     Case: 11-30391     Document: 00511634590         Page: 1     Date Filed: 10/17/2011




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                         October 17, 2011

                                     No. 11-30391                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



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.


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 2   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).

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