Block v. Allstate Insurance ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
WILLIAM COURTNEY BLOCK,
individually and as next friend and
guardian of Danielle Block; JODI
BLOCK,
Plaintiffs-Appellants,
v.
ALLSTATE INSURANCE COMPANY, a
corporation doing business in the
State of West Virginia; TIMOTHY L.
POPICG, individually and as an agent
No. 98-2034
of Allstate Insurance Company,
doing business in the State of West
Virginia; GRUMMAN ALLIED
INDUSTRIES, INCORPORATED, formerly
known as Olson Bodies,
Incorporated; J.B.E. OLSON
CORPORATION, d/b/a Grumman
Olson, a division of Grumman
Allied Industries, Incorporated,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of West Virginia, at Wheeling.
Frederick P. Stamp, Jr., Chief District Judge.
(CA-97-145-5)
Argued: December 3, 1999
Decided: December 29, 1999
Before LUTTIG, MOTZ, and TRAXLER, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: Jeffrey Alan Holmstrand, MCDERMOTT & BONEN-
BERGER, P.L.L.C., Wheeling, West Virginia, for Appellants.
Charles Chilton Wise, III, BOWLES, RICE, MCDAVID, GRAFF &
LOVE, P.L.L.C., Fairmont, West Virginia, for Appellees. ON
BRIEF: Gregory A. Gellner, GELLNER LAW OFFICES, Wheeling,
West Virginia, for Appellants. Monica L. Miyashita, BOWLES,
RICE, MCDAVID, GRAFF & LOVE, P.L.L.C., Fairmont, West Vir-
ginia, for Appellees.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Having successfully moved to remand their case to state court,
William, Jodi, and Danielle Block appeal the district court's decision
not to award costs and attorney fees under 28 U.S.C.§ 1447(c).
Because the district court did not abuse its discretion in denying costs
and fees, we affirm.
I.
This case arises out of a vehicle collision in which William Block,
a UPS truck driver, was hit by a motorist whose insurance policy did
not cover the full extent of Block's injuries. Block, along with his
wife, Jodi, and daughter, Danielle, brought suit in state court against
four defendants. The Blocks asserted claims against Grumman Allied
Industries, Inc. and J.B.E. Olson Corporation, the manufacturers of
the UPS truck's seat belt and seating assembly, for products liability,
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negligence, and breach of warranty. The Blocks sued Allstate Insur-
ance, claiming benefits on underinsured motorist coverage--coverage
that Allstate says the Blocks never purchased. In addition, the Blocks
sued their insurance agent, Timothy Popicg, claiming that if their auto
insurance policy in fact did not include underinsured motorist cover-
age, then Popicg was negligent in failing to advise them properly
regarding the purchase of such coverage.
Allstate, with the consent of the other defendants, removed the case
to federal court on the basis of diversity jurisdiction. Allstate
acknowledged the lack of diversity between the Blocks and their
insurance agent, Popicg. Allstate argued, however, that, in order to
defeat federal jurisdiction, the Blocks had fraudulently joined Popicg,
against whom the Blocks had no independent cause of action under
West Virginia law.
The Blocks moved to remand the case to state court and asked the
district court to award them costs and attorney fees incurred in oppos-
ing the removal. In remanding to state court an improperly removed
case, a district court "may require payment of just costs and any
actual expenses, including attorney fees, incurred as a result of the
removal." See 28 U.S.C.A. § 1447(c) (West 1999).
The district court remanded. Finding that under West Virginia law
the Blocks "have at least a possibility of recovery" against Popicg, the
court held that Popicg had not been fraudulently joined. The court
denied costs and fees, however. The court found that such an award
"would not be appropriate in this case." The Blocks appeal the district
court's denial of an award of costs and attorney fees.
II.
Allstate argues, as an initial matter, that we should not hear the
appeal because it was not timely filed.
Under Rule 4(a)(1)(A) of the Federal Rules of Appellate Proce-
dure, notice of appeal must be filed within 30 days after the judgment
or order appealed from is entered. The Blocks filed this appeal 31
days after entry of the order denying costs and fees. However, under
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Rule 58 of the Federal Rules of Civil Procedure, the time period
within which an appeal must be filed under Rule 4(a) does not begin
to run until the order has been entered on a separate document. See
Bankers Trust Co. v. Mallis, 435 U.S. 381, 384-85 (1978). Because
the district court here did not enter its order denying costs and fees
on a separate document, this appeal is not untimely.
It is, if anything, premature. We consider the appeal, however,
because neither party has raised an objection to the form in which the
judgment was entered. See Caperton v. Beatrice Pocahontas Coal
Co., 585 F.2d 683, 691 (4th Cir. 1978).
III.
The removal statute commits the determination of the appropriate-
ness of an award of costs and fees, on remand of an improperly
removed case, to the discretion of the district court. See 28 U.S.C.
§ 1447(c). Here, the district court did not abuse that discretion.
It is not clear whether, under West Virginia law, the Blocks can
assert an independent cause of action against an insurance agent for
allegedly giving them negligent advice regarding the purchase of an
insurance policy. There is no West Virginia case establishing such a
cause of action, and Allstate therefore could legitimately contend, as
it did, that West Virginia law did not support the Blocks' theory of
recovery against Popicg. In light of Allstate's argument, the district
court could certainly have concluded, as it apparently did, that this
was not a case in which "a ``cursory examination would have
revealed' a lack of federal jurisdiction." See In re Lowe, 102 F.3d
731, 733 n.2 (4th Cir. 1996) (quoting Husk v. E.I. Du Pont De
Nemours & Co., 842 F.Supp. 895, 899 (S.D.W.Va. 1994)).
The Blocks maintain that we must at least remand for the district
court to offer further justification for its decision. We are aware of no
case, however, requiring a district court to offer reasons in support of
its decision to deny an award of costs and fees under § 1447(c). We
will not impose such a requirement where, as here, the district court
was well within the discretion granted to it by the removal statute.
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IV.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
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