IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-30391

Summary Calendar

HELEN CLAUDETTE MCCANN; ANGELA DEE MYLES; JULIE DEE

SPENCER; ALICIA DANIELLE DEE BROWN; DORSEY MCCANN,

Plaintiffs-Appellees,

v.

P P G INDUSTRIES, INCORPORATED; SHERWIN WILLIAMS COMPANY,

Defendants-Appellants

Appeal from the United States District Court 

for the Western District of Louisiana

USDC No. 1:10-CV-768

Before REAVLEY, SMITH, and PRADO, Circuit Judges.

PER CURIAM:*

Plaintiffs-Appellees Helen Claudette McCann, Angela Dee Myles, Julie

Dee Spencer, Alicia Danielle Dee Brown, and Dorsey McCann (collectively, “the

McCanns”) sue Defendants-Appellants P P G Industries, Inc., and Sherwin

Williams Co. (collectively “P P G”) for the death of Dorsey McCann, which the

McCanns allege resulted from his workplace exposure to P P G’s paint products.

United States Court of Appeals

Fifth Circuit

F I L E D

October 17, 2011

Lyle W. Cayce

Clerk

 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 circumstances set forth in 5TH CIR.

R. 47.5.4.

Case: 11-30391 Document: 00511634590 Page: 1 Date Filed: 10/17/2011
No. 11-30391

The case was initially brought in the 28th District Court for the Parish of

LaSalle, Louisiana, on March 11, 2004. After over six years of litigation, the

state court set a trial date of May 10, 2010. The trial did not occur, however,

because on that day P P G removed the case to federal court.

The federal district court found that removal was improper and remanded

the case on September 9, 2010. The district court awarded the McCanns

$8,925.00 in attorney fees resulting from the improper removal. as well as

$16,317.68 in costs and other expenses. The McCanns paid their five experts

$17,361.00 in fees for the experts’ preparation during the week preceding the

May 10, 2010 trial date. The district court found that $15,561.00 worth of the

experts’ work “was wasted due to the defendants’ improvident removal.” The

district court also found that the removal deprived the McCanns of the benefit

of $756.68 in other costs they incurred in anticipation of the May 10, 2010 trial

date. P P G appeals the $16,317.68 award for expenses. We REVERSE.

Title 28, U.S.C., Section 1447(c) provides that “[a]n order remanding the

case may require payment of just costs and any actual expenses, including

attorney fees, incurred as a result of the removal.” We apply an abuse of

discretion standard when reviewing a district court’s award of fees and costs

under § 1447(c). Hornbuckle v. State Farm Lloyds, 385 F.3d 538, 541 (5th Cir.

2004). “A district court 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 expenses awarded in this case were incurred before the McCanns were

even aware that P P G intended to remove. Although the removal deprived the

McCanns of the benefit of the pre-removal trial preparation, it is impossible that

the expense of that preparation was incurred as a result of the removal.

The district court’s judgment of April 5, 2011, is VACATED; the case is

REMANDED for reassessment of the expense award under 28 U.S.C. § 1447(c).

2

Case: 11-30391 Document: 00511634590 Page: 2 Date Filed: 10/17/2011