### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

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: * Plaintif fs-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 I n du stries, Inc., and Sherwin Wi lli a m s 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. U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Octob er 17 , 20 11 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the cour t hasd ete rm inedthat this op inion s houldnot * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 11-30391 Document: 00511634590 Page: 1 Date Filed: 10/17/2011No. 11-30391

The case was initially brought in the 28th District C o u rt for the Parish of LaSalle, Louisiana , o n March 11, 2004. After over six years of litigation, the state court set a trial date of M ay 1 0 , 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 i m p r o p er removal. as well as $16,317.68 in costs a n d other expenses. The McCanns paid their five experts $17,361.00 in fees for th e 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 d e f e ndants’ 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 $16,317.68award 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, inc l u ding attorney fees, incurred as a result of the removal.” We a p p ly 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 di s t rict 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. 19 94). Th e exp en s e s awarded in this case were incurred before the McCann s w ere
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 incurredas a result of the removal. The district court’s judgment of April 5, 2011, is VACATED ; th e c a s e 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