541 (5th Cir. 2004).

7 Omega Hosp., 592 F. App’x at 270 (quoting Martin v. Franklin Cap. Corp., 546 

U.S. 132, 136 (2005)).

8 Valdes v. Wal-Mart Stores, Inc., 199 F.3d 290, 293 (5th Cir. 2000).

9

Id.

10 MidCap Media Fin., L.L.C. v. Pathway Data, Inc., 857 F. App’x 786, 793 (5th Cir. 

2021).

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Lastly, “[f]ailure to raise an argument before the district court waives 

that argument” on appeal.11 This Court does not “consider a waived 

argument ‘absent extraordinary circumstances.’”12

III.

A.

We find that the district court did not abuse its discretion in awarding 

the attorney’s fees. The district court’s determination was reasonable, as it 

relied on the plain terms of 28 U.S.C. § 1446(b)(2)(A) and binding Fifth 

Circuit law. 

28 U.S.C. § 1446(b)(2)(A) requires that “all defendants who have 

been properly joined and served must join in or consent to the removal of the 

action.”13 As the district court explained, “the plain text of the removal 

statute defies the reasonableness of [Lickity Split’s] removal.” In this case, 

Lickity Split failed to obtain Temtrol’s consent before removing the case to 

federal court, thereby failing to comply with the procedural requirements of 

removal. The district court also explained that “Fifth Circuit precedent 

further highlights the unreasonableness of [Lickity Split’s] argument . . . . [as] 

[t]he Fifth Circuit has repeatedly affirmed that ‘[t]he law is clear that under 

28 U.S.C. § 1446(a), removal procedure requires that all defendants join in 

the removal petition.’”14

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11 Rossco Holdings, Inc. v. McConnell, 613 F. App’x 302, 307 (5th Cir. 2015) (quoting 

Fruge v. Amerisure Mut. Ins. Co., 663 F.3d 743, 747 (5th Cir. 2011)).

12 McConnell, 613 F. App’x at 307 (quoting N. Alamo Water Supply Corp. v. City of 

San Juan, 90 F.3d 910, 916 (5th Cir. 1996)).

13 28 U.S.C. § 1446(b)(2)(A) (emphasis added). 

14 Doe v. Kerwood, 969 F.2d 165, 167 (5th Cir. 1992).

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Lickity Split counters that the district court created an inescapable

“Catch-22” because, at the time of its removal, Temtrol no longer existed as 

a corporate entity and the district court had found that Temtrol’s successor, 

Nortrek, had no say in the proceedings. The district court, however, directly 

addressed this “procedural paradox” and explained that it had already 

recognized Temtrol as a party to the suit. We find no clear error in the district 

court’s factual finding with respect to Temtrol’s status as a party in the 

underlying case—Temtrol maintained a registered agent on the Texas 

Secretary of State’s website, Casas served the registered agent, and it was 

undisputed that Temtrol was being represented by counsel in the state court 

proceedings. The district court thus “put [Lickity Split] on notice that 

Temtrol was a proper defendant and, as such, any removal required its 

consent.”

Furthermore, “although the [district court] previously rejected 

Nortek’s status as a party to this suit, it never discredited Nortek’s legal 

existence or its authority to act on behalf of Temtrol.” We then agree with 

the district court that there was no reason why Nortek could not have simply 

signed the removal petition on Temtrol’s behalf. 

Having carefully considered Tremtol’s status as a party to the 

underlying suit, the plain terms of 28 U.S.C. § 1446(b)(2)(A), and binding 

Fifth Circuit law, we hold that the district court did not abuse its discretion 

in awarding attorney’s fees against Lickity Split. 

B.

We also find that the district court did not abuse its discretion in 

awarding fees for time spent on Nortek’s attempted removal.

The district court found that it could not “ignore the time that Casas’s 

attorneys wasted litigating the improper-joinder issue” in the Nortek 

removal, an issue that Lickity Split strategically chose to raise again. The 

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district court, however, awarded only a fraction of the fees Casas requested 

relating to the time incurred responding to Lickity Split’s joinder argument, 

as it reduced (1) the number of recoverable hours by twenty percent to 

account for a “lack of evidence of billing judgment” and potential for 

“double-billing;” (2) the number of recoverable hours by another forty 

percent to account for overlap between each motion to remand; and (3) the 

requested hourly rates for Casas’s counsel. Under these facts, we find that 

the district court did not abuse its discretion in awarding fees for work 

relating to the first removal action, as Lickity Split made the strategic 

decision to revive the argument in its own removal action. 

C.

Lastly, as to Lickity Split’s argument that the district court abused its 

discretion by improperly awarding attorney’s fees to Casas for hours 

expended by his attorneys on the issue of improper joinder (instead of the 

“winning” procedural defect argument), we find that Lickity Split failed to 

preserve this argument for appeal as it was not raised before the district court. 

Seeing as there are no “extraordinary circumstances” warranting a different 

finding, we cannot find that the district court abused its discretion.15

* * * * *

“[B]earing in mind [the district] court’s superior understanding of the 

litigation and of the costs and fees reasonably incurred in that litigation,” we 

find that the district court did not abuse its discretion by awarding attorney’s 

fees or by including fees associated with the fist removal action.16 Lickity Split 

also failed to preserve its last argument that the district court abused its 

_____________________

15 See McConnell, 613 F. App’x at 307.

16 Pathway Data, 857 F. App’x at 793.

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discretion in awarding fees pertaining to the issue of joinder. For these 

reasons, we AFFIRM the district court’s order granting attorney’s fees.

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