                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________                  FILED
                                                          U.S. COURT OF APPEALS
                               No. 09-12840                 ELEVENTH CIRCUIT
                                                             DECEMBER 30, 2009
                           Non-Argument Calendar
                                                             THOMAS K. KAHN
                         ________________________
                                                                  CLERK

                   D. C. Docket No. 08-00390-CV-T-33-EAJ

EDWARD BUJANOWSKI,


                                                                 Plaintiff-Appellee,

                                     versus

LONNIE KOCONTES,

                                                            Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                       _________________________

                              (December 30, 2009)

Before BLACK, BARKETT and PRYOR , Circuit Judges.

PER CURIAM:

     This appeal arises out of Lonnie Kocontes’s removal of a Florida state action
to federal court based on diversity jurisdiction and the subsequent remand to state

court. Specifically, this appeal concerns the district court’s orders issued under 28

U.S.C. § 1447(c) that: (1) adopted a magistrate judge’s report and recommendation

finding Kocontes liable for Edward Bujanowski’s attorneys’ fees and costs

associated with the removal proceeding because Kocontes did not have an

objectively reasonable basis for the removal; and (2) adopted in part another report

and recommendation by the same magistrate, reducing the total fees sought by only

20%.

1.     Removal

       A defendant may remove to federal court a civil action brought in state

court, provided that the federal court has original jurisdiction over the action. 28

U.S.C. § 1441(a). Nevertheless, after removal, “[i]f at any time before final

judgment it appears that the district court lacks subject matter jurisdiction, the case

shall be remanded.” 28 U.S.C. § 1447(c). Generally, 28 U.S.C. § 1447(d)

provides that “[a]n order remanding a case to the State court from which it was

removed is not reviewable on appeal.” 28 U.S.C. § 1447(d). We have, however,

carved out a limited exception in that the appellate court “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).” Legg v. Wyeth,



                                           2
428 F.3d 1317, 1319 (11th Cir. 2005). An abuse of discretion “occurs if the court

fails to apply the proper legal standard or to follow proper procedures in making

the determination, or bases an award upon findings of fact that are clearly

erroneous.” Gray v. Bostic, 570 F.3d 1321, 1324 (11th Cir. 2009) (quotation

omitted).

      Diversity jurisdiction exists for lawsuits between citizens of different states

when the amount in controversy exceeds the statutorily prescribed amount. 28

U.S.C. § 1332(a). Diversity jurisdiction has to exist at the time of removal. Behlen

v. Merrill Lynch, 311 F.3d 1087, 1095 (11th Cir. 2002). “A party removing a case

to federal court based on diversity of citizenship bears the burden of establishing

the citizenship of the parties.” Rolling Greens MHP, L.P. v. Comcast SCH

Holdings, LLC., 374 F.3d 1020, 1022 (11th Cir. 2004). “Citizenship is equivalent

to ‘domicile’ for purposes of diversity jurisdiction.” McCormick v. Aderholt, 293

F.3d 1254, 1257 (11th Cir. 2002). “A person’s domicile is the place of his true,

fixed, and permanent home and principal establishment, and to which he has the

intention of returning whenever he is absent therefrom.” Id. at 1257-58 (quotation

marks and citations omitted). “[A] change of domicile requires a concurrent

showing of (1) physical presence at the new location with (2) an intention to

remain there indefinitely.” Id. at 1258 (quotation marks and citations omitted).



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      The Supreme Court has held that even though 28 U.S.C. § 1447(c) allows a

court to require payment of just costs and attorneys’ fees incurred as a result of

removal, such fees “should not be awarded when the removing party has an

objectively reasonable basis for removal.” Martin v. Franklin Capital Corp., 546

U.S. 132, 136 (2005). The Supreme Court has further instructed that the

“appropriate test for awarding fees under § 1447(c)” is to balance between

deterring “removals sought for the purpose of prolonging litigation and imposing

costs on the opposing party,” and safeguarding defendants’ statutory right “to

remove as a general matter, when the statutory criteria are satisfied.” Id. at 140.

      In this case, the district court did not abuse its discretion in finding, after an

evidentiary hearing, that Kocontes did not have an objectively reasonable basis for

removal when he filed a notice to remove in February 2008 because: (1) he was

actually domiciled in Florida at the time; and (2) because of the overwhelming

evidence of his Florida domicile, the removal was objectively unreasonable and

was likely sought to prolong litigation and impose costs on the opposing party.

2.    Fees awarded

      We review “the district court’s award of attorneys’ fees and costs for an

abuse of discretion.” Legg, 428 F.3d at 1320. A district judge “may accept, reject,

or modify, in whole or in part, the findings or recommendations made by the



                                            4
magistrate,” after conducting a de novo determination of the portions to which the

parties objected. 28 U.S.C. § 636(b)(1).

      Pursuant to 28 U.S.C. § 1447(c), “[a]n order remanding [a] case may require

payment of just costs and any actual expenses, including attorney fees, incurred as

a result of the removal.” 28 U.S.C. § 1447(c). In this Circuit, the starting point for

calculating attorneys’ fees is to multiply the number of hours reasonably expended

by a reasonable rate to determine the “lodestar” amount, which has a strong

presumption to be the reasonable sum. Bivins v. Wrap It Up, Inc., 548 F.3d 1348,

1350 (11th Cir. 2008). Regarding hourly rates, we have held that a reasonable rate

is the “prevailing market rate in the relevant legal community for similar services

by lawyers of reasonably comparable skills, experience, and reputation.” Loranger

v. Stierheim, 10 F.3d 776, 781(11th Cir. 1994) (quotation marks and citation

omitted). Regarding reasonable hours, we have held that hours that are “excessive,

redundant, or otherwise unnecessary,” should not be included. Norman v. Hous.

Auth. of Montgomery, 836 F.2d 1292, 1301 (11th Cir. 1988). Finally, if the

number of hours is unreasonably high, the district court may employ either one of

the following methods, but not both: (1) an hour-by-hour analysis to make a more

precise determination, or (2) an across-the-board cut after calculating the

reasonable sum. Bivins, 548 F.3d at 1351-52.



                                           5
      In this case, the district court did not abuse its discretion in only reducing the

total amount requested by 20% instead of adopting the magistrate’s

recommendation of a 30% reduction.

      AFFIRMED.




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