Wells Fargo Bank West, National Ass'n v. Burns

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-3501
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Wells Fargo Bank West, National *
Association, *
*
Appellee, *
*
v. * Appeal from the United States
* District Court for the District
Kevin E. Burns, * of Minnesota.
*
Appellant, * [UNPUBLISHED]
*
Barbara R. Burns, *
*
Respondent. *
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Submitted: June 4, 2004
Filed: June 9, 2004
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Before MORRIS SHEPPARD ARNOLD, FAGG, and SMITH, Circuit Judges.
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PER CURIAM.
After Wells Fargo Bank West, N.A. (Wells Fargo) brought an action in
Minnesota state court against Kevin Burns, Barbara Burns, and E-Loan, Inc., arising
out of a mortgage dispute, Mr. Burns removed the case to federal court and invoked
the Truth in Lending Act, 15 U.S.C. §§ 1601-1667(e) (TILA) to support the removal.
The district court1 remanded the case to state court based on procedural defects and
lack of subject-matter jurisdiction, awarded attorney’s fees to Wells Fargo, and
denied a recusal motion filed by Mr. Burns. Mr. Burns appeals. Although we do not
have jurisdiction to review the propriety of the remand order, see 28 U.S.C.
§ 1447(d); Things Remembered, Inc. v. Petrarca, 516 U.S. 124, 127-28 (1995), we
affirm the district court’s award of attorney’s fees and its denial of the recusal motion.
Specifically, we find that the district court did not abuse its considerable
discretion in awarding attorney’s fees to Wells Fargo under 28 U.S.C. § 1447(c), see
Hart v. Wal-Mart Stores Inc. Associates’ Health and Welfare Plan, 360 F.3d 674, 677
(7th Cir. 2004) (attorney’s-fees award under § 1447(c) is independently appealable
order); Children’s Broadcasting Corp. v. Walt Disney Co., 357 F.3d 860, 870 (8th
Cir. 2004) (standard of review); Sirotzky v. New York Stock Exch., 347 F.3d 985,
987 (7th Cir. 2003). The removal notice was untimely, see 28 U.S.C. § 1446(b);
Fed. R. Civ. P. 6(a), and the district court lacked subject-matter jurisdiction, as a
federal question did not appear on the face of the complaint and the
complete-preemption doctrine does not apply to claims under the TILA, see
Caterpillar Inc. v. Williams, 482 U.S. 386, 392-93 (1987); Magee v. Exxon Corp.,
135 F.3d 599, 601-02 (8th Cir. 1998). We also find that the district court did not
abuse its discretion in denying the recusal motion. See Bannister v. Delo, 100 F.3d
610, 614 (8th Cir. 1996), cert. denied, 521 U.S. 1126 (1997); United States v.
Johnson, 47 F.3d 272, 276 (8th Cir. 1995) (standard of review).
Accordingly, we affirm.
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1
The Honorable James M. Rosenbaum, Chief Judge, United States District
Court for the District of Minnesota.
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