Handshoe v. Broussard et al

Filing 46

ORDER REMANDING CASE TO STATE COURT: Ordered that this case is remanded to the Circuit Court of Hancock County, Mississippi, Second Judicial District. Signed by Chief District Judge Louis Guirola, Jr on 9/23/13. (JCH)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
DOUGLAS HANDSHOE

PLAINTIFF

v.

CAUSE NO. 1:13CV251-LG-JMR

AARON F. BROUSSARD, ET AL.

DEFENDANTS

ORDER REMANDING CASE TO STATE COURT
THIS MATTER IS BEFORE THE COURT sua sponte for the purpose of
determining whether the amount in controversy is satisfied pursuant to 28 U.S.C. §
1332. On August 6, 2013, this Court entered an Order requiring the parties to
provide briefs concerning subject matter jurisdiction. After reviewing the parties’
briefs and the applicable law, the Court finds that the amount in controversy is not
satisfied and that this case must be remanded to state court.
BACKGROUND
Trout Point Lodge, Vaughn Perret, and Charles Leary filed a lawsuit against
Douglas Handshoe in the Supreme Court of Nova Scotia on September 1, 2011,
alleging that Handshoe had defamed them in internet blog posts. Trout Point,
Perret, and Leary obtained a default judgment against Handshoe. Because
Handshoe is a Mississippi resident, the judgment was enrolled in the Circuit Court
of Hancock County, Mississippi. Handshoe removed the action to this Court, and he
argued that the judgment was not enforceable pursuant to the Securing the
Protection of our Enduring and Established Constitutional Heritage Act (the
“SPEECH Act”), 28 U.S.C. § 4102. (See Trout Point Lodge, Ltd., et al. v. Handshoe,

Cause No. 1:12cv90-LG-JMR (hereinafter referred to as “Handshoe I”)). This Court
granted summary judgment in Handshoe’s favor. The United States Court of
Appeals for the Fifth Circuit affirmed this Court’s entry of summary judgment on
September 5, 2013. (Handshoe I, ECF Nos. 35, 36). Handshoe recently filed a
Motion in that lawsuit seeking attorneys’ fees totaling approximately $55,000
pursuant to the SPEECH Act. (Handshoe I, ECF No. 50).
The present lawsuit was filed by Handshoe on May 21, 2013, naming Trout
Point, Leary, Perret, Aaron Broussard, Daniel Abel, Chris Yount, and Nova Scotia
Enterprises, LLC, as defendants. (See Handshoe v. Aaron Broussard, et al., Cause
No. 1:13cv251-LG-JMR (hereinafter referred to as “Handshoe II”)). Handshoe has
asserted civil conspiracy, malicious prosecution, and abuse of process claims arising
out of the September 2011 lawsuit filed in Canada as well as several other legal
proceedings filed against Handshoe by one or more of the defendants. This Court
ordered the parties to submit briefs concerning subject matter jurisdiction, because
the amount of damages sought by Handshoe in his Complaint was unclear.
DISCUSSION
28 U.S.C. § 1332 confers federal diversity jurisdiction over civil actions where
the matter in controversy exceeds the sum or value of $75,000, exclusive of interest
and costs, and the civil action is between citizens of different states. It is
undisputed that diversity of citizenship exists in this lawsuit, and the only issue is
the amount in controversy. The burden is on the party who removed the case to

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federal court to demonstrate that federal jurisdiction exists. De Aguilar v. Boeing
Co., 47 F.3d 1404, 1408 (5th Cir. 1995).
When the complaint does not specify the dollar amount in controversy, the
defendant must prove by a preponderance of the evidence that the amount in
controversy exceeds $75,000. De Aguilar v. Boeing Co., 11 F.3d 55, 58 (5th Cir.
1993). There are two ways in which defendants can satisfy this burden. First, the
defendants may show that it is facially apparent from the complaint that the
plaintiff’s claims are likely to exceed $75,000. Garcia v. Koch Oil Co. of Tex., 351
F.3d 636, 639 (5th Cir. 2003). If the amount in controversy is not facially apparent,
the defendants “may support federal jurisdiction by setting forth the facts – [either]
in the removal petition [or] 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)).
The jurisdictional facts supporting removal must be judged at the time of
removal. Gebbia v. Wal-Mart Stores, Inc., 233 F.3d 880, 883 (5th Cir. 2000). Postremoval affidavits may be considered in determining the amount in controversy at
the time of removal only if the basis for jurisdiction is ambiguous at the time of
removal. Id.
The defendants filed briefs asking the Court to construe Handshoe’s
Complaint in a manner that would demand punitive damages, seek the dismissal of
lawsuits pending in other jurisdictions, and request that the Canadian judgment be

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overturned. The defendants argue that the Court should add the value of the
Canadian judgment and other lawsuits filed by the defendants against Handshoe
to the amount in controversy claimed by Handshoe. The defendants also rely on the
fact that Handshoe is demanding approximately $55,000 in attorneys’ fees pursuant
to the SPEECH Act in the Handshoe I lawsuit. Certain defendants also accuse
Handshoe of fraudulently asserting that the amount in controversy is less than
$75,000.
The Court is not persuaded the defendants’ arguments that Handshoe may
later seek damages exceeding $75,000. Handshoe’s Complaint makes no reference
to punitive damages, and in affidavits filed one month after removal of the case to
this Court, Handshoe stated that his damages totaled $25,000. (Handshoe II, ECF
Nos. 19-1, 20-1, 24-1). In his brief concerning subject matter jurisdiction, Handshoe
itemized those damages and specifically stated that the damages he sought at the
time of removal totaled $25,000. He also submitted an affidavit in which he
specifically disavowed his right to recover any damages in excess of $74,999.99 in
this lawsuit. The defendants have not provided the Court with any evidence that
disputes the amount of damages claimed by Handshoe.
The defendants’ argument that Handshoe is asking this Court to dismiss
foreign lawsuits and overturn the Canadian default judgment entered against him
is also without merit. Handshoe only demands monetary damages in the present
lawsuit; he does not ask the Court to overturn the Canadian judgment. In fact, he
successfully disputed this Court’s ability to enforce that judgment in Handshoe I.
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That lawsuit was decided in Handshoe’s favor, and the fact that Handshoe is
seeking attorneys’ fees in that separate lawsuit does not affect the amount in
controversy in the present lawsuit. Handshoe also does not specifically ask the
Court to dismiss or invalidate other lawsuits pending against him in other
jurisdictions.
Neverthless, the defendants argue that Handshoe is effectually seeking to
overturn the Canadian judgment and invalidate other lawsuits, because he has filed
malicious prosecution and abuse of process claims related to those lawsuits. A
malicious prosecution claim does not seek dismissal of a lawsuit or revocation of a
judgment; rather, it presupposes that the prior lawsuit has previously been
dismissed or otherwise terminated in the plaintiff’s favor.1 Furthermore, the issue
in an abuse of process action is not whether a judgment has been entered but the
intent motivating the desire to obtain that judgment and the illegal use of that
judgment.2 Therefore, there is no indication that Handshoe is asking the Court to

1

The elements of a malicious prosecution claim are “(1) the institution of a
proceeding; (2) by, or at the insistence of the defendant; (3) the termination of such
proceeding in the plaintiff’s favor; (4) malice in instituting the proceedings; (5) want
of probable cause for the proceeding; and (6) the suffering of the injury or damage as
a result of the prosecution.” Perkins v. Wal-Mart Stores, Inc., 46 So. 3d 839, 844
(¶10) (Miss. Ct. App. 2010) (emphasis added).
2

The elements of an abuse of process claim are: (1) the party made an illegal
use of the process, a use neither warranted nor authorized by the process, (2) the
party had an ulterior motive, and (3) damage resulted from the perverted use of
process.” Cent. Healthcare Servs., P.A. v. Citizens Bank of Philadelphia, 12 So. 3d
1159, 1167 (¶21) (Miss. Ct. App. 2009). The most important element is “the intent
to abuse the privileges of the legal system.” Ayles ex rel. Allen v. Allen, 907 So. 2d
300, 303 (¶10) (Miss. 2005).
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overturn the Canadian judgment or invalidate other lawsuits filed by the
defendants.
The defendants have failed to demonstrate that this Court has subject matter
jurisdiction over this lawsuit. As a result, the case must be remanded to state
court.
CONCLUSION
For the foregoing reasons, this lawsuit is remanded to state court.
IT IS, THEREFORE, ORDERED AND ADJUDGED that this lawsuit is
REMANDED to the Circuit Court of Hancock County, Mississippi, Second Judicial
District.
IT IS, FURTHER, ORDERED AND ADJUDGED that a certified copy of
this order of remand shall be immediately mailed by the Clerk of this Court to the
clerk of the state court pursuant to 28 U.S.C. § 1447(c).
SO ORDERED AND ADJUDGED this the 23th day of September, 2013.

s/

Louis Guirola, Jr.

LOUIS GUIROLA, JR.
CHIEF U.S. DISTRICT JUDGE

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