NAG, Ltd., et al v. Certain Underwriters at Lloyds of London

Filing 9

ORDER: IT IS HEREBY ORDERED that Plaintiffs' 6 Motion to Remand is GRANTED INPART to the extent that the case is remanded to state court and DENIED IN PART to the extent that Plaintiffs request an award for costs and expenses, including attorn ey'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 2/6/2017. (mmv) (Additional attachment(s) added on 2/7/2017: # 1 Remand Letter) (mmv).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
NAG, LTD., et al.

CIVIL ACTION

VERSUS

NO. 16-16728

CERTAIN UNDERWRITERS AT
LLOYDS OF LONDON

SECTION “G”(3)

ORDER
This litigation arises out of Plaintiffs NAG, Ltd., Ben Sah, Inc., and Meir Chee Shawl,
Ltd.’s (collectively, “Plaintiffs”) claims for breach of an insurance policy against Defendants
Certain Underwriters at Lloyd’s, London Subscribing to Certificate No. LPS14-024
(“Defendants”).1 Plaintiff originally filed this action in state court, but Defendants removed the
case to this Court, asserting diversity jurisdiction pursuant to 28 U.S.C. § 1332.2 Before the Court
is Plaintiffs’ “Motion to Remand.”3 Having considered the motion, the notice of removal,
Defendants’ supplemental briefing, the record, and the applicable law, the Court will grant the
motion in part and remand the case to the Civil District Court for the Parish of Orleans, State of
Louisiana.
I. Background
A.

Factual and Procedural Background
In this litigation, Plaintiffs allege a breach of a commercial property insurance policy by

Defendants, who are the underwriters of Plaintiffs’ insurance policy.4 Plaintiffs claim that their

1

Rec. Doc. 1-2 at 4.

2

Rec. Doc. 1.

3

Rec. Doc. 6.

4

Rec. Doc. 1-2 at 3.

1

insurance policy covered physical damage to two of their commercial properties following the
collapse of an adjacent building on October 21, 2014.5 In their state court petition, Plaintiffs seek
damages for the losses they incurred, as well as penalties and attorney’s fees pursuant to Louisiana
Revised Statutes §§ 22:1973 and 22:1892.6
On October 11, 2016, Plaintiffs filed this action in Civil District Court for the Parish of
Orleans, State of Louisiana.7 On November 30, 2016, Defendants removed the case to this Court,
asserting diversity jurisdiction pursuant to 28 U.S.C. § 1332.8 In their notice of removal,
Defendants allege that the citizenship of each defendant is diverse from Plaintiffs’ citizenship and
assert that Plaintiffs have alleged damages that exceed $75,000.9 On December 22, 2016, the Court
issued an Order reviewing subject matter jurisdiction in the case and determining that the
citizenship of the parties was unclear and that it was not facially apparent that the amount in
controversy exceeds $75,000.10 The Court ordered that Defendants, who bear the burden of proof
as the removing parties,11 clarify the citizenship of the parties and submit evidence regarding the
amount in controversy at the time of removal.12 On December 22, 2016, Plaintiffs filed the instant

5

Id. at 4.

6

Id. at 5.

7

Id.

8

Rec. Doc. 1.

9

Id. at 2–3.

10

Rec. Doc. 7 at 3–5.

11

See Gebbia v. Wal-Mart Stores, Inc., 233 F.3d 880, 882 (5th Cir. 2000) (holding that the removing party
must prove by a preponderance of evidence that the amount in controversy exceeds $75,000).
12

Rec. Doc. 7 at 6.

2

motion to remand to state court.13 Defendants filed supplemental briefing regarding the citizenship
of the parties and the amount in controversy on January 5, 2017.14
B.

Structure of Lloyd’s of London Insurance Market
Before turning to the parties’ arguments, it is useful to explain the nature and structure of

the Lloyd’s of London insurance market (“Lloyd’s”), because Lloyd’s “presents a unique structure
for jurisdictional analysis.”15 Lloyd’s is not an insurance company, but rather a self-regulating
entity which operates and controls an insurance market.16 Lloyd’s provides a market for the buying
and selling of insurance risk among its members who collectively make up Certain Underwriters
at Lloyd’s.17 The members (or investors) who collectively make up Lloyd’s are called “Names”
and are the individuals and corporations that finance the insurance market and ultimately insure
risks.18 Each Name is exposed to personal liability for his, her, or its proportionate share of the
loss on a particular policy that the Name has subscribed to as an underwriter.19
Names do not operate independently. Rather, each is severally liable on the policies to
which it subscribes only for his, her, or its proportion of each risk.20 Typically, hundreds of Names
will subscribe to a single policy.21 Although Names do not actively participate in the business, they

13

Rec. Doc. 6.

14

Rec. Doc. 8.

15
McAuslin v. Grinnell Corp., Nos. 97-775, 97-803, 2000 WL 1059850, at *1 (E.D. La. Aug. 1, 2000)
(Vance, J.) (citing E.R. Squibb & Sons, Inc. v. Accident & Cas. Ins. Co., 160 F.3d 925, 930 (2d Cir. 1998) (internal
quotations omitted)).
16

Corfield v. Dallas Glen Hills, LP, 355 F.3d 853, 857 (5th Cir. 2003).

17

Id. at 858.

18

Id.

19

Id.

20

Id. See also McAuslin, 2000 WL 1059850, at *2.

21

Id.

3

provide capital to the market through their participation in “syndicates.”22 Generally, a Lloyd’s
policy has multiple syndicates that are collectively responsible for all of the coverage provided by
a policy.23 A syndicate bears no liability for the risk on a Lloyd’s policy, however, because all
liability falls to the individual Names who belong to the various syndicates that have subscribed
to a policy.24
II. Parties’ Arguments
A.

Defendants’ Notice of Removal
In their notice of removal, Defendants aver that Plaintiffs indicated in their petition that

their damages exceed the $50,000 threshold required for a jury trial.25 Given that the penalties
could be as much as 50% of the amount awarded under the policy, Defendants argue, the amount
in controversy will “more likely than not” exceed the $75,000 jurisdictional amount in controversy
requirement.26 Defendants also note that the combined policy limits for the buildings at issue are
$1.3 million.27
Defendants assert in their notice of removal that Plaintiffs are “domestic corporations
licensed to do and doing business in the Parish of Orleans, State of Louisiana.”28 Defendants
represent that Lloyd’s insurance market is a self-regulating industry that operates and controls an

22
Id. These syndicates are commonly described as annual ventures because “[f]or a given operating year, a
group of Names bands together to form ‘a syndicate year of account.’” See McAuslin, 2000 WL 1059850, at *2 (citing
John M. Sylvester & Roberta D. Anderson, Is It Still Possible to Litigate Against Lloyd’s in Federal Court?, 34 TORT
& INS. L.J. 1065, 1069 (1999)).
23

Id.

24

Id.

25

Rec. Doc. 1 at 3 (citing Rec. Doc. 1-2 at 2).

26

Id.

27

Id.

28

Id.

4

insurance market and that the individual and corporate members of Lloyd’s are called “Names.”29
Because Lloyd’s is an unincorporated group of underwriting members, Defendants assert that its
citizenship is determined by the citizenship of its members.30 Defendants assert that a
representative of Lloyd’s has examined the list of members subscribing to the policy at issue and
that to the best of her knowledge, none of the participating members are located in Louisiana.31
Thus, Defendants assert that the Court has original jurisdiction pursuant to 28 U.S.C. § 1332.32
B.

Plaintiffs’ Arguments in Support of the Motion to Remand
In their motion to remand, Plaintiffs assert that when underwriters, sometimes called

“Names,” subscribing to a policy held by Lloyd’s are sued in or removed to federal court, the party
asserting federal jurisdiction must establish that all underwriters are diverse from all adverse
parties and that the claim against each individual underwriter meets the $75,000 amount in
controversy requirement.33 Plaintiffs contend that the requirements for federal jurisdiction are not
apparent on the face of Plaintiffs’ petition, because it does not allege the citizenship of each of the
underwriters at Lloyd’s, who are anonymous by their own design.34 According to Plaintiffs, even
assuming an award of the full policy limits of $1.3 million, the required amount in controversy
requirement for each individual anonymous underwriter would not be met, because underwriters
subscribing to Lloyd’s policies typically number in the thousands.35 Plaintiffs contend that the lack

29

Id. (citing Corfield v. Dallas Glenn Hills, LP, 335 F.3d 853, 857–58 (5th Cir. 2003)).

30

Id. at 3–4 (citing McAuslin v. Grinell Corp., Nos. 97-775, 97-803, 2000 WL 1059850, at *2 (E.D. La. Aug.
1, 2000) (Vance, J.)).
31

Id. at 4.

32

Id.

33

Rec. Doc. 6-1 at 5.

34

Id. at 6 (citing Rec. Doc. 1 at 8; Corfield v. Dallas Glen Hills LP, 355 F.3d 853, 859 (5th Cir. 2003)).

35

Id. (citing Underwriters at Lloyd’s, London v. Osting-Schwinn, 613 F.3d 1079, 1084 (11th Cir. 2010)).

5

of affirmative evidence to establish the jurisdictional threshold for each individual Name results
in a lack of diversity jurisdiction.36
Plaintiffs next argue that Defendants have not alleged affirmative evidence demonstrating
the individual citizenship of each of the Names.37 Plaintiffs contend that the broad declaration by
Defendants of the purported identities of the syndicates is for “the 2014 year,” but that the time of
removal was November 2016.38 Plaintiffs further contend that the affidavit of the head of market
services for Defendants is insufficient to establish the citizenship of each Name, because she
simply states in the affidavit that to the best of her knowledge, none of the participating members
are located in Louisiana.39 Because it is impossible to conclude whether the Court has subject
matter jurisdiction, Plaintiffs argue that the Court should remand this matter to state court.40
Finally, Plaintiffs argue that the Court should award them attorneys’ fees and costs, because
Defendants have no objectively reasonable ground to believe that removal is legally proper in this
case without an affirmative showing of citizenship and amount in controversy as to each member
of the syndicate.41 Plaintiffs also request that the Court certify its Order as immediately appealable
if it should deny their motion to remand.42

36

Id. at 7.

37

Id.

38

Id.

39

Id. at 8 (citing Rec. Doc. 1-3).

40

Id. at 9.

41

Id. at 11.

42

Id. at 12–13.

6

C.

Defendants’ Supplemental Briefing on Diversity and the Amount in Controversy
Defendants argue that at the time of removal, based on a construction cost estimate

submitted to Defendants by Plaintiffs, Plaintiffs’ damages total at least $286,708.37.43 Defendants
again note that Plaintiffs have also asserted claims for penalties and attorneys’ fees under
Louisiana law.44 Defendants aver that Plaintiffs are all citizens of Louisiana for purposes of federal
diversity jurisdiction, because they are all corporations that are incorporated in and have their
principal places of business in Louisiana.45 Defendants assert that Plaintiffs’ insurance policy was
issued in July of 2014, so the relevant question concerning Defendants’ diversity is “whether any
of the underwriting members who participated in those certain syndicates in July 2014 were
citizens of Louisiana at the time of removal.”46
Defendants note that the head of market services at Lloyd’s found that no members of the
insurance policy were shown as having an address in Louisiana and that to her knowledge, none
of the participating members were located in Louisiana.47 Because none of the members have
addresses in Louisiana or are located in Louisiana, Defendants argue, none of the members who
participated in the policy have a principal place of business in Louisiana.48 Thus, Defendants argue
that the members subscribing to the certificate are all foreign insurers who are completely diverse
from Plaintiffs.49

43

Rec. Doc. 8 at 2.

44

Id.

45

Id. at 3–4.

46

Id. at 5.

47

Id. (citing Rec. Doc. 1-3).

48

Id. at 5–6.

49

Id. at 6.

7

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.50 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
citizens of different states.”51 “When removal is based on diversity of citizenship, diversity must
exist at the time of removal.”52 The removing party bears the burden of demonstrating that federal
jurisdiction exists by a preponderance of the evidence.53 Subject matter jurisdiction cannot be
waived by the parties’ conduct or consent.54 “If at any time before final judgment it appears that
the district court lacks subject matter jurisdiction, the case shall be remanded.”55
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.”56 Remand is
appropriate if the Court lacks subject matter jurisdiction, and “doubts regarding whether removal
jurisdiction is proper should be resolved against federal jurisdiction.”57 A removing defendant’s

50

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

51

28 U.S.C. § 1332(a)(1).

52

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.)).
53

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

54
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).
55

28 U.S.C. § 1447(c).

56

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

57
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)).

8

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.58 When the plaintiff alleges a damages figure in excess of the required amount in
controversy, “that amount controls if made in good faith.”59 If the plaintiff pleads damages less
than the jurisdictional amount, this figure will also generally control, barring removal.60
Nevertheless, Louisiana law ordinarily does not allow a plaintiff to plead a specific amount
of damages.61 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 $75,000.62 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.”63 “[T]he [fact] that the removing party bears the burden
of proving the amount in controversy does not mean that the removing party cannot ask the court
to make common-sense inferences about the amount put at stake by the injuries the plaintiffs
claim.”64 “Removal, however, cannot simply be based on conclusory allegations.”65 The defendant

58

See Allen, 63 F.3d at 1335.

59

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

60

Id.

61

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

62

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.
63

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.
64

Roberts v. Exxon Mobil Corp., No. 15-30920, 2015 WL 9592499, at *3 (5th Cir. Dec. 31, 2015).

65

See Allen, 63 F.3d at 1335.

9

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 at the time of removal.66
Although the Fifth Circuit has not expressly ruled on the issue, courts in the Eastern District
of Louisiana and other circuit courts have found that when determining the diversity of citizenship
of the parties in a case involving Lloyd’s, the citizenship of all of the Names subscribing to a policy
must be taken into consideration.67 Moreover, a Fifth Circuit opinion and numerous decisions from
the Eastern District of Louisiana affirm that the amount in controversy must be established as to
each Name subscribing to the policy.68

66

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

67

See id. at 864 (holding that an insured can sue a Name individually). See also McAuslin, 2000 WL 1059850,
at *4 (reviewing cases and finding that “[t]he majority of courts that have addressed this issue have found that each
Name must be diverse”); Johnson v. Certain Underwriters at Lloyd’s London, No. 09-2495, 2009 WL 3232006, at *
3 (E.D. La. Oct. 2, 2009) (Berrigan, J.) (collecting cases and finding that the “majority view” is that the citizenship of
all of the Names must be taken into consideration for purposes of diversity jurisdiction); Certain Underwriters at
Lloyd’s London Subscribing to Policy Number B066421355A04 v. Washington, et al., No. 09-3195, 2009 WL
5215927, at *4 (E.D. La. Dec. 28, 2009) (Engelhardt, J.) (“[T]his Court agrees with . . . multiple other jurists of the
Eastern District of Louisiana and other Circuit Courts that the citizenship of the Names, as the real parties to the
controversy, must be considered for purposes of diversity of citizenship jurisdiction.”); Walle Bldg. Condominium
Ass’n v. Certain Underwriters at Lloyd’s London, No. 07-4204, 2008 WL 4412250, at *3 (E.D. La. Sept. 18, 2008)
(Lemmon, J.) (dismissing case for lack of subject matter jurisdiction where the plaintiff had failed to carry its buren
of establishing that all of the Names subscribing to the policy were diverse); E.R. Squibb & Sons, Inc. v. Accident Cas.
Ins. Co., 160 F.3d 925, 939 (2d Cir. 1998) (“[E]ach and every Name whom the lead underwriter represents must be
completely diverse.”); Indiana Gas Co. v. Home Ins. Co., 141 F.3d 314, 319 (7th Cir. 1998) (holding that each Name
must be diverse).
68

See Team One Props., LLC v. Certain Underwriters at Lloyd’s London, 281 Fed. App’x 323 (5th Cir. 2008)
(upholding a district court’s dismissal of an action against Lloyd’s for lack of subject matter jurisdiction, stating that
the district court found that the plaintiff “did not demonstrate that the amount in controversy against any completely
diverse underwriter was in excess of the jurisdictional $75,000 exclusive of interests and costs”); Rips, LLC v.
Underwriters at Lloyd’s London, No. 14-1969, 2015 WL 2452339, at * 3 (E.D. La. May 21, 2015) (Berrigan, J.)
(holding that plaintiff must plead that the jurisdictional minimum is met for each Name); G&M Holding, Inc. v. Certain
Underwriters at Lloyd’s of London, No. 07-4883, 2008 WL 215842, at * 2 (E.D. La. Jan. 23, 2008) (Barbier, J.)
(dismissing for lack of subject matter jurisdiction after finding that “the Plaintiff has not asserted facts which would
indicate that the amount in controversy is met as to all Names sued under the policy”); Advanced Sleep Ctr., Inc. v.
Certain Underwriters at Lloyd’s London, No. 14-592, 2015 WL 4097069, at *3 (E.D. La. July 7, 2015) (Morgan, J.)
(finding that the amount in controversy requirement must be met as to each Name); McAuslin, 2000 WL 1059850, at
* 4 (finding subject matter jurisdiction lacking because several Names were non-diverse and “all but one of the Names
lack[ed] the requisite amount in controversy”). See also Chase Manhattan Bank, N.A. v. Aldridge, 906 F.Supp. 870,
874 (S.D.N.Y. 1995) (citing Dendinger v. Maryland Cas. Co., 302 F.2d 850, 851 (5th Cir. 1962) (holding that the
amounts claimed against each Name could not be aggregated because “when liability among defendants is several, a

10

C.

Analysis
In their motion, Plaintiffs argue that this case should be remanded because: (1) Defendants

have not established complete diversity as to each Name; and (2) Defendants have not established
the amount in controversy as to each Name subscribing to the policy at issue.69 Defendants argue
that there is complete diversity, because Plaintiffs are citizens of the state of Louisiana for purposes
of diversity jurisdiction and none of the Names participating in the policy at issue are citizens of
Louisiana.70 Defendants further argue that the amount in controversy requirement is met, because
an estimate submitted by Plaintiffs indicates that Plaintiffs’ total claimed damages are at least
$286,708.37.71 The Court will first consider whether Defendants have established that the
jurisdictional amount in controversy requirement is met in this case.
To support their contention that the amount in controversy requirement is met in this case,
Defendants offer an affidavit from an insurance adjuster who estimates that Plaintiffs’ damages
total approximately $575,000 and that a total of $288,291.63 has been tendered to Plaintiffs in
connection with the property damages at issue in this case.72 According to Defendants, the amount
in controversy is therefore at least $286,708.37, or the balance of the $575,000 in estimated
damages less the previously tendered amount of $288, 291.63.73 As the Court stated supra,

plaintiff cannot aggregate its claims against individual defendants in order to satisfy the jurisdictional amount . . . It
must satisfy the jurisdictional amount with respect to each defendant.”).
69

Rec. Doc. 6-1 at 5, 7.

70

Rec. Doc. 8 at 5–6.

71

Id. at 2.

72

Rec. Doc. 8-1 at 2.

73

Rec. Doc. 8 at 2.

11

however, the amount in controversy requirement must be met as to each Name subscribing to the
policy at issue.74
Although Defendants have offered evidence to demonstrate the extent of the total damage
to Plaintiffs’ property, Defendants have not offered any evidence to establish that the amount in
controversy requirement has been met as to each Name subscribing to the policy.75 The Court
notes, for example, that the policy at issue has not been filed into the record before the Court.
Therefore, the Court cannot determine how many Names are underwriters for the policy at issue
or the proportion of risk for which each of the Names is responsible. As the Fifth Circuit has
recognized, “[t]ypically hundreds of names will subscribe to a single policy, and the liability
among the Names is several, not joint.”76
As the removing parties, Defendants bear the burden of establishing jurisdiction by a
preponderance of the evidence, and “[a]ny ambiguities are construed strictly against removal
because the removal statute should be strictly construed in favor of remand.”77 Despite the
requirement that Defendants prove that the amount in controversy is met as to each Name
subscribing to the policy, Defendants have failed to prove that the jurisdictional amount in
controversy is established with respect to any individual Name.78 Thus, remand to state court is

74

See, e.g., McAuslin, 2000 WL 1059850, at * 4 (finding subject matter jurisdiction lacking because several
Names were non-diverse and “all but one of the names lack[ed] the requisite amount in controversy”).
75

See Jewell v. Grain Dealers Mut. Ins. Co., 290 F.2d 11, 13 (5th Cir. 1961) (holding that “where a suit is
brought against several defendants asserting claims against each of them which are separate and distinct, the test of
jurisdiction is the amount of each claim, and not their aggregate.”) (internal citations omitted).
76

Corfield v. Dallas Glen Hills LP, 355 F.3d 853, 858 (5th Cir. 2003).

77

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

78

See Team One Props., LLC v. Certain Underwriters at Lloyd’s London, 281 Fed. App’x 323 (5th Cir. 2008)
(upholding a district court’s dismissal of an action against Lloyd’s for lack of subject matter jurisdiction, stating that
the district court found that the plaintiff “did not demonstrate that the amount in controversy against any completely
diverse underwriter was in excess of the jurisdictional $75,000 exclusive of interests and costs”).

12

appropriate. Because Defendants have not provided sufficient evidence to establish that the amount
in controversy requirement has been met with respect to each Name, the Court need not address
whether complete diversity has been established.79
Finally, the Court notes that Plaintiffs request attorney’s fees and costs, because according
to Plaintiffs, there is no objectively reasonable basis for removal.80 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.”81 Toward that end, the “mere
determination that removal was improper” does not automatically entitle a plaintiff to an award of
fees.82 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.”83 Although the Court has found that Defendants have not meet their burden to
establish the requisite amount in controversy as to each Name, it does not find that Defendants

79
See Johnson v. Certain Underwriters at Lloyd’s London, No. 09-2495, 2009 WL 3232006, at * 3 (E.D.
La. Oct. 2, 2009) (Berrigan, J.) (dismissing case for lack of subject matter jurisdiction due to lack of complete
diversity and declining to determine the existence of the jurisdictional minimum).
80

Rec. Doc. 6-1 at 11.

81

Darville v. Tidewater Marine Serv., Inc., No. 15-6441, 2016 WL 1402837, at *8 (E.D. La. Apr. 11, 2016)
(Brown, J.) (citing Martin v. Franklin Capital Corp., 546 U.S. 132, 140 (2005)).
82

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

83

Id.

13

lacked an objectively reasonable basis for seeking removal. Accordingly, the Court will not award
fees or costs here.84
IV. Conclusion
Considering all of the evidence of the amount in controversy at the time that the notice of
removal was filed, the Court finds that Defendants have put forth insufficient evidence to
demonstrate by a preponderance of the evidence that the jurisdictional amount in controversy is
established with respect to each Name. Therefore, the Court cannot determine whether it has
subject matter jurisdiction, and remand to state court is proper.
Accordingly,
IT IS HEREBY ORDERED that Plaintiffs’ “Motion to Remand”85 is GRANTED IN
PART to the extent that the case is remanded to state court and DENIED IN PART to the extent
that Plaintiffs request 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.

6th
New Orleans, Louisiana, this ____ day of February, 2017.

____________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

84
See Certain Underwriters at Lloyd’s London Subscribing to Policy No. B066421355A04 v. Washington,
No. 09-3195, 2009 WL 5215927, at * 5 (E.D. La. Dec. 28, 2009) (Engelhardt, J.) (dismissing case for lack of
complete diversity but declining to award fees and costs).
85

Rec. Doc. 6.

14