                                                                                  United States Court of Appeals
                                                                                           Fifth Circuit
                                                                                         F I L E D
                                                   In the                                   July 9, 2007
                       United States Court of Appeals                                Charles R. Fulbruge III
                                       for the Fifth Circuit                                 Clerk
                                             _______________

                                               m 06-31297
                                             Summary Calendar
                                             _______________




                           DR. BEVERLY B. YOUNT, M.D., A.P.M.C.,

                                                                 Plaintiff-Appellant,

                                                  VERSUS

                                LAFAYETTE INSURANCE COMPANY,

                                                                 Defendant-Appellee.


                                      _________________________

                              Appeal from the United States District Court
                                 for the Eastern District of Louisiana
                                          m 2:06-CV-7382
                                ______________________________



Before SMITH, WIENER, and OWEN,                            Beverly Yount successfully moved to re-
  Circuit Judges.                                       mand her case against Lafayette Insurance
                                                        Company (“Lafayette”) to state court; she ap-
PER CURIAM:*                                            peals the denial of attorney’s fees. Finding no
                                                        abuse of discretion, we affirm.

                                                                             I.
   *                                                        Yount’s office complex was damaged by
     Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be pub-
lished and is not precedent except under the limited
                                                            *
circumstances set forth in 5TH CIR. R. 47.5.4.               (...continued)
Hurricane Katrina, and she sued Lafayette in            provides for removal if
state court to recover insurance proceeds al-
legedly due under the business interruption                the defendant is a party to an action which
provisions of her policy. Lafayette removed                is or could have been brought, in whole or
to federal district court, arguing that jurisdic-          in part, under section 1369 in a United
tion was proper pursuant to the Multiparty,                States district court and arises from the
Multiforum Trial Jurisdiction Act, 28 U.S.C.               same accident as the action in State court,
§ 1369. That court granted Yount’s motion to               even if the action to be removed could not
remand, finding that Hurricane Katrina was                 have been brought in a district court as an
not an “accident” for purposes of § 1369.                  original matter.
Yount requested attorney’s fees on the ground
that Lafayette’s removal had been untimely                  Lafayette claimed that Abadie could have
and in bad faith.                                       been brought pursuant to § 1369 and that it
                                                        arose out of the same accident (Hurricane Ka-
                       II.                              trina) as Yount’s lawsuit, so removal was ap-
   We review the denial of a request for attor-         propriate. In her request for attorney’s fees
ney’s fees for abuse of discretion. Avitts v.           Yount pointed to the time limit provision of
Amoco Prod. Co., 111 F.3d 30, 32 (5th Cir.              § 1441(e)(1), which states that
1997). “Absent unusual circumstances, courts
may award attorney’s fees under [28 U.S.C.]                a notice of removal may also be filed before
§ 1447(c) only where the removing party                    trial of the action in State court within 30
lacked an objectivelyreasonable basis for seek-            days after the date on which the defendant
ing removal. Conversely, when an objectively               first becomes a party to an action under
reasonable basis exists, fees should be denied.”           section 1369 in a United States district
Martin v. Franklin Capital Corp., 546 U.S.                 court that arises from the same accident as
132, 141 (2005) (citing Hornbuckle v. State                the action in State court, or at a later time
Farm Lloyds, 385 F.3d 538, 541 (5th Cir.                   with leave of the district court.
2004); Valdes v. Wal-Mart Stores, Inc., 199
F.3d 290, 293 (5th Cir. 2000)). We do not                   It is not disputed that Lafayette’s removal
consider Lafayette’s motive in removing; we             claim was within this time frame in reference
look only to whether it had an objectively              to Abadie. Yount alleges, however, that ap-
reasonable basis for the removal. Valdes, 199           proximately three months earlier Lafayette had
F.3d at 292.                                            been named as a defendant in another suit aris-
                                                        ing out of Hurricane Katrina that could have
    Yount claims there is no objectively rea-           been brought under § 1369, Berthelot v. Boh
sonable basis on which Lafayette’s motion to            Bros. Constr. Co., L.L.C. Yount’s suit was
remove could be considered timely. Lafayette            pending at the time that Lafayette was a defen-
alleged in its notice of removal that it was also       dant in Berthelot, and thus she claims that the
a defendant in another case pending in the              thirty-day time period during which Lafayette
Eastern District of Louisiana, Abadie v. Aegis          could remove her suit pursuant to § 1441-
Sec. Ins. Co., that arose out of Hurricane Ka-          (e)(1) had expired at the time that Lafayette
trina and that could have been brought pursu-           removed and that there was no objectively
ant to § 1369. Lafayette based its motion to            reasonable basis for asserting that the removal
remove on 28 U.S.C. § 1441(e)(1)(B), which              was timely.

                                                    2
   Our review turns entirely on an objective
consideration of the merits of Lafayette’s case
at the time of removal. Valdes, 199 F.3d at
292. The question is the interpretation of the
limitations period of § 1441(e)(1) if the defen-
dant has been named in multiple § 1369 suits.
Both parties concede that no court has ad-
dressed this issue.

    Lafayette correctly points out that under
the language of the statute, viewed in isolation,
its removal was timelySSit removed within
thirty days of first becoming a defendant in
Abadie, which could have been brought under
§ 1369. Yount points to the word “first,”
arguing that the thirty-day limitation period
was tied to Berthelot, the first of the two
§ 1369 cases at issue, and that it would make
no sense to permit the limitations period to
start anew if a second § 1369 suit is brought
against a defendant after the initial limitations
period has expired. We need not, and do not,
express an opinion about which of these inter-
pretations is correct except to say that Lafay-
ette could conclude from the language of the
statute that its position was reasonable, espe-
cially in light of the lack of any judicial prece-
dent. Thus, the district court did not abuse its
discretion.

   AFFIRMED.




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