               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 06a0469n.06
                             Filed: July 5, 2006

                                          No. 05-5795

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT


SAEID SHAFIZADEH,                               )
                                                )
       Plaintiff-Appellant,                     )
                                                )
v.                                              )   ON APPEAL FROM THE UNITED
                                                )   STATES DISTRICT COURT FOR THE
BELLSOUTH MOBILITY, LLC, d/b/a                  )   WESTERN DISTRICT OF KENTUCKY
CINGULAR WIRELESS,                              )
                                                )
       Defendant-Appellee.                      )




       Before: BOGGS, Chief Judge; KEITH and SUTTON, Circuit Judges.


       PER CURIAM. In this appeal, Saeid Shafizadeh primarily argues that the district court erred

in denying his request for attorney fees under 28 U.S.C. § 1447(c). We affirm.


                                               I.


       BellSouth Mobility provided Shafizadeh with mobile-telephone service during the summer

of 2003. When Shafizadeh paid his June 2003 invoice, BellSouth applied the payment to a different

customer’s account, prompting the telephone company to place Shafizadeh’s account into past-due

status. Understandably upset, Shafizadeh contacted the company on a number of occasions to

inform it that he had paid the June invoice. Over the course of this billing dispute, BellSouth

suspended Shafizadeh’s account for a total of 80 days.
No. 05-5795
Shafizadeh v. BellSouth Mobility

         In November 2004, Shafizadeh, an attorney, filed a lawsuit in Kentucky state court seeking

(1) “general, presumed and compensatory damages,” (2) “direct, incidental and consequential

damages,” (3) “attorneys’ fees and costs,” (4) “punitive damages,” and (5) an injunction barring

BellSouth from “using, disclosing, sharing and disseminating” his “private information[,] including

his social security number,” and compelling BellSouth to “redact [his] private information from its

record[s].” JA 27–28.


         Shafizadeh’s complaint (in truth, his amended complaint) referred to federal law in the

following manner:


                32. On information and belief, [BellSouth] has entered plaintiff’s private
         information including his social security number in its computer system that is
         accessible by, and has shared the same with a large number of [BellSouth] employees
         and other firms, the computer system is susceptible to hacking from any remote
         computer terminal.
                 33. Pursuant to provisions of . . . Title 42 United States Code (U.S.C.)
         § 405(c)(2)(C)(viii)(I), social security account numbers and related records that are
         obtained and maintained, shall be confidential and shall not be disclosed. The policy
         leading to the enactment of the statute was articulated in Amy Boyer’s Law . . . [and]
         it was the Congress’ findings that the inappropriate display, sale or use of social
         security number[s] is a significant factor in a growing range of illegal activities . . .
         .
                34. On information and belief, the simultaneous disclosure of plaintiff’s name
         and private information including social security number has exposed plaintiff to a
         heightened risk of identity theft and other forms of fraud.


JA 23.


         On December 7, 2004, BellSouth removed the case to federal court on diversity and federal-



                                                  -2-
No. 05-5795
Shafizadeh v. BellSouth Mobility

question grounds.


       On January 5, 2005, Shafizadeh asked the federal court to remand the case to state court.

In the memorandum supporting his remand request, Shafizadeh clarified that his complaint did not

invoke a cause of action under 42 U.S.C. § 405(c) but merely referenced the provision to

demonstrate “the concerns that Congress has expressed for inappropriate display, sale or use of

social security number[s].” JA 271. He also clarified that his complaint alleged only “common law

and state law claims against BellSouth.” Id. He later stipulated that the amount in controversy did

not exceed $75,000. The district court remanded the case to state court, noting that BellSouth “has

not carried its burden of establishing that this action meets the amount-in-controversy requirements

of 28 U.S.C. § 1332.” JA 334.


       In addition to asking the court to remand the case, Shafizadeh asked the court to award him

the attorney fees he had incurred in responding to the removal. See 28 U.S.C. § 1447(c). The court

denied Shafizadeh’s fee request because he had “presented no argument persuading th[e] court to

exercise its discretion to impose fees and costs.” JA 386.


                                                II.


       After a case has been removed, § 1447(c) provides that “[i]f at any time before final

judgment it appears that the district court lacks subject matter jurisdiction, the case shall be

remanded. An order remanding the case may require payment of just costs and any actual expenses,

including attorney fees, incurred as a result of the removal.” In deciding whether to grant attorney

                                               -3-
No. 05-5795
Shafizadeh v. BellSouth Mobility

fees, courts “focus on the objective propriety of the removal attempt.” Bartholomew v. Town of

Collierville, Tenn., 409 F.3d 684, 687 (6th Cir. 2005) (internal quotation marks omitted). An award

of fees under § 1447(c) thus “is inappropriate where the defendant’s attempt to remove the action

was fairly supportable, or where there has not been at least some finding of fault with the

defendant’s decision to remove.” Bartholomew, 409 F.3d at 687 (internal quotation marks omitted

and emphasis removed). To the same effect, the Supreme Court has held that “absent unusual

circumstances, attorney’s fees should not be awarded when the removing party has an objectively

reasonable basis for removal.” Martin v. Franklin Capital Corp., 126 S. Ct. 704, 708 (2005).


       Because the decision to award fees under § 1447(c) lies “within the sound discretion of the

district court,” Bartholomew, 409 F.3d at 686 (internal quotation marks omitted); see also Martin,

126 S. Ct. at 708–09, we review the district court’s attorney-fee decision for an abuse of discretion,

Bartholomew, 409 F.3d at 686. A district court “abuses its discretion . . . where the defendant’s

argument[s] for removal [were] devoid of even fair support.” Id. at 687 (internal quotation marks

omitted).


       The district court did not abuse its discretion here. It is well-covered ground that a state-

court defendant may remove a “civil action” to federal court if the plaintiff “original[ly]” could have

filed the action in federal court. 28 U.S.C. § 1441(a). And a claimant may file a complaint in

federal court when it presents a “federal question,” see id. § 1331, or involves diverse parties and

satisfies the amount-in-controversy requirement, see id. § 1332.




                                                 -4-
No. 05-5795
Shafizadeh v. BellSouth Mobility

        BellSouth had a good-faith basis for concluding that Shafizadeh’s complaint implicated the

court’s federal-question and diversity jurisdiction. As to federal-question jurisdiction, the complaint

said that “[p]ursuant to provisions of [ ] Title 42 United States Code (U.S.C.) § 405(c)(2)(C)(viii)(I),

social security account numbers and related records that are obtained and maintained, shall be

confidential and shall not be disclosed.” JA 23 (emphasis added). The complaint proceeded to

allege that “the simultaneous disclosure of [Shafizadeh’s] name and private information including

social security number has exposed [him] to a heightened risk of identity theft and other forms of

fraud.” Id. The complaint’s reference to § 405, its use of the mandatory term “shall” and the

implication that BellSouth had violated § 405—otherwise, why invoke it in the complaint?—all

provided good-faith support for BellSouth’s decision to remove the case on federal-question

grounds.


        Shafizadeh responds that BellSouth knew that § 405 could not provide the basis for a viable

claim against it based on the defenses to such a claim that BellSouth included in its answer. That

Shafizadeh asserted a weak claim (or even a fatally flawed claim) under § 405, however, does not

prove that BellSouth improperly removed the claim. See Cromwell v. Equicor-Equitable HCA

Corp., 944 F.2d 1272, 1277 (6th Cir. 1991) (“That a complaint ultimately fails to state a claim upon

which relief can be granted is of no relevance to the question of subject matter jurisdiction.”).


        Shafizadeh next argues that because he did not exhaust his administrative remedies, “there

was no basis for the district court to exercise jurisdiction” over an alleged violation of § 405.

Shafizadeh Br. at 19. This argument again goes to whether the § 405 claim was a strong one, not

                                                 -5-
No. 05-5795
Shafizadeh v. BellSouth Mobility

to whether BellSouth could rely on it in good faith to remove the action. That the removal was later

deemed inappropriate (whether due to Shafizadeh’s admissions and stipulations or to some other

factor) does not show that the district court abused its discretion in denying fees and costs. See

Martin, 126 S. Ct. at 709–11 (holding that attorney fees under § 1447(c) are not awarded

automatically when a case is remanded because removal was improper); Valdes v. Wal-Mart Stores,

Inc., 199 F.3d 290, 292 (5th Cir. 2000) (“Although from time to time factual situations may arise

in which the district court is required to award attorney’s fees, the mere determination that removal

was improper is not one of them.”).


       In addition to having reasonable grounds for treating the complaint as presenting a well-

pleaded federal question, BellSouth had reasonable grounds for concluding that the complaint

implicated the court’s diversity jurisdiction. Shafizadeh concedes that the parties are “citizens of

different States.” 28 U.S.C. § 1332(a)(1). And BellSouth had ample grounds for construing the

complaint to satisfy the $75,000 amount-in-controversy requirement. See id. § 1332(a). At the time

of removal, Shafizadeh’s complaint sought not only “general, presumed and compensatory

damages,” JA 27, but also “punitive damages against [BellSouth] in such amounts as . . . necessary

to deter and punish [BellSouth] and to ensure that it would not engage in such conduct in the future,”

id. at 28. Not until after removal did Shafizadeh stipulate that he sought less than $75,000. The

request for punitive and compensatory damages plainly made it “objectively reasonable” for

BellSouth to remove the case.




                                                -6-
No. 05-5795
Shafizadeh v. BellSouth Mobility

       At oral argument, Shafizadeh attempted to rebut this conclusion by arguing that BellSouth

knew he was seeking less than $75,000 because settlement discussions pre-dating the removal

allegedly concerned an amount that was well below this figure. The proposed settlement, however,

was just that—a proposed settlement. That the settlement was never consummated and that

settlement discussions at any rate are meant to be confidential suffice to defeat this argument.


       On appeal, Shafizadeh separately argues that the district court erred in declining to remove

all references to his personal information from the district court record, including information that

the local court rules did not require the judge to remove. We need not address this argument because

the parties have agreed to approach the district court to resolve Shafizadeh’s concern after this

appeal. See BellSouth Br. at 21 (noting that it has no objection to removing the requested

information from the court records); JA 363 (proposed order) (stating that Shafizadeh’s “partially

displayed date of birth and Social Security number” should be fully redacted from various

documents in the record).


                                                III.


       For these reasons, we affirm the judgment of the district court, though this affirmance is

without prejudice to the parties requesting that the court replace the documents in the record

containing Shafizadeh’s personal information with fully redacted versions of those documents.




                                                -7-
