Sunshine Construction & Maintenance of Myrtle Beach, LLC v. Cannatelli Builders, Inc.

Filing 10

ORDER & REASONS. It is ORDERED that Plaintiff's 6 Motion to Remand is DENIED. Signed by Judge Carl Barbier. (gec)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

SUNSHINE CONSTRUCTION &
MAINTENANCE OF MYRTLE
BEACH, LLC

CIVIL ACTION

VERSUS

NO: 17-1431

CANNATELLI BUILDERS,
INC.

SECTION: “J”(5)

ORDER & REASONS
Before the Court is a Motion to Remand to State Court (R.
Doc. 6) filed by Plaintiff, Sunshine Construction & Maintenance of
Myrtle Beach, LLC (“Sunshine”), and an opposition (R. Doc. 8)
thereto

filed

by

Defendant,

Cannatelli

Builders,

Inc.

(“Cannatelli”). Having considered the motion and legal memoranda,
the record, and the applicable law, the Court finds that the motion
should be DENIED.
FACTS AND PROCEDURAL BACKGROUND
This case arises from the construction of a Burger King
restaurant in Amite, Louisiana (“Burger King project”). Dunaway
Food Services 1 (“Dunaway”) contracted with Cannatelli to renovate
the Burger King restaurant. Sunshine was then hired to perform all
or part of the renovation for approximately $230,000 and hired
subcontractors to help renovate the Burger King. Sunshine alleges

1

It appears that Dunaway is the owner of the Burger King or the manager of the
Burger King project. See (R. Docs. 6, 8.)

that

when

it

hired

these

subcontractors

it

was

acting

as

Cannatelli’s mandatary. Many of these subcontractors and other
suppliers have not been paid for the work they performed. As a
result, they have filed liens on the Burger King project and have
asserted claims against Cannatelli and Dunaway. In light of these
liens and claims, Cannatelli alleges that Dunaway has withheld
several payments it owes Cannatelli. Sunshine also alleges that
Cannatelli has failed to pay it for much of the work it performed
on the Burger King project, and that Cannatelli is responsible for
paying the unpaid subcontractors. Cannatelli argues that it has
paid

Sunshine

approximately

$214,000,

despite

the

fact

that

Sunshine failed to complete all of its work. Cannatelli further
argues

that

Sunshine

is

responsible

for

paying

the

unpaid

subcontractors and suppliers for the Burger King project.
On December 10, 2016, Sunshine submitted a demand letter to
Cannatelli stating that Cannatelli owes Sunshine approximately
$90,000. (R. Doc. 8-2.) On December 22, 2016, Sunshine submitted
another

demand

letter

requesting

Cannatelli

“to

compensate

Sunshine in the sum of $141,124.64 which constitutes the remainder
of the balance due Sunshine for all of its project expenses
including all sums due and owing to any and all [subcontractors].”
(R. Doc. 8-3, at 5.) On January 4, 2017, Sunshine filed suit in
the

Twenty-First

Judicial

District

Court

for

the

Parish

of

Tangipahoa, Louisiana against Cannatelli seeking a declaratory
2

judgment recognizing Sunshine as Cannatelli’s mandatary as to any
and all contracts, obligations, or other matters which arose from
the

Burger

King

project,

and

terminating

that

relationship

retroactively as of January 4, 2017. (R. Doc. 1-1, at 6.) On
February 2, 2017, Cannatelli removed that action to this Court on
the basis of diversity jurisdiction. (R. Doc. 1.) On April 4, 2017,
Sunshine filed the present motion to remand. In short, Sunshine
concedes that complete diversity exists between the parties, but
argues that the amount in controversy does not exceed $75,000. (R.
Doc. 6-1.) In response, Cannatelli argues that the demand letters
sent by Sunshine prove that the amount in controversy exceeds the
$75,000 diversity jurisdiction threshold. (R. Doc. 8.) Sunshine’s
motion is now before the Court on the briefs and without oral
argument.
LEGAL STANDARD
A defendant may remove to federal court “any civil action
brought in a State court of which the district courts of the United
States have original jurisdiction.” 28 U.S.C. § 1441(a). “A federal
district court has subject matter jurisdiction over a state claim
when the amount in controversy is met and there is complete
diversity of citizenship between the parties.” Mumfrey v. CVS
Pharmacy, Inc., 719 F.3d 392, 397 (5th Cir. 2013) (citing 28 U.S.C.
§ 1332(a)). The amount in controversy required by § 1332(a) is
currently $75,000. Id. The Court considers the jurisdictional
3

facts that support removal as of the time of removal. Gebbia v.
Wal-Mart Stores, Inc., 233 F.3d 880, 883 (5th Cir. 2000). Because
removal raises significant federalism concerns, any doubt about
the propriety of removal must be resolved in favor of remand. Gasch
v. Hartford Accident & Indem. Co., 491 F.3d 278, 281-82 (5th Cir.
2007).
When the petition is silent on the exact amount of claimed
damages, the removing party bears the burden of proving “by a
preponderance of the evidence that the amount in controversy
exceeds $75,000.” Grant v. Chevron Phillips Chem. Co., 309 F.3d
864, 868 (5th Cir. 2002) (citing Manguno v. Prudential Prop. &
Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002)). The removing
party can satisfy this burden either: “(1) by demonstrating that
it is ‘facially apparent’ from the petition that the claim likely
exceeds $75,000 or (2) by setting forth the facts in controversy—
preferably in the removal petition, but sometimes by affidavit—
that support a finding of the requisite amount.” Id. (quoting Allen
v. R & H Oil & Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995)).
“Removal,

however,

cannot

be

based

simply

upon

conclusory

allegations.” Allen, 63 F.3d at 1335. If the removing party can
establish by a preponderance of the evidence that the amount in
controversy exceeds the requisite amount, “[t]he plaintiff can
defeat

diversity

jurisdiction

only

by

showing

to

a

‘legal

certainty’ that the amount in controversy does not exceed $75,000.”
4

Grant, 309 F.3d at 869 (citing De Aguilar v. Boeing Co., 47 F.3d
1404, 1412 (5th Cir. 1995)). It is well settled that this is not
a burden-shifting exercise; rather, the “plaintiff must make all
information known at the time he files the complaint.” Id.
DISCUSSION
The

parties

do

not

dispute

that

complete

diversity

of

citizenship exists. See (R. Doc. 6-1, at 4; R. Doc. 8, at 4.)
Consequently, the only issue before the Court is whether Cannatelli
has satisfied its burden of proving that the amount in controversy
exceeds

the

$75,000

threshold

necessary

for

diversity

jurisdiction. The amount in controversy is not facially apparent.
Sunshine seeks declaratory and monetary relief, but Sunshine filed
suit in state court in Louisiana, and Louisiana’s procedural rules
generally do not permit plaintiffs to plead a specific amount of
money damages. Harris v. Winn-Dixie Store No. 1430, No. 16-17697,
2017 WL 511228, at *2 (E.D. La. Feb. 8, 2017) (citing Hammel v.
State Farm Fire & Cas. Co., No. 06-7470, 2007 WL 519280, at *1
(E.D. La. Feb. 14, 2007)). Therefore, the Court must determine
whether Cannatelli has submitted sufficient facts in controversy
to establish that the jurisdictional amount is met from Sunshine’s
perspective. La. Indep. Pharmas. Ass’n v. Catamaran Corp., No. 14598, 2015 WL 1922599, at *6 (M.D. La. Apr. 27, 2015)
Sunshine contends that it only seeks to be recognized as
Cannatelli’s mandatary, for such mandatary-principal relationship
5

to be terminated retroactively, and for Cannatelli to be obligated
to honor any and all obligations which Sunshine entered on behalf
of Cannatelli. (R. Doc. 6-1, at 5-6.) Sunshine concedes it sent
demand letters for sums in excess of $75,000, but argues that if
it is recognized as Cannatelli’s mandatary, the sum which would
flow to Sunshine would be less than $75,000, because Cannatelli
would

be

held

liable

for

all

sums

owed

to

the

unpaid

subcontractors. Cannatelli argues that Sunshine has affirmatively
asserted claims for money damages in excess of $75,000, and even
if Sunshine does not seek monetary damages, Sunshine’s requested
declaratory relief would alleviate Sunshine of its obligation to
pay over $130,000 to the subcontractors. (R. Doc. 8, at 5.)
Cannatelli argues that regardless of the relief requested, the
amount in controversy in this case exceeds $75,000, and Sunshine’s
motion should be denied Id.
Despite
Sunshine

in

Sunshine’s

characterization

fact

a

seeks

declaratory

of

its

judgment

complaint,
that

it

is

Cannatelli’s mandatary, that Cannatelli, rather than Sunshine, is
responsible for paying the unpaid subcontractors, payment for all
services Sunshine rendered but has not been paid for, and for an
award of attorney’s fees and costs. (R. Doc. 1-1, at 6-7.) “In
actions seeking declaratory or injunctive relief the amount in
controversy

is

measured

by

the

value

of

the

object

of

the

litigation” from the plaintiff’s viewpoint. Catamaran Corp., 2015
6

WL 1922599, at *3 (quoting Leininger v. Leininger, 705 F.2d 727,
729 (5th Cir. 1983)). 2 Sunshine’s December 10, 2016 demand letter
to

Cannatelli

position

specifically

that,

at

this

states

time,

that

“[i]t

[Cannatelli]

is

owes

Sunshine’s
the

sum

of

$90,478.84 to Sunshine for services rendered pursuant to the
original

contractual

consideration

of

amount

either

the

provided
revised

by

CBI

contract

and
amount

without
or

any

additional sums owed. . . . Please note that this sum is due and
owing. Further, please note that it is Sunshine’s position that
the sums owed to any and all subcontractors who have not been paid
in full is to be paid from this sum. . . .” (R. Doc. 8-2, at 3.)
The letter goes on to state that Sunshine’s subcontractors have
not been paid an additional $132,887.73. 3 Id. Sunshine’s December
22, 2016 demand letter provides, in relevant part, “please accept
this as a FORMAL DEMAND LETTER demanding [Cannatelli] to compensate
Sunshine in the sum of $141,124.64 which constitutes the remainder
of the balance due Sunshine for all of its project expenses
including all sums due and owing to any and all [subcontractors].”
(R. Doc. 8-3, at 5.) These demand letters were sent shortly before
Sunshine filed suit, the demand letters are several pages and

2

In Leininger the court also stated that “the amount in controversy in an
action for declaratory or injunctive relief, is the value of the right to be
protected or the extent of the injury to be prevented.” Catamaran, 2015 WL
1922599, at *3 n.1 (citing Leininger, 705 F.2d at 729).
3 The letter states, “In addition to the foregoing, it is my appreciation that
the . . . sum presently owed to the [subcontractors] totals $132,887.73.” (R.
Doc. 8-2, at 3.) Thus, the demand letter makes clear that Sunshine seeks at
least $90,000 in addition to $132,887.73 for the unpaid subcontractors.

7

detail Sunshine’s position as to why it believes it is owed the
sums demanded, and Sunshine has not argued in its motion to remand
that the settlement demand was inflated or did not honestly assess
its damages. Accordingly, these pre-petition settlement demands
are “relevant evidence of the amount in controversy at the time of
removal.” See Creppel v. Fred’s Stores of Tenn., Inc., No. 13-734,
2013 WL 3490927, at *3-4 (E.D. La. July 10, 2013) 4 (citing Carver
v. Wal-Mart Stores, Inc., No. 08-42, 2008 WL 2050987 (M.D. La. May
13, 2008); Fairchild v. State Farm Mut. Auto. Ins. Co., 907 F.
Supp. 969, 970-71 (M.D. La. 1995)). The “object” of this litigation
from Sunshine’s viewpoint is the amount of money allegedly owed to
the unpaid subcontractors and additional sums of money it is
allegedly owed for services rendered. Regardless of whether the
Court

determines

that

Sunshine

was

or

was

not

Cannatelli’s

mandatary, the “value” of the object of this litigation is, by
Sunshine’s own admission, at least $90,478.84 and potentially in
excess of $141,124.64. Both of these sums obviously exceed the
$75,000

threshold

to

satisfy

28

U.S.C.

§

1332.

Therefore,

Sunshine’s motion to remand must be denied. Removal of this action
from state court was proper because there is complete diversity of

4

In Creppel, this Court determined that other district courts within the Fifth
Circuit have considered pre-petition demand letters as evidence of the amount
in controversy at the time of removal. Further, “the Fifth Circuit has generally
stated that a defendant may prove by a preponderance of the evidence that the
amount in controversy exceeds $75,000 based on ‘summary judgment type evidence’
of facts in controversy that support a finding of the requisite amount.”
Creppel, 2013 WL 3490927, at *3 (citing Manguno v. Prudential Prop. & Cas. Ins.
Co., 276 F.3d 720, 723 (5th Cir. 2002)).

8

citizenship between the parties, and the amount in controversy at
the time of removal was in excess of $75,000.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Motion to Remand (R.
Doc. 6) is DENIED.
New Orleans, Louisiana this 2nd day of May, 2017.

CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

9