           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit
                                                                          F I L E D
                                                                         September 25, 2007
                                     No. 06-21001
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk


MARIA DEL CARMEN GUILBOT SERROS DE GONZALEZ, Individually
and as Independent Administrator of the Estate of Miguel Angel Luis
Gonzalez y Vallejo; LUIS AMADEO GONZALEZ GUILBOT; GUILLERMO
GONZALEZ GUILBOT; CARMEN ISABEL GONZALEZ GUILBOT;
GERARDO GONZALEZ GUILBOT; JAVIER GONZALEZ GUILBOT;
MADEIRA INTERNATIONAL LTD; FRANCEVILLE INTERNATIONAL
LTD, ARKHANGEL INTERNATIONAL LTD,

                                                  Plaintiffs - Appellees,
v.

CARLOS ALBERTO GONZALEZ GUILBOT,

                                                  Defendant - Appellant.



                   Appeal from the United States District Court
                        for the Southern District of Texas
                                  4:06-CV-3686


Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
       This is an appeal from an order of remand entered pursuant to 28 U.S.C.
§ 1447(c) for lack of subject matter jurisdiction. The defendant-appellant, Carlos


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                  No. 06-21001

Alberto Gonzalez Guilbot, does not challenge the substance of the remand order.
Instead, Guilbot argues that the remand procedure was defective because
§ 1447(c) provides that “[a] certified copy of the order of remand shall be mailed
by the clerk to the clerk of the State court,” but here, instead of mailing the
remand order, the clerk issued a certified copy of the remand order to plaintiffs’
counsel so that counsel could hand deliver the order to the state court and
expedite the remand. Guilbot also argues that the district court’s award of
attorneys fees was an abuse of discretion.
      The record contains no indication that Guilbot objected to the remand
procedures that the clerk used in this case. Had Guilbot presented to the district
court his argument that the remand procedures were defective, the district court
could have easily resolved this issue by instructing the clerk of court to mail a
copy of the remand order to the clerk of the state court in addition to providing
plaintiffs’ counsel with a copy of the order for hand delivery. Because Guilbot
has failed to establish that this issue was properly presented to the district
court, it is deemed waived. See Patterson v. Dean Morris, L.L.P., 448 F.3d 736,
741 n.5 (5th Cir. 2006) (“Because [the defendants] offer no evidence that they
presented this specific claim to the district court, we consider it waived on
appeal.”).
      Guilbot contends that his claim that the remand procedures were defective
touches on issues of subject matter jurisdiction and therefore cannot be waived.
He appears to rely on the well-settled principle that litigants can never consent
to federal subject matter jurisdiction, and the lack of subject matter jurisdiction
is a defense that cannot be waived. Coury v. Prot, 85 F.3d 244, 248 (5th Cir.
1996); see also In re McCloy, 296 F.3d 370, 373 (5th Cir. 2002) (“[A] lack of
subject matter jurisdiction may be raised at any time, and we can examine the
lack of subject matter jurisdiction for the first time on appeal.”). This principle,
however, does not apply here. Guilbot does not assert the lack of subject matter

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jurisdiction as a defense. On the contrary, he argues that this Court retains
jurisdiction over this matter because the remand was defective, and therefore
jurisdiction was never properly reinstated in the state court. Although “we must
always be vigilant to ensure that we have subject matter jurisdiction . . .[,] this
discipline is separate from our declining to address untimely raised legal
theories in support of that jurisdiction.” Ceres Gulf v. Cooper, 957 F.2d 1199,
1207 n.16 (5th Cir. 1992). As presented to this Court, the appellant’s argument
that the remand procedures were defective can be waived, and it was.
      In addition, even assuming that Guilbot preserved this argument, we
nonetheless would not consider it. We lack jurisdiction on an appeal from the
district court’s remand order to consider a challenge to the clerk’s compliance
with the remand procedures in § 1447(c). Section 1447(d) states in relevant part:
“An order remanding a case to the State court from which it was removed is not
reviewable on appeal or otherwise . . . .” We have “recognized that § 1447(d)
intends to insulate from appellate review a district court’s determinations as to
its subject matter jurisdiction and compliance with remand procedures.”
Tramonte v. Chrysler Corp., 136 F.3d 1025, 1027 (5th Cir. 1998) (emphasis
added); see also Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336, 351
(1976) (“[T]o prevent delay in the trial of remanded cases by protracted litigation
of jurisdictional issues, Congress immunized from all forms of appellate review
any remand order issued on the grounds specified in § 1447(c), whether or not
that order might be deemed erroneous by an appellate court.” (citation omitted)).
Applying § 1447(d), we lack jurisdiction to review the particular certification and
mailing procedures authorized by the district court and employed by the clerk
in this case.
      We do, however, have jurisdiction to review the district court’s award of
attorneys fees under § 1447(c). See Hornbuckle v. State Farm Lloyds, 385 F.3d
538, 541 (5th Cir. 2004). We review a district court’s award of attorneys fees for

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abuse of discretion and the factual findings underlying a fee award for clear
error. Id.; League of United Latin Am. Citizens No. 4552 (LULAC) v. Roscoe
Indep. Sch. Dist., 119 F.3d 1228, 1232 (5th Cir. 1997). In the context of remand
orders, however, “[f]ees should only be awarded if the removing defendant lacked
‘objectively reasonable grounds to believe the removal was legally proper.’”
Hornbuckle, 385 F.3d at 541 (quoting Valdes v. Wal-Mart Stores, Inc., 199 F.3d
290, 293 (5th Cir. 2000)). In this case, the district court correctly concluded that
Guilbot had no objectively reasonable basis for removal. Moreover, the district
court’s factual findings with respect to the amount of the fee award were not
clearly erroneous. Therefore, we conclude that the district court did not abuse
its discretion in awarding $7,500 to the plaintiffs-appellants.
      For these reasons, we AFFIRM.




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