                                                     [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                               FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                            JUL 06, 2006
                             No. 06-11038                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                 D. C. Docket No. 05-00147-CV-WCO-2

DARRELL P. HANSARD,
CHERIE L. HANSARD,

                                                     Plaintiffs-Counter
                                                     Defendants-Appellees,

                                  versus

FORSYTH COUNTY, GA,

                                                     Defendant-Counter
                                                     Claimant-Appellant.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                     _________________________

                              (July 6, 2006)

Before MARCUS, WILSON and PRYOR, Circuit Judges.
PER CURIAM:



      Forsyth County, Georgia, appeals the award of attorney’s fees against it for

improper removal of this action. The County argues that the removal was proper

and, even if the removal was improper, the County had an objectively reasonable

basis for removal. We affirm.

                                I. BACKGROUND

      Darrell P. and Cherie L. Hansard purchased a parcel of land in Forsyth

County that contained a small cabin and a gravel driveway. The Hansards obtained

permits to construct a new home on the parcel of land. The new home was to be

built over part of the existing gravel driveway. After the Hansards began

construction of their home, a dispute arose over whether the gravel driveway was a

public road for which the County had a prescriptive easement. The dispute was not

resolved, and on August 16, 2005, the County issued a “Stop Work” order to the

Hansards that required them to cease all work on the house and property.

      On September 12, 2005, the Hansards filed a complaint in state superior

court that requested declaratory and injunctive relief under various sections of the

Georgia Code. The court scheduled a hearing for September 30. On September

28, the County removed the action on the ground that a federal question had been



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raised in the complaint, and the Hansards moved to remand. After a hearing on the

motion to remand, the district court determined that the Hansards had not pleaded a

federal claim for relief and remanded the case to state court with an award of

attorney’s fees to the Hansards because of the improper removal. The County

moved for reconsideration, but the district court denied the motion. The County

appealed the award of attorney’s fees, but not the order to remand.

                           II. STANDARD OF REVIEW

      We review an award of attorney’s fees by the district court for abuse of

discretion. Legg v. Wyeth, 428 F.3d 1317, 1320 (11th Cir. 2005).

                                 III. DISCUSSION

      The County makes two arguments on appeal. First, the County argues the

district court abused its discretion when it awarded attorney’s fees because removal

was proper. Second, the County argues that, even if removal was not proper, the

district court abused its discretion when it awarded attorney’s fees because the

County had an objectively reasonable basis for removal. We address each

argument in turn.

        A. Removal Was Not Proper Because the Hansards Did Not Plead a
                               Federal Claim.

      Civil actions brought in a state court may be removed by the defendant if the

action falls within the original jurisdiction of the federal courts. 28 U.S.C. §

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1441(a). The district courts have original jurisdiction over all civil actions that

arise under the Constitution or laws of the United States. 28 U.S.C. § 1331(a).

“As a general rule, a case arises under federal law only if it is federal law that

creates the cause of action.” Diaz v. Sheppard, 85 F.3d 1502, 1505 (11th Cir.

1996) (citing Franchise Tax Bd. v. Constr. Laborers Vacation Trust for S. Cal., 463

U.S. 1, 8-10, 103 S. Ct. 2841, 2846 (1983)).

      Although we do not review remand orders, we consider the objective

validity of the remand order to determine whether the award of attorney’s fees was

an abuse of discretion. Legg, 428 F.3d at 1320 (citing Hornbuckle v. State Farm

Lloyds, 385 F.3d 538, 541 (5th Cir. 2004)). An award of attorney’s fees based on

a legally erroneous remand order is an abuse of discretion. Id. The County argues

that the remand order was erroneous because the Hansards pleaded a federal claim

on the face of the complaint, which would give the district court subject matter

jurisdiction and make removal proper. See 28 U.S.C. § 1441(a).

      The County relies on the following language in the Hansards’ complaint to

establish that the Hansards pleaded a federal claim for relief: “Defendant’s

arbitrary and capricious acts have violated Plaintiffs’ rights under . . . the United

States Constitution, including U.S. Const. amend. V and amend. XIV, § 1, and

have thereby caused Plaintiffs irreparable injury.” This statement, by itself, does



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not state a federal claim because the Constitution did not create the cause of action

alleged. See Diaz, 85 F.3d at 1505. We must review the Hansards’ complaint to

determine what law, state or federal, created any of their claims for relief.

      A review of the Hansards’ complaint establishes that it was predicated upon

state, not federal, laws. The Hansards asserted in count one of their complaint that

they sought a declaratory judgment that the County had “no public roadway,

easement or right of way on, through or over the Property, by prescription or

otherwise.” The legal question to be resolved in the complaint then was whether

the County had a prescriptive easement over the Hansards’ property, a question of

state law. The Hansards requested declaratory relief under section 9-4-2(a) of the

Georgia Code, not under any federal statutes. The complaint was brought under a

state statute, and “‘a suit brought upon a state statute does not arise under an act of

Congress or the Constitution of the United States because prohibited thereby.’”

Franchise Tax Bd., 463 U.S. at 13, 103 S. Ct. at 2848 (quoting Gully v. First Nat’l

Bank, 299 U.S. 109, 116, 57 S. Ct. 96, 99 (1936)).

         B. The County Had No Objectively Reasonable Basis for Removal.

      A court may award attorneys’ fees for a remand “only where the removing

party lacked an objectively reasonable basis for seeking removal.” See Martin v.

Franklin Capital Corp., – U.S. –, 126 S. Ct. 704, 711 (2005). When it applies this



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test, the court “should recognize the desire to deter removals sought for the

purpose of prolonging litigation and imposing costs on the opposing party.” Id.

We first determine whether the County had an objectively reasonable basis for

removal and then consider whether the removal prolonged the litigation or imposed

costs on the Hansards.

      The County erroneously argues that the complaint raised a potential Fifth

Amendment “takings” claim and a Fourteenth Amendment “substantive due

process” claim, and these allegations provided the County with an objectively

reasonable basis for assuming the presence of a federal claim. Even if we assume,

for the sake of argument, that the allegations of the complaint potentially could

serve as a basis for bringing Fifth and Fourteenth Amendment claims, the “‘mere

presence of a federal issue in a state cause of action does not automatically confer

federal-question jurisdiction.’” Diaz, 85 F.3d at 1505. We have recognized that a

case that alleges a state law claim may arise under federal law “‘if a well-pleaded

complaint establishes that [the] right to relief under state law requires resolution of

a substantial question of federal law in dispute between the parties,’” id. (quoting

Franchise Tax Bd., 463 U.S. at 13, 103 S. Ct. at 2848), but if the state law question

must be resolved before the federal question can be reached, “[t]he most that one

can say is that a question of federal law is lurking in the background.” Franchise



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Tax Bd., 463 U.S. at 11-12, 103 S. Ct. at 2847 (quoting Gully, 299 U.S. at 116, 57

S. Ct. at 99). Because the complaint, on its face, did not plead a federal claim and

resolution of the state law claims does not necessarily require resolution of any

federal issues, the County did not have an objectively reasonable basis for removal.

      After it concluded that the County had no objectively reasonable basis for

removal, the district court considered the delays and costs imposed by the removal.

The district court noted that the removal occurred two days before the scheduled

hearing on the Hansards’ preliminary injunction motion and prevented the hearing.

The removal delayed resolution of the case for over two months and, therefore,

delayed construction of the Hansards’ home for over two months. In this

circumstance, we cannot say the district court abused its discretion in awarding

attorneys’ fees to the Hansards.

                                   IV. CONCLUSION

      The award of attorney’s fees by the district court is

      AFFIRMED.




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