Kohnke v. Norton Lilly International, Inc.

Filing 17

ORDER AND REASONS: IT IS ORDERED that 12 Motion to Remand to State Court is GRANTED. This case is REMANDED to the state court from which it was removed for lack of subject matter jurisdiction. Signed by Judge Jay C. Zainey on 7/26/2017. (ajn) (Additional attachment(s) added on 7/27/2017: # 1 Remand Letter) (ajn).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
NICHOLAS V. KOHNKE

CIVIL ACTION

VERSUS

NO: 17-5422

NORTON LILLY INTERNATIONAL,
INC.

SECTION: "A" (1)

ORDER AND REASONS
The following motion is before the Court: Motion to Remand (Rec. Doc. 12)
filed by Plaintiff, Nicholas V. Kohnke. Defendant Norton Lilly International, Inc.
(hereinafter “Defendant”) opposes the motion. The motion, submitted on July 12, 2017,
is before the Court on the briefs without oral argument
Plaintiff filed suit against Defendant in state court alleging breach of an
employment contract. Plaintiff contends that he was promised at least a two year
commitment from Defendant but he was terminated only eleven months into his
employment. Although his salary was $110,000.00 per year exclusive of benefits,
Kohnke expressly pleaded that he had sustained damages “less than $75,000.” (Rec.
Doc. 1-1, Petition ¶ 15). The prayer for relief is clear and concise: “[J]udgment against
Defendant, Norton Lilly, in an amount to be proven at trial, but less than $74,900.”
(Id. ¶ 16 (emphasis added)). Plaintiff explains that the allegations regarding the damage
quantum were based on the fact that shortly after leaving Defendant’s employ, Plaintiff
obtained a position with another company. Therefore, Plaintiff is only seeking what he
can lawfully recover: six months of lost salary plus the difference in salary for the
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months remaining of the original two year commitment with Defendants—a total that
falls well below the jurisdictional minimum.
Plaintiff moves to remand the case contending that the amount in controversy
requirement for diversity jurisdiction is not satisfied. Defendant contends that
considering only the information actually pleaded, which does not expressly mention
the subsequent employment, the case is removable.
A plaintiff in Louisiana state court, by law, may not specify the numerical value of
the damage claim. La. Code Civ. Pro. art. 893. In such a situation, the removing
defendant must prove by a preponderance of the evidence that the amount in
controversy exceeds $75,000. Luckett v. Delta Airlines, Inc., 171 F.3d 295, 298 (5th Cir.
1999) (citing De Aguilar v. Boeing Co., 11 F.3d 55, 58 (5th Cir. 1993)). The defendant
may make this showing in either of two ways: (1) by demonstrating that it is “facially
apparent” that the claims are likely above $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)).
It is not facially apparent from the Petition that the amount in controversy
exceeds $75,000. Plaintiff specifically alleges, not once but twice, that the recovery
sought is less than $75,000. Whether the allegations are binding in nature is beside the
point. The allegations, even if not binding, at the very least create an ambiguity as to
amount in controversy. Turning to the facts in controversy, they fail to rescue this
removal because the actual facts underlying the damages sought, i.e., that Plaintiff
obtained other employment shortly after being terminated, undermine any suggestion
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that the amount in controversy exceeds $75,000.
Accordingly, and for the foregoing reasons;
IT IS ORDERED that the Motion to Remand (Rec. Doc. 12) filed by
Plaintiff, Nicholas V. Kohnke is GRANTED. This case is REMANDED to the state
court from which it was removed for lack of subject matter jurisdiction.
July 26, 2017

JAY C. ZAINEY
UNITED STATES DISTRICT JUDGE

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