Johnson et al v. Petsmart Inc et al

Filing 21

ORDER: IT IS HEREBY ORDERED that Plaintiff's 8 Motion to Remand is GRANTED IN PART to the extent that the case is remanded to state court and DENIED IN PART to the extent that Plaintiff requests an award for costs and expenses, including atto rney's fees. IT IS FURTHER ORDERED that the case is remanded to the Civil District Court for Parish of Orleans, State of Louisiana. Signed by Judge Nannette Jolivette Brown on 1/25/2017. (mmv) (Additional attachment(s) added on 1/25/2017: # 1 Remand Letter) (mmv).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JOHNNY JOHNSON

CIVIL ACTION

VERSUS

CASE NO. 16-3448

PETSMART, INC., et al.

SECTION: “G”(1)
ORDER

Before the Court is Plaintiff Johnny Johnson’s (“Plaintiff”) “Motion to Remand and for
Costs and Attorney’s Fees.”1 Having considered the motion, the memoranda in support and in
opposition, the record, and the applicable law, the Court will grant the motion and remand this
case to the Civil District Court for the Parish of Orleans, State of Louisiana.
I. Background
A.

Factual Background
According to the petition, on May 3, 2015, Plaintiff slipped on a puddle and fell in a

PetSmart store in Orleans Parish.2 Plaintiff alleges that he sustained injuries to his “neck, back,
head, and other parts of his body” as a result of the fall.3 Plaintiff further alleges that Defendant
PetSmart, Inc. (“Defendant”) was negligent in failing to maintain safe premises and failing to warn
customers of hazardous conditions.4 Plaintiff claims that as a result of the accident, he sustained

1

Rec. Doc. 8.

2

Rec. Doc. 1-1 at 4.

3

Id.

4

Id. Plaintiff also names “John Doe,” an unknown PetSmart employee who Plaintiff alleges spilled water on
the floor while retrieving fish from a tank, as a fictitious defendant.

1

“general and special damages, including but not limited to damages for pain and suffering, mental
anguish, and loss of enjoyment of life, and medical expenses.”5
B.

Procedural Background
Plaintiff filed the petition in this matter on March 14, 2016, in the Civil District Court for

Orleans Parish.6 On April 19, 2016, Defendant filed a notice of removal.7 On April 21, 2016, the
Court ordered Defendant to submit additional briefing regarding the amount in controversy, 8
which Defendant filed on May 4, 2016.9 On May 4, 2016, Plaintiff also filed the instant motion to
remand.10 Defendant filed an opposition on May 27, 2016.11 On November 17, 2016, with leave
of Court, Defendant filed a supplemental memorandum in opposition to the motion.12
II. Parties= Arguments
A.

Defendant’s Notice of Removal
In its Notice of Removal, Defendant asserts that on April 4, 2016, it first received notice

that this matter had been filed in state court, and timely removed it to this Court on April 19,
2016. 13 Defendant contends that jurisdiction exists under 28 U.S.C. § 1332, because there is

5

Id.

6

Id. at 1.

7

Rec. Doc. 1.

8

Rec. Doc. 5.

9

Rec. Doc. 6.

10

Rec. Doc. 8.

11

Rec. Doc. 11.

12

Rec. Doc. 20.

13

Rec. Doc. 1 at 1.

2

complete diversity of citizenship and the amount in controversy exceeds $75,000.14 Defendant
alleges that Plaintiff is a citizen of Louisiana and Defendant is a Deleware corporation with its
principal place of business in Arizona; thus, Defendant avers that there is diversity of citizenship.15
Defendant notes that John Doe, a factiously named Defendant, was not properly joined in the
action and that his citizenship is to be disregarded for determining complete diversity of
citizenship.16
Defendant further states that the jurisdictional amount in controversy is met.17 Defendant
represents that Plaintiff alleges that he slipped “in a water accumulation” at a PetSmart store and
suffered injuries to his “neck, back, head, and other parts of his body.”18 Defendant argues that
Plaintiff failed to include an allegation to establish the lack of federal jurisdiction in his original
petition and that there is a presumption of finding that the amount in controversy is met as a
result.19 Thus, Defendant argues that the amount in controversy exceeds $75,000, and removal is
proper.20

B.

Defendant’s Supplemental Memorandum on the Amount in Controversy
In its supplemental memorandum in support of the jurisdictional amount in controversy,

Defendant argues that under Louisiana Code of Civil Procedure article 893, Plaintiff failed to

14

Id. at 2.

15

Id.

16

Id. (citing 28 U.S.C. § 1441(b)(1)).

17

Id. at 3.

18

Id. (citing Rec. Doc. 1-1 at 1).

19

Id.

20

Id.

3

include a general allegation in his original petition that the value of his claim is less than the amount
required for federal diversity jurisdiction. 21 Defendant asserts that this failure alone stands as
evidence that the amount in controversy exceeded $75,000 at the time of removal.22 Defendant
represents that Plaintiff alleges injuries to his neck, back, head, and other parts of his body and
seeks damages for pain and suffering, mental anguish, and loss of enjoyment of life and medical
expenses.23 Defendant argues that it is facially apparent that Plaintiff’s injuries exceed $75,000
and that the Fifth Circuit has found the amount in controversy requirement to be met in cases where
plaintiffs had alleged injuries similar to Plaintiff’s alleged injuries in this case.24 Defendant also
contends that it indicated to Plaintiff’s counsel that it would consent to remand if Plaintiff
stipulated that damages did not exceed $75,000 but that Plaintiff refused to stipulate.25 Finally,
Defendant asserts that the Court should allow limited discovery related to the amount in
controversy before issuing a final decision on jurisdiction.26
C.

Plaintiff’s Arguments in Support of the Motion to Remand
In his motion to remand, Plaintiff argues that the amount in controversy requirement for

diversity jurisdiction is unmet in this case and that the Court lack subject matter jurisdiction as a
result. 27 Plaintiff asserts that the amount in controversy does not exceed $75,000 and that

21

Rec. Doc. 6 at 3.

22

Id.

23

Id. at 4.

24
Id. (citing Hernandez v. USA Hosts, Ltd., 418 Fed. App’x 293 (5th Cir. 2011); Gebbia v. Wal-Mart Stores,
Inc., 233 F.3d 880, 881 (5th Cir. 2000)).
25

Id. at 6.

26

Id. at 7.

27

Rec. Doc. 8-2 at 1.

4

“Defendants’ mere recitation of [Plaintiff’s] Petition for Damages does not demonstrate that the
amount in controversy exceeds $75,000.”28 Furthermore, Plaintiff asserts that it is not apparent
from the face of the petition that his claims exceed $75,000.29
Plaintiff contends that the Fifth Circuit requires a defendant seeking removal to federal
court to prove the amount in controversy by either demonstrating that the claims are likely above
$75,000 or by setting forth the facts in controversy that support a finding of the requisite amount.30
Here, Plaintiff argues, Defendants have failed to do either.31 According to Plaintiff, his allegations
of general pain and suffering and his short list of physical injuries are insufficient on their face to
meet the Fifth Circuit’s “facially apparent” standard, because “they lack any objectively
quantifiable element.”32
Plaintiff contends that there is no presumption in favor of federal jurisdiction under any
circumstances, as Defendant suggests.33 According to Plaintiff, Defendant is correct that specific
monetary damages shall be included in the prayer for relief if necessary to establish a lack of
federal jurisdiction.34 However, Plaintiff argues, the burden of proving federal jurisdiction rests
with the party seeking it, and that burden is not satisfied merely by filing a notice of removal.35

28

Id. at 2 (citing Rec. Doc. 1 at 2).

29

Id. at 3.

30

Id. at 2 (citing Gebbia v. Wal-Mart Stores, Inc., 233 F.3d 880, 882 (5th Cir. 2000)).

31

Id.

32

Id. at 4.

33

Id. (citing Rec. Doc. 1 at 2).

34

Id. (citing La. Code Civ. P. art. 893(A)(1)).

35

Id. at 4 (citing McNutt v. General Motors Acceptance Corp. of Indiana, 298 U.S. 178, 189 (1936)).

5

Plaintiff next argues that he never refused to stipulate to damages post removal.36 Even if
he had refused to do so, however, Plaintiff argues that a stipulation as to the amount in controversy
made after removal is irrelevant to a determination of the amount in controversy at the time of
removal. 37 Defendant, Plaintiff argues, improperly submits evidence related to a conversation
regarding Plaintiff’s willingness to stipulate to damages, which took place two days after
removal.38
Finally, Plaintiff argues that he is entitled to costs and actual expenses, including attorney’s
fees.39 Plaintiff argues that the Court may award just costs and actual expenses if it finds that the
removing party lacked an objectively reasonable basis for removal. 40 Here, Plaintiff argues,
Defendants have misinterpreted Fifth Circuit jurisprudence to assert a presumption in favor of a
finding that the jurisdictional amount in controversy is met, but no such presumption exists.41
According to Plaintiff, Defendant’s misplaced reliance on a non-existent legal theory, failure to
carry the burden of proof, and the submission of irrelevant evidence all render Defendants’ attempt
to remove the case improper, and attorney’s fees and costs are warranted.42
C.

Defendant’s Arguments in Opposition to Remand
In its opposition to Plaintiff’s motion to remand, Defendant argues that Plaintiff’s state

36

Id. at 5.

37

Id.

38

Id.

39

Id. at 6.

40

Id. (citing Howard v. St. Germain, 599 F.3d 455, 457 (5th Cir. 2010)).

41

Id.

42

Id.

6

court petition does not include any general allegation to establish the lack of federal jurisdiction
due to insufficiency of damages as “required” by Louisiana Code of Civil Procedure Article 893.43
Defendant asserts that the lack of such an allegation is an important consideration supporting an
amount in controversy in excess of $75,000.44 Defendant further asserts that district courts in
Louisiana have determined that jurisdiction exists where a plaintiff did not include such an
allegation.45
Defendant next asserts that Plaintiff’s case is analogous to other decisions where federal
jurisdiction was found. 46 Defendant avers that, although Plaintiff asserts that Defendant
misrepresents the conversation regarding stipulation of damages between Defendant and
Plaintiff’s counsel, Plaintiff does not provide an explanation as to how the conversation differed.47
Moreover, Defendant argues that despite Plaintiff’s arguments to the contrary, a plaintiff’s postremoval refusal to stipulate that his damages do not exceed $75,000 constitutes evidence that the
true amount in controversy exceeds the amount required for diversity jurisdiction. 48 Finally,
Defendant argues that an award of costs and expenses must be denied, because attorney’s fees
should only be awarded where the removing party lacked an objectively unreasonable basis for

43

Rec. Doc. 11 at 3 (citing La. Code Civ. P. art. 893(A)(1)).

44

Id.

45

Id. at 3–4 (citing Bruce v. Fisher, No. 06-0840, 2006 WL 2505908, at * 1 (W.D. La. July 13, 2006);
Treqkina Bannister v. ACE American Ins. Co., et al., No. 16-2830, 2016 WL 2347861, at 2 n.1 (E.D. La. May 4,
2016)).
46

Id. at 5 (citing Hernandez v. USA Hosts, Ltd.; Gebbia v. Wal-Mart Stores, Inc.).

47

Id. at 6.

48

Id. at 6–7 (citing Broadway v. Wal-Mart Stores, Inc., No. 00-1893, 2000 WL 1560167, at *2 (E.D. La.
Oct. 18, 2000)).

7

seeking removal, which Defendant asserts is not the case here.49
D.

Defendant’s Supplemental Memorandum in Further Opposition to Remand
In its supplemental memorandum, Defendant represents that the parties agreed to begin

conducting discovery in this case and that Plaintiff’s written discovery responses indicate that he
will not stipulate that the value of his damages is less than $75,000.50 Defendant also represents
that the medical bills that have been produced in discovery thus far total almost $20,000. 51
Defendant asserts that these bills do not include EMS bills, pharmacy bills, or specialist provider
bills.52 Thus, Defendant argues that the records that have been produced “clearly demonstrate”
that the amount in controversy exceeds $75,000. 53 According to Defendant, these records
combined with Plaintiff’s failure to stipulate provide support for a finding of subject matter
jurisdiction over this case.54
III. Law and Analysis
A.

Legal Standard
A defendant may remove a state civil court action to federal court if the federal court has

original jurisdiction over the action.55 A federal court has subject matter jurisdiction over an action
“where the matter in controversy exceeds the sum or value of $75,000” and the action “is between

49

Id. at 8 (citing Martin v. Franklin Capital Corp., 546 U.S. 132, 136 (2005)).

50

Rec. Doc. 20 at 2–3.

51

Id. at 6.

52

Id.

53

Id.

54

Id.

55

28 U.S.C. § 1441(a); Syngenta Crop Prot., Inc. v. Henson, 537 U.S. 28, 34 (2002).

8

citizens of different states.”56 “When removal is based on diversity of citizenship, diversity must
exist at the time of removal.”57 The removing party bears the burden of demonstrating that federal
jurisdiction exists by a preponderance of the evidence.58 Subject matter jurisdiction cannot be
waived by the parties’ conduct or consent.59 “If at any time before final judgment it appears that
the district court lacks subject matter jurisdiction, the case shall be remanded.”60
In assessing whether removal was appropriate, the Court is guided by the principle,
grounded in notions of comity and the recognition that federal courts are courts of limited
jurisdiction, that “removal statute[s] should be strictly construed in favor of remand.”61 Remand
is appropriate if the Court lacks subject matter jurisdiction, and “doubts regarding whether removal
jurisdiction is proper should be resolved against federal jurisdiction.”62 A removing defendant’s
burden of showing that the amount in controversy is sufficient to support federal jurisdiction
differs depending on whether the plaintiff’s complaint alleges a specific amount of monetary
damages. 63 When the plaintiff alleges a damages figure in excess of the required amount in

56

28 U.S.C. § 1332(a)(1).

57

Texas Beef Grp. v. Winfrey, 201 F.3d 680, 686 (5th Cir. 2000) (citing 14B Charles Alan Wright, Arthur R.
Miller, & Edward H. Cooper, Federal Practice and Procedure § 3723 (1998 ed.)).
58

See Allen v. R&H Oil & Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995).

59

See Baris v. Sulpicio Lines, Inc., 932 F.2d 1540, 1544 (5th Cir. 1991); Giannakos v. M/V Bravo Trader,
762 F.2d 1295, 1297 (5th Cir. 1985).
60

28 U.S.C. § 1447(c).

61

Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002).

62

Acuna v. Brown & Root, Inc., 200 F.3d 335, 339 (5th Cir. 2000) (citing Willy v. Coastal Corp., 855 F.2d
1160, 1164 (5th Cir. 1988)).
63

See Allen, 63 F.3d at 1335.

9

controversy, “that amount controls if made in good faith.”64 If the plaintiff pleads damages less
than the jurisdictional amount, this figure will also generally control, barring removal.65
Nevertheless, Louisiana law ordinarily does not allow a plaintiff to plead a specific amount
of damages.66 When, as here, the plaintiff has alleged an indeterminate amount of damages, the
Fifth Circuit requires the removing defendant to prove by a preponderance of the evidence that the
amount in controversy exceeds $75,000. 67 A defendant satisfies this burden either “(1) by
demonstrating that it is facially apparent that the claims are likely above $75,000, or (2) by setting
forth facts in controversy—preferably in the removal petition, but sometimes by affidavit—that
support a finding of the requisite amount.”68 The defendant must do more than point to a state law
that might allow the plaintiff to recover more than the jurisdictional minimum; the defendant must
submit evidence that establishes that the actual amount in controversy exceeded $75,000.69
B.

Analysis
Motions to remand from a federal district court to a state court are governed by 28 U.S.C.

§ 1447(c).70 Section 1447(c) provides, in part: “If at any time before the final judgment it appears

64

Id. (citing St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289 (1938)).

65

Id.

66

See La. Code Civ. P. art. 893.

67

Gebbia v. Wal-Mart Stores, Inc., 233 F.3d 880, 882 (5th Cir. 2000); see also Simon v. Wal-Mart Stores,
Inc., 193 F.3d at 848, 850 (5th Cir. 1999); Allen, 63 F.3d at 1335.
68

Simon, 193 F.3d at 850 (quoting Luckett v. Delta Airlines, Inc., 171 F.3d 295 (5th Cir. 1999)); see also
Allen, 63 F.3d at 1335.
69

See De Aguilar v. Boeing Co., 47 F.3d 1404, 1412 (5th Cir. 1995).

70

Thompson v. Acceptance Indem. Ins. Co., No. 14-1424, 2014 WL 7369733, at *3 (E.D. La. Dec. 29, 2014)
(Brown, J.).

10

that the district court lacks subject matter jurisdiction, the case shall be remanded.”71 In his motion,
Plaintiff argues that this matter should be remanded back to state court because the amount in
controversy requirement was not met at the time of removal.72 Plaintiff contends that the amount
in controversy is not facially apparent from the petition and there is no presumption in favor of
federal jurisdiction as a result of his failure to include a provision in his original petition that his
damages total less than $75,000.73 Plaintiff also states that his unwillingness to stipulate that his
damages total less than $75,000 is irrelevant to the determination of the amount in controversy.74
Finally, Plaintiff contends that he is entitled to attorney’s fees and costs because Defendants lack
an objectively reasonable basis for removal.75
In response, Defendant contends that it is facially apparent from Plaintiff’s petition that the
amount in controversy requirement is met.76 Defendant further argues that Plaintiff’s failure to
include an allegation that his damages totaled less than $75,000 in his complaint and his refusal to
stipulate to the same post-removal stand constitute evidence that the jurisdictional amount in
controversy is met.77 Defendant also represents that the medical records that have been disclosed
during post-removal discovery by Plaintiff thus far total almost $20,000. 78 According to

71

28 U.S.C. § 1447(c).

72

Rec. Doc. 8-2 at 2.

73

Id. at 2–3.

74

Id. at 4–5.

75

Id. at 6.

76

Rec. Doc. 11 at 5.

77

Id. at 2–3; Rec. Doc. 20 at 3.

78

Rec. Doc. 20 at 6.

11

Defendant, fees and costs are not warranted here, because it was not objectively unreasonable for
Defendant to seek removal.79
The Court first notes that Defendant sought a stipulation from Plaintiff that his damages
total less than $75,000 after removal. 80 While the amount in controversy must typically be
determined at the time of removal, the Fifth Circuit has held that a post-removal stipulation by a
plaintiff may be considered “if the basis for jurisdiction is ambiguous at the time of removal.”81
However, even if Plaintiff’s post-removal response is taken into consideration, his failure to
stipulate that the damages did not exceed $75,000 is insufficient to establish the amount in
controversy requirement. As the Court stated supra, subject matter jurisdiction cannot be waived
by the parties’ conduct or consent.82 Thus, while the Court will consider Plaintiff’s refusal to
stipulate that damages do not exceed $75,000 as one factor in its jurisdictional analysis, it is not
conclusive evidence that Plaintiff’s claims meet the amount in controversy requirement.83
Defendant also offers Plaintiff’s medical records as evidence that this Court has subject
matter jurisdiction. The Court notes that many of the medical records dated after the removal of

79

Rec. Doc. 11 at 8.

80

See Rec. Doc. 6 at 6.

81
Thompson v. Acceptance Indem. Ins. Co., No. 14-1424, 2014 WL 7369733, at *5 (E.D. La. Dec. 29, 2014)
(Brown, J.) (citations omitted); see De Aguilar v. Boeing Co., 47 F.3d 1404, 1406 (5th Cir. 1995) (“Post-removal
affidavits sometimes can be relevant where the jurisdictional amount question is unresolved”).
82

See Baris v. Sulpicio Lines, Inc., 932 F.2d 1540, 1544 (5th Cir. 1991); Giannakos v. M/V Bravo Trader,
762 F.2d 1295, 1297 (5th Cir. 1985).
83

See Aldrich v. DBP Holding Corp., No. 13-5729, 2014 WL 2215707 (E.D. La. May 28, 2014) (Brown, J.)
(plaintiff’s failure to stipulate damages “is not conclusive evidence that a claim exceeds $75,000”); see also Carbajal
v. Caskids Oil Operating Co., No. 05-5966, 2006 WL 1030392 (E.D. La. Apr. 18, 2006) (Africk, J.); Buchana v. WalMart Stores, Inc., No. 99-2783, 1999 WL 1044336 at *3 (E.D. La. Nov. 17, 1999) (Vance, J.) (“Although some courts
have considered failure to stipulate in deciding whether to remand, courts in this district and others have found that
that factor alone does not satisfy a defendant's burden.”).

12

this action.84 Even taking into account all the medical records offered, Defendant’s evidence does
not suggest that the amount in controversy exceeds $75,000. The medical bills filed into the record
by Defendant total less than $20,000.85 Furthermore, the medical records indicate that Plaintiff’s
physician recommended “conservative treatment” prior to removal, and the evidence does not
suggest that that he will require surgery for his injuries. 86 While the records submitted by
Defendant indicate that Plaintiff has undergone additional medical appointments and tests,
Defendant does not provide any evidentiary support that the expenses of these medical treatments
exceeded $75,000 at the time of removal. Nor does Defendant provide any evidence of what
additional costs may be incurred in the amount of damages for pain and suffering, mental anguish,
and loss of enjoyment of life, or any other quantifiable damages alleged by Plaintiff.
The Court notes that Defendant cites to two cases that it claims are similar to the instant
case where the amount in controversy was found to be met.87 However, this case is distinguishable
from those cases. In Hernandez v. USA Hosts, Ltd., the Fifth Circuit upheld a district court’s
finding that it had subject matter jurisdiction over a plaintiff’s claims where the plaintiff alleged
“serious personal injuries to her back, knees, shoulder, and body as a whole, including but not
limited to the aggravation of pre-existing conditions, which have caused substantial physical pain
and suffering; mental anguish; emotional distress, medical expenses; loss of enjoyment of life; lost

84

See Rec. Doc. 20-2 at 65–85.

85

Rec. Doc. 20 at 6; Rec. Doc. 20-2.

86

See Rec. Doc. 20-2 at 62 (March 2015 report of treating physician recommending continuation of
conservative treatment in addition to receiving an orthopedic or neurosurgical consult).
87

Rec. Doc. 6 at 4–5 (citing Hernandez v. USA Hosts, Ltd., 418 Fed. App’x 293 (5th Cir. 2011); Gebbia v.
Wal-Mart Stores, Inc., 233 F.3d 880 (5th Cir. 2000)).

13

wages; property damages; and other elements of damages which will be demonstrated at trial of
this matter.”88 Unlike the Hernandez petition, Plaintiff’s petition does not include allegations of
injury to his “body as a whole,” nor does it include claims for aggravation of pre-existing
conditions, lost wages, or property damages.89
In the second case cited by Defendant, Gebbia v. Wal-Mart Stores, Inc., the Fifth Circuit
upheld a district court’s finding of subject matter jurisdiction where the plaintiff alleged damages
for “medical expenses physical pain and suffering, mental anguish and suffering, loss of enjoyment
of life, loss of wages and earning capacity, and permanent disability and disfigurement.”90 Here,
unlike the plaintiff in Gebbia, Plaintiff does not seek damages for loss of wages and earning
capacity or for permanent disability and disfigurement.91 Because the plaintiffs’ alleged damages
in Hernandez and Gebbia are readily distinguishable from Plaintiff’s damages allegations in this
case, the Court finds that neither of the decisions cited by Defendant indicate that the jurisdictional
amount in controversy is facially apparent from Plaintiff’s petition.
The burden is on the party asserting federal jurisdiction to set forth specific facts that prove
by a preponderance of the evidence that the amount in controversy exceeds $75,000.92 Here, the
damages in this case are too speculative for the Court to find that they satisfy the amount in
controversy requirement. Although the categories of damages that Plaintiff lists could potentially

88

418 Fed. App’x 293, 295 (5th Cir. 2011).

89

Rec. Doc. 1 at 4.

90

233 F.3d 880, 881 (5th Cir. 2011).

91

Rec. Doc. 1 at 4.

92

Gebbia, 233 F.3d at 882; see also Simon v. Wal-Mart Stores, Inc., 193 F.3d at 848, 850 (5th Cir. 1999);
Allen, 63 F.3d at 1335.

14

bring the total amount of damages to over $75,000, the Fifth Circuit has explained that “[a] ‘could
well’ standard sounds more like a ‘possibility’ standard of proof, rather than a ‘more likely or not’
standard.”93 Considering all of the evidence of the amount in controversy at the time the Notice
of Removal was filed, Defendant has put forth insufficient evidence to demonstrate by a
preponderance of the evidence that Plaintiff’s claims, if proven, would be worth an amount in
excess of $75,000.
Finally, Plaintiff argues that he is entitled to fees and costs, because “Defendants in the
case at bar have misread the law.”94 Plaintiff contends that Defendant interpreted Fifth Circuit
jurisprudence to create a presumption in favor of a finding that an amount in controversy meets
the threshold for diversity jurisdiction even though no such presumption exists. 95 Defendant
argues that it had an objectively reasonable basis for seeking removal and that fees and costs are
therefore inappropriate.96
Pursuant to 28 U.S.C. § 1447(c), “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.” The
decision to award attorney’s fees under Section 1447(c) is in the sound discretion of the Court, and
should “recognize the desire to deter removals sought for the purpose of prolonging litigation and
imposing costs on the opposing party, while not undermining Congress’ basic decision to afford
defendants a right to remove as a general matter, when the statutory criteria are satisfied.”97

93

Allen v. R&H Oil & Gas Co., 63 F.3d 1326, 1336 (5th Cir. 1995).

94

Rec. Doc. 8-2 at 6.

95

Id.

96

Rec. Doc. 11 at 9.

97

Darville v. Tidewater Marine Serv., Inc., No. 15-6441, 2016 WL 1402837, at *8 (E.D. La. Apr. 11, 2016)

15

Toward that end, the “mere determination that removal was improper” does not
automatically entitle a plaintiff to an award of fees. 98

Rather, in the absence of “unusual

circumstances,” this Court may award attorney’s fees under Section 1447(c) “only where the
removing party lacked an objectively reasonable basis for seeking removal.”99
The Court has found Defendant’s arguments in support of removal unavailing. However,
a party’s mere advancement of unsuccessful arguments in support of removal does not warrant the
imposition of attorney’s fees. 100 Plaintiff does assert that Defendant lacked an objectively
reasonable basis for seeking removal by comparing Defendant to the defendant in Howard v. St.
Germain.101 However, that case did not involve a dispute regarding the amount in controversy.
Rather, in Howard, an attorney-defendant attempted to remove a defamation action based on
federal question jurisdiction arguing that he constituted an “officer of the court” under 28 U.S.C.
§ 1442 despite long-established precedent to the contrary.102 The Fifth Circuit upheld the district
court’s granting of fees, recognizing the baseless nature of the defendant’s arguments for
removal. 103 Here, although the Court has found that Defendant has not presented sufficient
evidence to establish that the amount in controversy was met at the time of removal, it does not
find that it lacked an objectively reasonable basis for seeking removal. Moreover, Plaintiff does

(Brown, J.) (citing Martin v. Franklin Capital Corp., 546 U.S. 132, 140 (2005)).
98

Id. (citing Am. Airlines, Inc. v. Sabre, Inc., 694 F.3d 539, 541–42 (5th Cir. 2012)).

99

Id.

100

Id.

101

Rec. Doc. 8-2 at 6 (citing 599 F.3d 455, 457 (5th Cir. 2010)).

102

599 F.3d at 457.

103

Id.

16

not argue Defendant removed this action in order to “prolong[] litigation and impos[e] costs.”104
Therefore, although the Court will remand the instant action to state court, it will not award
attorneys’ fees or costs here.
IV. Conclusion
Based on the foregoing, the Court finds that Defendant has failed to carry its burden of
proving by a preponderance of the evidence that the amount in controversy in this matter exceeded
$75,000 at the time of removal. Because this Court lacks subject matter jurisdiction in this case,
remand to state court is appropriate. Because the Court finds that Defendant did not lack an
objectively reasonable basis for removal, it will not award attorneys’ fees or costs. Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s “Motion to Remand”105 is GRANTED IN
PART to the extent that the case is remanded to state court and DENIED IN PART to the extent
that Plaintiff requests an award for costs and expenses, including attorney’s fees.
IT IS FURTHER ORDERED that the case is remanded to the Civil District Court for
Parish of Orleans, State of Louisiana.

25th
NEW ORLEANS, LOUISIANA, this ______ day of January, 2017.
________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

104

Martin, 546 U.S. at 141.

105

Rec. Doc. 8.

17