                                                             FILED
                                                 United States Court of Appeals
                    UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                       January 29, 2014

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
STUART N. AULD,

             Plaintiff - Appellant,

v.                                                  Nos. 13-3075 & 13-3108
                                              (D.C. No. 2:13-CV-02031-JTM-DJW)
JOHN W. AULD, SR. TRUSTEE AND                               (D. Kan.)
TRUSTS; SUN WEST MORTGAGE
COMPANY, INC.; JOHN W. AULD,
JR., Beneficiary of the Agreement of the
Auld Living Trust April 27, 1995,

             Defendants - Appellees,

and

SUSAN NANETTE AULD POWELL,
Beneficiary of the Agreement of the
Auld Living Trust April 27, 1995;
SETH HAMILTON AULD, Beneficiary
of the Agreement of the Auld Living
Trust April 27, 1995; NANCY ANNA
AULD, Beneficiary of the Agreement of
the Auld Living Trust April 27, 1995,

             Defendants.


                            ORDER AND JUDGMENT*
*
      After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Before HARTZ, McKAY, and BACHARACH, Circuit Judges.


      Plaintiff-appellant Stuart N. Auld appeals from the district court’s orders

remanding his case to state court, dismissing his motion for reconsideration, and

awarding attorney fees to defendant Sun West Mortgage Company. Lacking

jurisdiction to review the district court’s determination that it lacked subject matter

jurisdiction over the case, we dismiss No. 13-3075. In No. 13-3108, we affirm the

award of attorney fees.

                                     I. Background

      The state court litigation consisted of Mr. Auld’s lawsuit against his father and

his father’s suit against him. The cases concerned the ownership of real property, the

validity and priority of liens on the property, and whether Mr. Auld should be evicted

from the property. After the consolidated lawsuits were resolved against him,

Mr. Auld filed a notice of removal in the federal district court. Defendants filed a

joint motion to remand and for attorney fees for wrongful removal.

      The district court ordered the case remanded to state court. The court reasoned

that Mr. Auld’s removal failed because: (1) the removal statutes are construed

narrowly, and doubts about removal are resolved in favor of remand; (2) removal by

a plaintiff is not contemplated by 28 U.S.C. § 1446(a); (3) Mr. Auld filed the notice

of removal well beyond the thirty days allowed by § 1446(b)(3) after diversity


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jurisdiction, if present, became apparent by the intervention of defendant Sun West in

the state litigation; (4) the notice of removal was filed well beyond the one-year

maximum period provided in § 1446(c)(1); and (5) even if the state case could have

been removed, Mr. Auld waived his right to removal by litigating the case in state

court for more than ten months after the diverse party, Sun West, entered the

litigation. The court awarded defendants $2500 in attorneys fees for improper

removal under 28 U.S.C. § 1447(c), which the district court ultimately ordered to go

to Sun West.

      Mr. Auld filed a motion for reconsideration of the remand order. The district

dismissed the motion for lack of jurisdiction, explaining that it was barred from

reconsidering its remand order because it had remanded the case for lack of subject

matter jurisdiction due to defects in removal. Mr. Auld filed appeal No. 13-3075

from the remand order and appeal No. 13-3108 from the award of attorney fees.

                                    II. Discussion

      Under the removal statutes, “‘[a]n order remanding a case to the State court

from which it was removed is not reviewable on appeal or otherwise.’” Moody v.

Great W. Ry. Co., 536 F.3d 1158, 1162 (10th Cir. 2008) (quoting § 1447(d)). As we

have construed § 1447(d) in conjunction with § 1447(c), we lack jurisdiction to

review the district court’s remand order because it was “based on a lack of

subject-matter jurisdiction or a timely raised defect in removal procedure.” Id. As a

result, appeal No. 13-3075 must be dismissed. Mr. Auld asks us to construe his


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appeal as a petition for writ of mandamus, but the jurisdictional bar includes

mandamus. Archuleta v. Lacuesta, 131 F.3d 1359, 1360 (10th Cir. 1997).

      Even though we may not review the district court’s remand order, however, we

have jurisdiction under § 1447(c) to review the court’s award of attorney fees.

Topeka Housing Auth. v. Johnson, 404 F.3d 1245, 1248 (10th Cir. 2005). “A court’s

decision to grant a fee award is reviewed for abuse of discretion, while the

underlying legal analysis is reviewed de novo.” Porter Trust v. Rural Water Sewer &

Solid Waste Mgmt. Dist. No. 1, 607 F.3d 1251, 1253 (10th Cir. 2010) (internal

quotation marks omitted). “Absent unusual circumstances, courts may award

attorney’s fees under § 1447(c) only where the removing party lacked an objectively

reasonable basis for seeking removal. Conversely, when an objectively reasonable

basis exists, fees should be denied.” Id. (internal quotation marks omitted).

      The district court’s reasons for concluding that removal was defective are

well-supported and correct. Mr. Auld clearly “lacked an objectively reasonable basis

for seeking removal.” Id. (internal quotation marks omitted). The district court did

not abuse its discretion in awarding attorney fees, and the award is affirmed.

      In appeal No. 13-3108, we affirm. Appeal No. 13-3075 is dismissed.

Appellant’s outstanding motions are denied.


                                               Entered for the Court


                                               Monroe G. McKay
                                               Circuit Judge

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