                                                                                    United States Court of Appeals
                                                                                             Fifth Circuit
                                                                                            F I L E D
                                                   In the                                   August 29, 2003

                          United States Court of Appeals                               Charles R. Fulbruge III
                                                                                               Clerk
                                        for the Fifth Circuit
                                             _______________

                                               m 03-30300
                                             Summary Calendar
                                             _______________




                                               KWEI L. LEE,

                                                                Plaintiff-Appellant,

                                                  VERSUS

                               ADVANCED FRESH CONCEPTS CORP.,

                                                                Defendant-Appellee,



                                      _________________________

                              Appeal from the United States District Court
                                 for the Eastern District of Louisiana
                                           m 02-CV-3830
                                   _________________________



Before SMITH, BARKSDALE, and STEWART,
  Circuit Judges.                                          Kwei Lee appeals the denial of her motion
                                                        for attorney’s fees she sought for er removal.
PER CURIAM:*                                            28 U.S.C. § 1447(c). Finding no abuse of dis-
                                                        cretion, Valdes v. Wal-Mart Stores, Inc., 199
                                                        F.3d 290, 292 (5th Cir. 2000), we affirm.
   *
     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    (...continued)
                           (continued...)               circumstances set forth in 5TH CIR. R. 47.5.4.
    Lee sued Advanced Fresh Concepts Corpo-                 Where a court remands, “[t]here is no auto-
ration (“AFC”) for breach of contract in Loui-           matic entitlement to an award of attorney’s
siana city court, which has jurisdiction over            fees. Indeed, the clear language of the statute
controversies involving less than $20,000. Af-           makes such an award discretionary.” Valdes,
ter discovery, Lee concluded that her damages            199 F.3d at 292. A court should not award
approached $200,000. In September 2002,                  fees when “the defendant had objectively rea-
she sent a demand letter to AFC offering to              sonable grounds to believe the removal was
settle for $100,000. She also wrote that if              legally proper” at the time of removal. Id. at
AFC did not settle, she would transfer the case          293.
to state district court, which has general juris-
diction. When AFC did not respond, Lee sent                 The district court could have concluded
a follow-up letter in October, then transferred          that the removal lacked objectively reasonable
the case in early December. Three weeks                  grounds. This case is nearly indistinguishable
later, AFC removed to federal district court             from Addo, 230 F.3d at 762, in which we held
based on diversity of citizenship.                       that the plaintiff’s post-complaint demand let-
                                                         ter was “other paper” and that the defendant
   Lee moved to remand. The original com-                did not timely remove within thirty days of re-
plaint, necessarily limited to $20,000, did not          ceiving the letter. If anything, Lee’s detailed
satisfy the $75,000 amount-in-controversy re-            and very reasonable three-page demand letter
quirement. 28 U.S.C. § 1332(a). Thus, “the               presented a stronger basis for removal than did
case stated by the initial pleading [was] not            the letter in Addo, which contained two sen-
removable.” 28 U.S.C. § 1446(b). But, “a                 tences and demanded fifty times the defen-
notice of removal may be filed within thirty             dant’s offered settlement. Id. at 760 n.1.
days after receipt by the defendant . . . of other
paper from which it may first be ascertained                AFC tries and fails to distinguish Addo by
that the case . . . has become removable.” Id.           asserting that Addo did not begin in a state
“[A] post-complaint letter, which is not plainly         court of limited jurisdiction. That may or may
a sham, may be ‘other paper’ under § 1446-               not be trueSSthe Addo opinion does not spec-
(b).” Addo v. Globe Life & Accident Ins. Co.,            ifySSbut we cannot see what difference it
230 F.3d 759, 762 (5th Cir. 2000) (footnote              makes. Lee stated in the letter that she in-
omitted). The court therefore held that the              tended to transfer the case unless it was set-
case became removable when Lee sent the de-              tled. Moreover, she sent the follow-up letter
mand letter, but the court remanded because              within the original thirty-day window.
AFC’s removal three months later was un-
timely.                                                     AFC also complains of being put between
                                                         the rock of a premature removal and the hard
   Lee then moved for attorney’s fees. The               place of an untimely removal. We do not sym-
court denied the motion, concluding that                 pathize. Our caselaw permits removal based
AFC’s “removal rest[ed] on a colorable claim             on “other paper” even without a formally
regarding the state of the facts and the law.”           amended complaint,1 just as it protects defen-
Lee appeals that order but not the remand
order.
                                                            1
                                                                See, e.g., S.W.S. Erectors v. Infax, Inc., 72
                                                                                     (continued...)

                                                     2
dants from a fee award where the plaintiff is             AFFIRMED.
partially responsible for an improper removal.2
In short, AFC should have heard § 1446(b)’s
thirty-day clock ticking when it received Lee’s
demand letter.

   Nevertheless, we are reluctant to reverse
such a highly discretionary order. “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 re-
moval was improper is not one of them.” Val-
des, 199 F.3d at 292. Although AFC has not
persuasively distinguished Addo, it at least at-
tempted a distinction rather than, say, arguing
that Addo was wrongly decided.3

   Furthermore, we acknowledge that Addo
invited this strategy: It held that a good-faith
post-complaint letter “may be ‘other paper’
under § 1446(b),” not that such a letter neces-
sarily is “other paper.” AFC smartly seized
this small difference and offered genuine if
unsuccessful distinctions.

   The court reasonably could have ruled ei-
ther way on Lee’s motion, but § 1447(c) is
discretionary, and the exercise of that discre-
tion rests with the district court. We therefore
will not reverse its decision that AFC had ob-
jectively reasonable grounds for the removal
and for its concomitant denial of Lee’s motion
for attorney’s fees.


(...continued)
F.3d 489, 494 (5th Cir. 1996).
   2
     See, e.g., Avitts v. Amoco Prods. Co., 111
F.3d 30, 32-33 (5th Cir. 1997).
   3
     See Garcia v. Amfels, Inc., 254 F.3d 585, 588
(5th Cir. 2001) (affirming award of attorney’s fees
under § 1447(c) where defendant only argued that
the controlling case was wrongly decided).

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