FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

DEC 27, 2006

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 06-14158

Non-Argument Calendar

________________________

D. C. Docket No. 05-00982-CV-T-23-TBM

DEBBIE DEVINE,

Plaintiff-Appellee,

versus 

PRISON HEALTH SERVICES, INC.,

Defendant-Appellant,

AMERICA SERVICE GROUP, INC., et al.,

Defendants.

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(December 27, 2006)

Before BIRCH, PRYOR and HILL, Circuit Judges.
2

PER CURIAM:

Debbie Devine seeks the award of attorney’s fees incurred by her due to the

alleged improper removal to federal court of this action by defendant, Prison

Health Services, Inc. The district court awarded certain of the fees and the

defendant appealed.

I.

Debbie Devine filed this action in state court against appellant and others for

violations of the Florida Private Whistle blowers Act, § 448.1 02, defamation,

wrongful discharge, payment for accrued but unpaid wages, intentional infliction

of emotional distress, and false light invasion of privacy. Devine’s claims arise

under Florida statutes and Florida common law.

In May of 2005, Prison Health Services, Inc., (“PHS”) removed this action,

asserting that Devine invoked federal jurisdiction by mentioning the words

“federal” and “overtime” in her complaint. In addition to filing the Notice of

Removal, PHS filed approximately 50 pages of pleadings against Devine in the

federal court to which she was forced to respond.

In June of 2005, two days after removal, Devine filed an Amended

Complaint in which she removed the word “federal” from her complaint and

requested that PHS stipulate to her contemporaneously filed motion for remand. 
3

PHS refused.

On July 7, 2005, the district court granted Devine’s motion and remanded

the action to state court, holding that PHS had failed to establish a basis for federal

jurisdiction. The court rejected PHS’s claim that federal question jurisdiction

appears on the face of the complaint, stating that “[m]erely employing the word

‘overtime’ in a complaint raises no federal question unless the ‘overtime’

compensates work in excess of forty hours . . . .” The court also held that diversity

jurisdiction was not available as a basis for jurisdiction because not all the parties

were diverse, PHS did not meet its “heavy burden” to show fraudulent joinder, and

there was no showing that the amount in controversy was met. The court granted

Devine’s request for fees and costs incurred as the result of the improper removal.

The district court referred the matter to the magistrate judge to determine the

amount of fees. On March 10, 2006, the magistrate issued a Report and

Recommendation granting $2,821.50 to Devine. PHS filed no objections to the

Report and Recommendation. Accordingly, on March 29, 2006, the district court

entered a final order adopting the Report and Recommendation and awarding the

fees as determined by the magistrate judge.

On April 10, 2006, PHS filed a motion for reconsideration of the award of

attorney’s fees, asserting as “intervening law” a Supreme Court decision that was
4

handed down on December 7, 2005, after the district court order awarding fees but

over three months before both the Report and Recommendation and the district

court’s order reducing its award to a judgment. PHS claimed that this intervening

law that required reversal of the district court’s award of fees. The district court

denied the motion, holding that the authority from the Supreme Court did not

change the result in this case. We agree.

II.

The Supreme Court’s decision in Martin v. Franklin Capital Corp., 126 S.

Ct. 704 (2005), does not require that we reverse the district court’s award of fees in

this case. In Martin, the Court held that there is no presumption in favor of the

award of fees and costs upon the grant of remand for improvident removal. Id. at

711. PHS contends that reversal of the district court award is required because 

the district court “appear[ed] to award fees simply because the case was

remanded,” which Martin prohibits. We disagree.

In remanding this case, the district court specifically relied upon and cited

Tran v. Waste Management, Inc., 290 F. Supp. 2d 1286 (M.D. Fla. 2003). Tran

permits the award of attorney’s fees, in the discretion of the district court, when the

district court finds that the removal was “patently improper” and the defendant

demonstrated no reasonable basis for removal. Id. at 1295. Thus, the district
5

court clearly recognized that it was exercising its discretion in the award of these

fees. Martin is inapplicable.

As to whether the district court abused its discretion in choosing to award

these fees, Martin explains that “the standard for awarding fees should turn on the

reasonableness of the removal.” 126 S. Ct. at 711. The district court determined

that the removal in this case was not objectively reasonable because there was no

basis for federal jurisdiction on the face of the complaint. We find no abuse of

discretion in this conclusion. Fowler v. Safeco Ins. Co., 915 F.2d 616, 617 (11th

Cir. 1990) (we may review the merits of a remand order in considering whether the

district court abused its discretion by awarding attorneys’ fees and costs under 28

U.S.C. § 1447(c)).

PHS had no objectively reasonable basis for removing this action. See

Martin, 126 S. Ct. at 711. The magistrate found and the district court agreed that

Devine’s complaint asserted no federal question on its face and PHS failed to

provide a reasonable argument in support of diversity jurisdiction. Accordingly,

the district court concluded that PHS failed to demonstrate any objectively

reasonable basis for federal jurisdiction in its removal petition or arguments in

support thereof. Based upon our review of this record and the briefs on appeal, we

find no abuse of discretion in this conclusion. Accordingly, the judgment of the
6

district court awarding fees is

AFFIRMED.