Plum Creek Marketing, Inc. v. Hazlehurst Lumber Company, Inc.

Filing 16

ORDER denying Defendant's 5 Motion to Dismiss for Lack of Jurisdiction. Signed by District Judge Keith Starrett on September 21, 2011 (dsl)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
HATTIESBURG DIVISION

PLUM CREEK MARKETING, INC.
VERSUS

PLAINTIFF
CIVIL ACTION NO. 2:11cv155KS-MTP

HAZELHURST LUMBER COMPANY, INC.

DEFENDANT

MEMORANDUM OPINION AND ORDER
This matter is before the court on a Motion to Dismiss [#5] filed on behalf of the
defendant, Hazelhurst Lumber Company, Inc. (“Hazelhurst”). The court, having
reviewed the motion, the response, the briefs of counsel, the pleadings and exhibits on
file, and being otherwise fully advised in the premises finds that the motion is not well
taken and should be denied. The court specifically finds as follows:
Hazlehurst has moved to dismiss the Complaint filed in this case pursuant to
Rule 12(b)(1) of the Federal Rules of Civil Procedure alleging that the court lacks
subject matter jurisdiction by virtue of the allegation that the amount in controversy,
exclusive of interest and costs is less than $75,000.00. Specifically, Hazelhurst alleges
that the plaintiff, Plum Creek Marketing, Inc. (“Plum Creek”) filed this action on an open
account seeking a specified sum or $73,829.71. Plum Creek responds that it is also
seeking statutorily allowed attorney fees which, when aggregated with the underlying
demand, causes this controversy to exceed the jurisdictional threshold of $75,000.
A Rule 12(b)(1) motion attacks the court’s jurisdiction to hear and to decide any
issues in the case and therefore the court must address that at any time during the

pendency of the litigation that is asserted or even indeed upon its own motion. See
Williamson v. Tucker, 645 F. 2d 404 (5th Cir. 1981). It is well settled that on a 12(b)(1)
motion the court may go outside the pleadings and consider additional facts, whether
contested or not and may even resolve issues of contested facts.
In addressing most motions to dismiss based on the amount in controversy
requirement, the court is usually faced with a situation where the plaintiff is seeking
remand asserting that his claim is worth less than the jurisdictional threshold of this court.
Only rarely is this mechanism used as a defensive tool. Nevertheless, the principles of
jurisdiction remain unchanged. As a general rule “[u]nless the law gives a different rule,
the sum claimed by the plaintiff controls if the claim is apparently made in good faith.” De
Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir. 1995) (quoting St. Paul Mercury
Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288, 58 S. Ct. 586, 590, 82 L. Ed. 845
(1938)).

In the present case, there is no allegation that Plum Creek’s claim is made in bad
faith. To the contrary, Hazelhurst contends that Plum Creek should be limited to the
exact amount sought in its demand for payment in this collection action on an open
account. As stated previously, Plum Creek contends that it is also seeking statutorily
allowed attorney fees and that such should be aggregated with the alleged unpaid debt
to meet the jurisdictional threshold of this court. Indeed, attorney fees are generally
included in determining whether the jurisdictional amount is satisfied. See Foret v.
Southern Farm Bureau Life Insurance Co., 918 F.2d 534, 537 (5th Cir. 1990) (citing
Graham v. Henegar, 640 F.2d 732, 735 (5th Cir. 1981) and Premier Indus. Corp. v.
Texas Indus. Fastener Corp., 450 F.2d 444, 447 (5th Cir. 1971)).
-2-

Of course, as the party invoking the court’s subject matter jurisdiction, Plum
Creek must establish “the amount in controversy by a preponderance of the evidence.”
Sun Life Assurance Co. of Canada (U.S.) v. Fairley, 485 F. Supp. 2d 731, 734 (S.D.
Miss. 2007) (citation omitted). It is appropriate for this court to look to the underlying
suit to determine if it is more likely than not that the jurisdictional minimum is met. See
Hartford Ins. Group. v. Lou-Con, Inc., 293 F.3d 908, 911 (5th Cir. 2002) (“district court
properly measured the jurisdictional amount in controversy by the value of the
underlying claim”); Burlington Ins. Co. v. BAL Enters., LLC, 2007 WL 4293191, at *2
(S.D. Miss. 2007) (looking to the amount claimants sought to recover in the underlying
action); Liberty Surplus Ins. Corp. v. Slick Willie’s of Am., 2007 WL 1795860, at *4 (S.D.
Tex. June 21, 2007) (“facially apparent from the underlying state-court petitions that the
amount in controversy . . . will likely exceed $75,000”); Nationwide Mutual Ins. Co. v.
Lake Caroline, Inc., 2006 WL 2805140, *1 (S.D. Miss. 2006) (amount in controversy
“may be determined by reference to the amount sought in state court”).
It is “facially apparent” from a review of the Complaint that the amount in
controversy in this action exceeds $75,000. The Complaint seeks an unpaid principal
balance of $73,829.71 plus attorney fees of 33 1/3% under Miss. Code Ann. § 11-53-81
for a total claim of $101,875.00. The specific damages alleged in the underlying suit
evidence that the value of the underlying claim “probably” exceeds $75,000. See Felton
v. Greyhound Lines, Inc., 324 F.3d 771, 773 (5th Cir. 2003) (amount in controversy
requirement is met if it is established that “claims probably exceed $75,000”).
To refute the asserted jurisdictional argument by Plum Creek, Hazelhurst only
argues that the Mississippi attorney fees statute provides for a “reasonable” attorney fee
-3-

and that such is subject to a proper evidentiary hearing to determine the appropriate
amount. This argument has no merit under the facts of this case and the well-settled
law. Plum Creek has made a clear showing that the amount in controversy more than
likely exceeds the jurisdictional threshold of this court.
IT IS THEREFORE ORDERED AND ADJUDGED that the Motion to Dismiss [#5]
filed on behalf of Hazelhurst Lumber Company, Inc. is denied.
SO ORDERED AND ADJUDGED, this the 21st day of September, 2011.
s/Keith Starrett
UNITED STATES DISTRICT JUDGE

-4-