Campbell v. Elder Chrysler Dodge Jeep L L C

Filing 11

MEMORANDUM RULING denying 5 Motion to Remand, and the associated request for costs and attorney's fees related to the removal and remand of the lawsuit 10 , filed by Plaintiff. Signed by Magistrate Judge Karen L Hayes on 12/10/13. (crt,DickersonSld, D)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
MONROE DIVISION
LINDA DIONNE FRANKLIN CAMPBELL

CIVIL ACTION NO. 13-2853

VERSUS

JUDGE ROBERT JAMES

ELDER CHRYSLER-DODGE-JEEP, LLC

MAG. JUDGE KAREN HAYES

MEMORANDUM RULING
Before the undersigned magistrate judge, on reference from the district court, is a Motion
to Remand, [doc. # 5], and an associated request for costs and attorney’s fees, [doc. # 10], filed
by Plaintiff Linda Dionne Franklin Campbell.1 The Motion is opposed. For reasons stated
below, the Motion to Remand is DENIED and the associated request for costs and fees is
DENIED.
Background
On September 11, 2013, Plaintiff filed a “Petition For Declaratory Judgment” in the Third
Judicial District Court, Parish of Union, State of Louisiana, against Defendant Elder ChryslerDodge-Jeep. [doc. # 1-2]. Relevant to the issues here, Plaintiff alleged:
On or about July 3, 2013, [Plaintiff] and [Defendant] entered into a vehicle sales
agreement (“Agreement”) whereby Plaintiff sold her [2012 truck] to Defendant and
simultaneously purchased a [2013 truck] from Defendant.
As a result of the Agreement, [Plaintiff] had a balance due to [Defendant] of
approximately $33,508.54.
Prior to executing the Agreement, [Defendant] dispatched an agent to [Plaintiff’s]
residence in Farmerville, Louisiana.
1

As this is not a motion excepted in 28 U.S.C. § 636(b)(1)(A), nor dispositive of any
claim on the merits within the meaning of Rule 72 of the Federal Rules of Civil Procedure, this
Ruling is issued under the authority thereof, and in accordance with the standing order of this
Court. Any appeal must be made to the district judge in accordance with Rule 72(a) and L.R.
74.1(W).

Upon arrival, [Defendant’s] agent executed the Agreement with [Plaintiff] and
delivered the 2013 truck to [Plaintiff].
Simultaneous to the delivery of the 2013 truck, [Defendant] accepted [Plaintiff’s]
2012 truck.
***
On July 12, 2013, [Defendant] sent [Plaintiff] an email informing her that
[Defendant] would not perform under the Agreement, alleging defects in the exhaust
system [of the 2012 truck], and that [Defendant] intended to withhold title to the
2013 truck.
***
On July 29, 2013, [Defendant] sent [Plaintiff] a letter in which [Defendant] made
demand upon her for the amount of $10,136.34 (ostensibly related to the exhaust
system) and the attorney’s fees or, alternatively, for the return of the 2013 vehicle and
attorney’s fees.
[Plaintiff] has suffered economic damages, emotional distress, and mental anguish
as a result of [Defendant’s] behavior.
[doc. # 1-2, p. 1-2]. As a result of the alleged events, Plaintiff requested the following relief: (1)
A declaratory judgment determining that Defendant’s actions constituted bad faith breach of
contract; (2) A declaratory judgment determining that Plaintiff is entitled to economic damages
and mental anguish damages that have resulted from Defendant’s breach of contract; (3) A
declaratory judgment that Plaintiff is a consumer under the Louisiana Unfair Trade Practices Act
(“LUTPA”); (4) A declaratory judgment that Defendant’s actions constitute unfair or deceptive
acts pursuant to the LUTPA; (5) A declaratory judgment that Plaintiff is entitled to attorney’s
fees and costs; and (6) All other legal and general relief to which Plaintiff may be entitled. Id. at
2-3.
On October 11, 2013, Defendant removed this matter on the basis of diversity and federal
question jurisdiction. [doc. # 1]. On November 4, 2013, Plaintiff filed the instant Motion to
2

Remand the case to the state court on the basis that the amount in controversy does not exceed
$75,000 and that there is no federal question at issue. [doc. # 5]. Defendant filed its opposition
on November 21, 2013. [doc. # 7]. Plaintiff filed her Reply on December 3, 2013. [doc. # 10].
Briefing is now complete; the matter is before the Court.
Law and Analysis
Federal courts are courts of limited jurisdiction. Howery v. Allstate Ins. Co., 243 F.3d
912, 916 (5th Cir. 2001). Thus, a suit is presumed to lie outside this limited jurisdiction unless
and until the party invoking federal jurisdiction establishes otherwise. Id. Federal law authorizes
the removal to federal court of “any civil action brought in a State court of which the district
courts of the United States have original jurisdiction . . . .” 28 U.S.C.A. § 1441(a).
In this case, Defendant first invokes this Court’s original jurisdiction via diversity, which
requires complete diversity of citizenship between the adverse parties and an amount in
controversy greater than $75,000. 28 U.S.C.A. § 1332(a). Plaintiff does not contest that the
parties are diverse; rather, she disputes Defendant’s contention that the amount in controversy
exceeds the jurisdictional minimum.
Pursuant to the Federal Courts Jurisdiction and Venue Clarification Act of 2011, the
removal statute now specifies:
If removal of a civil action is sought on the basis of the jurisdiction conferred by
section 1332(a), the sum demanded in good faith in the initial pleading shall be
deemed to be the amount in controversy, except that-(A) the notice of removal may assert the amount in controversy if the
initial pleading seeks–
(i) nonmonetary relief; or

3

(ii) a money judgment, but the State practice either does not permit
demand for a specific sum or permits recovery of damages in excess
of the amount demanded . . . .
28 U.S.C.A. § 1446(c)(2)(A). When, as permitted above, the amount in controversy is derived
from the notice of removal, the removing defendant must demonstrate by a preponderance of the
evidence that the amount in controversy exceeds the jurisdictional minimum. Id. §
1446(c)(2)(B); De Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir. 1995) (removing party
bears the burden of establishing federal jurisdiction).2
“To satisfy the preponderance standard, the removing defendant may support federal
jurisdiction either by establishing that it is ‘facially apparent’ that the claims probably exceed
$75,000 or by establishing the facts in controversy in the removal petition or [summary
judgment-type evidence] to show that the amount-in-controversy is met.” Felton v. Greyhound
Lines, Inc., 324 F.3d 771, 774 (5th Cir. 2003); accord St. Paul Reinsurance Co. v. Greenberg,
134 F.3d 1250, 1254 (5th Cir. 1998). Removal cannot be supported by conclusory allegations,
however. Simon v. Wal-Mart Stores, Inc., 193 F.3d 848, 850 n.7 (5th Cir. 1999). In the same
way, a defendant must do more than assert that a state law might allow a plaintiff to recover more
than what is pled; the defendant must set forth evidence that establishes that the actual amount in
controversy exceeds $75,000. See De Aguilar, 47 F.3d at 1412. If the defendant establishes by a
preponderance of the evidence that the amount in controversy is greater than the jurisdictional
amount, remand is proper only if the plaintiff then “demonstrates to a legal certainty that [she]

2

When resolving a motion to remand, it is axiomatic that the court looks at jurisdictional
facts as they exist at the time the case was removed. Asociacion Nacional de Pescadores v. Doe
Quimica, 988 F.2d 559, 565 (5th Cir. 1993), abrogated on other grounds by Marathon Oil Co. v.
A.G. Ruhrgas, 145 F.3d 211 (5th Cir. 1998) (“ANPAC”).
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can not recover more than the jurisdictional amount.” In re Exxon Chem. Fire, 558 F.3d 378,
388 (5th Cir. 2009).
Here, consistent with Louisiana law prohibiting plaintiffs from pleading specific amounts
of monetary damages3, Plaintiff’s Petition does not set forth damages with any specificity. [doc.
# 1-2]. Plaintiff does, however, present a post-removal affidavit stating that “damages in the
matter . . . will not exceed $60,000.” [doc. # 5-2, p. 5]. Where, as here, the basis for jurisdiction
is ambiguous, “post-removal affidavits may be considered in determining the amount in
controversy . . . .” See Gebbia v. Wal-Mart Stores, Inc., 233 F.3d 880 (5th Cir. 2000) (citing,
ANPAC, supra). However, Plaintiff’s affidavit is not binding because under Louisiana law a
plaintiff is permitted to recover more than she has demanded. Grant v. Chevron Phillips Chem.
Co., 309 F.3d 864, 869 (5th Cir. 2002) (citing LA . CODE CIV . PROC. Art. 862). In other words,
Plaintiff’s affidavit does not change the analysis and Defendant may rebut Plaintiff’s allegation
regarding damages by demonstrating by a preponderance of the evidence that the amount in
controversy actually exceeds the jurisdictional minimum. 28 U.S.C.A. § 1446(c)(2)(B); De
Aguilar, supra.
I. Defendant Has Met Its Burden
Defendant primarily contends that the amount in controversy is met because the
combined value of the two trucks exceeds $100,000. [doc. # 1, p. 3]. Defendant pads its
calculation by pointing out that Plaintiff demands attorney’s fees and alleges that she suffered
economic damages, emotional distress, and mental anguish. [doc. # 7, p. 9, 12]. In contrast,
Plaintiff contends that the $10,136.34 that Defendant demanded is the core of the amount in
3

See LA . CODE CIV . PROC. Art 893.
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controversy. [doc. # 10, p. 4]. Plaintiff contends that if she prevails she will not have to pay this
amount and if Defendant prevails it will receive that amount from Plaintiff.
In actions seeking declaratory relief “it is well established that the amount in controversy
is measured by the value of the object of the litigation.” Hunt. Wash. State Apple Adver.
Comm’n, 432 U.S. 333, 347 (1977). Similarly, when the “right to property is called into question
in its entirety, the value of the property controls the amount in controversy.” Waller v. Prof’l Ins.
Corp., 296 F.2d 545, 547-48 (5th Cir. 1961). Courts look to the disputed property’s value rather
than the damages that might be suffered. Id. at 548.
For instance, in Waller, an insured brought suit against an insurer and two Florida
insurance commission officials in federal court, premised upon diversity jurisdiction, for a wide
variety of relief. Id. at 547. The plaintiff purchased a single premium life insurance policy from
Professional Insurance Corporation (“Professional”) in the amount of $50,000. Id. at 546. The
plaintiff borrowed $22,950 from Professional to finance his payment of the premium of
$22,971.18. Id. He executed a “policy loan note” to Professional to cover this debt, promising to
pay interest at the rate of 4% per annum. Id. Years later, Professional discovered that the
interest rate should have been 5%. Id. Professional wrote to plaintiff, demanding $3,835.63 in
back interest. Id. The Fifth Circuit held that the amount in controversy was not simply the
difference between the 4% interest actually collected upon the note and the 5% interest that
Professional sought to collect; rather, the amount in controversy was the value of the entire
policy. Id. at 547. The court explained:
The plaintiff's complaint, the good faith of which is not contested, makes it
impossible to restrict the issues to the narrow confines of the insurance company's
claim for back interest payments allegedly due. The validity of this claim depends
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on the validity of the $50,000 insurance policy and the $23,000 note. It may well be,
as the plaintiff alleges, that the Court will determine that the note or the note and
policy together were invalid initially because of illegality or mistake or for some
other reason; Waller's complaint effectively puts these questions in issue. Or the
Court may find that the 4% rate stated in the note is binding and the contract valid.
However the Court may decide, it cannot limit its inquiry to Professional's claim to
back interest; it must rule on the validity of the underlying agreements to which the
interest rate applies. Since the relief sought requires an adjudication of the legal
effect of the insurance policy and the policy loan, their values determine the amount
in controversy. Home Ins. Co. of New York v. Trotter, 8 Cir., 1942, 130 F.2d 800;
see C. E. Carnes & Co. v. Employers' Liability Assur. Corporation, Limited of
London, England, 5 Cir., 1939, 101 F.2d 739.
Id.
Here, Plaintiff is seeking an array of declaratory relief, all of which centers around the
object of the litigation: the 2013 truck (or Plaintiff’s right to the 2013 truck). [doc. # 1-2, p. 23]. Despite Plaintiff’s argument, the amount in controversy does not center around the
$10,136.34 that Defendant demands from Plaintiff. Although this amount could possibly
constitute the damages that Plaintiff has suffered, the Court will look to the value of the
disputed property rather than the damages that may be suffered. As in Waller, it is impossible to
restrict the issue to the narrow confines of Defendant’s demand for $10,136.34 because the
validity of either parties’ arguments ultimately depends on the validity of the underlying
agreement.
The value of the 2013 truck, according to the declaration of John Hayden Elder
presented by Defendant, is $60,266.00. [doc. # 7-1, p. 1]. Defendant also presents a portion of
the Agreement which confirms the price of the 2013 truck. Id. at 3. As explained below, this
amount, when added to Plaintiff’s demand for attorney’s fees, exceeds the requisite amount in
controversy.

7

Plaintiff’s Petition seeks attorney’s fees pursuant to LA . CIV . CODE art. 1997. [doc. # 12, p. 3]. It is well established that statutory attorney’s fees can be included in determining the
jurisdictional amount. Foret v. S. Farm Bureau Life Ins. Co., 918 F.2d 534, 536 (5th Cir. 1991).
However, Article 1997 does not provide for an award of attorney’s fees. Ocmand v. Lubrano,
78 So. 3d 783, 791 (La. App. 5 Cir. 2011). Nevertheless, Plaintiff also seeks a declaratory
judgment that Defendant’s activities constitute a breach of the LUTPA. [doc. # 1-2, p. 3].
Although Plaintiff styles her request as one for declaratory judgment, it is clear that attorney’s
fees could be awarded under LUTPA because Plaintiff also seeks “all other legal and general
relief to which she may be entitled.” Id.
Reasonable attorney fees are available under the LUTPA if damages are awarded. LA .
REV . STAT . ANN . § 51:1409(A). When reasonable attorney’s fees are added to the value of the
2013 truck, the amount in controversy is easily met. Plaintiff’s other claims for economic
damages, emotional distress, and mental anguish bolster this result. In sum, Defendant has
established jurisdiction by a preponderance of the evidence via the use of summary judgementtype evidence.
II. Plaintiff Has Failed To Meet Her Burden
Because Defendant has met its burden, Plaintiff must now show that it is legally certain
that her recovery will not exceed $75,000. Plaintiff only attempts to meet this burden by
providing a post-removal declaration stating that “damages in the matter . . . will not exceed
$60,000.” [doc. # 5-2, p. 5]. However, although Plaintiff’s affidavit can be considered, it has
no effect on the propriety of removal here. Aside from the declaration, Plaintiff makes no
further attempt to meet this burden; her remaining arguments only attempt to rebut Defendant’s
8

averment that it has established jurisdiction by a preponderance of the evidence. Consequently,
Plaintiff has not shown to a legal certainty that her recovery will not exceed $75,000.
Accordingly, Defendant has sufficiently shown that the amount in controversy exceeds
$75,000 and has thus properly invoked this Court’s subject matter jurisdiction under 28
U.S.C.A. § 1332(a).4
Conclusion
For the foregoing reasons,
IT IS ORDERED that the Motion to Remand, [doc. # 5], and the associated request for
costs and attorney’s fees related to the removal and remand of the lawsuit, [doc. # 10], filed by
Plaintiff Linda Dionne Franklin Campbell, are hereby DENIED.
THUS DONE AND SIGNED in chambers, at Monroe, Louisiana, this 10th day of
December, 2013.

4

Because the Court has found that jurisdiction is proper via diversity, the Court need not
consider Defendant’s averment that this Court also has federal question jurisdiction.
9