Romeo Entertainment Group v. Showing Animals Respect and Kindness, et al

Filing 32

REPORT AND RECOMMENDATION that MOTION to Remand 14 be denied. Pursuant to NECivR 72.3, a party may object to a this Report andRecommendation by filing an "Objection to Report and Recommendation"within ten (10) days after being served with the recommendation. Ordered by Magistrate Judge F. A. Gossett. (CLS, )

IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF NEBRASKA R O M E O ENTERTAINMENT GROUP, ) I N C ., a Nebraska Corporation, ) ) P l a i n t i f f, ) ) vs. ) ) S H O W I N G ANIMALS RESPECT AND ) K I N D N E S S , INC., d/b/a SHARK, an ) I llin o is Corporation, et al., ) ) D e f e n d a n t s. )

8 :0 8 C V 4 8 1 R E P O R T AND R E C O M M E N D A T IO N

T h is matter is before the magistrate judge pursuant to 28 U.S.C. § 636 and the general o rd e r of referral for a Report and Recommendation on the plaintiff's Motion (Doc. 14) to re m a n d the case to state court. The matter has been fully briefed. For the reasons discussed b e lo w , I recommend that the motion be denied. BACKGROUND P la in tif f filed this case in the Douglas County District Court seeking damages for to r tio u s interference with contractual relationships, injunctive relief, and punitive damages. D e f e n d a n t ("SHARK") timely removed the matter to federal court pursuant to 28 U.S.C. § 1 4 4 6 , alleging that this court has subject matter jurisdiction pursuant to 28 U.S.C. § 1 3 3 2 ( a )( 1 ), as the parties are citizens of different states and the amount in controversy e x c ee d s $75,000.

T h e complaint alleges that plaintiff is a talent buyer and promoter. Plaintiff produces a n d promotes live entertainment events at venues throughout the United States, including ro d e o venues such as the Cheyenne Frontier Days Celebration in Cheyenne, Wyoming; the G ree ley Stampede in Greeley, Colorado; and River City Round-up in Omaha, Nebraska. In s u m m a ry, plaintiff alleges that the defendant tortiously interfered with plaintiff's contractual re la tio n s h ip s with certain entertainers by contacting the entertainers and encouraging them to breach their contracts to perform at Cheyenne Frontier Days. SHARK allegedly stated that it will continue to contact entertainers scheduled to perform at Cheyenne Frontier Days and o th e r rodeo events in order to induce the entertainers to breach their contracts to perform at th o s e events. P a r a g ra p h 49 of the Complaint states: A s of [September 26, 2008], Plaintiff has suffered damages in excess o f $100,000. Plaintiff has also incurred damages for the following: show m a rk e tin g costs, show preparation costs, time and expense spent booking and lo o k i n g for replacement artists, refunds of sold tickets, legal expenses, lost p r o f its , and reputation damages.

L E G A L ANALYSIS In its Motion for Remand, plaintiff contends that the amount in controversy does not e x c e e d the sum of $75,000 because, three days before the case was removed to federal court, p la in tif f reached a confidential settlement with one of the entertainers and the amount it can

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re c o v er from SHARK is now less than $75,000. Defense counsel was notified of the s e ttle m e n t the day after the case was removed. P u r s u a n t to 28 U.S.C. § 1332(a), the federal district court has diversity jurisdiction " w h e re the matter in controversy exceeds the sum or value of $75,000." Section 1332(a) re q u ire s that the amount in controversy be computed "exclusive of interest and costs." When c a lcu latin g the amount in controversy, "statutory attorney fees" are to be included in the total, R a s m u s s e n v. State Farm Mut. Auto. Ins. Co., 410 F.3d 1029, 1031 (8th Cir. 2005), as are statu to ry penalties. Mates v. Butterball, LLC, 2007 WL 2407031 at*2, Case No. 4:07CV3130 (D . Neb., Aug. 20, 2007) (citing Peacock, Inc. v. Stuyvesant Ins. Co., 332 F .2d 499, 501-02 (8th Cir. 1964)). In general, the party invoking federal jurisdiction bears the burden of proving the ju ris d ic tio n a l requirements. OnePoint Solutions, LLC v. Borchert, 486 F.3d 342 (8th Cir. 2 0 0 7 ); Rasmussen v. State Farm Mut. Auto. Ins. Co., 410 F.3d at 1031. The facts establishing th e jurisdictional amount must be determined as of the time of removal. See James Neff K r a m p e r Family Farm Partnership v. IBP, Inc., 393 F.3d 828, 831 (8th Cir. 2005). The sum c la im e d by the plaintiff generally controls if the claim is apparently made in good faith. See S t. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288 (1938). Notwithstanding any payments made to plaintiff pursuant to the confidential se ttle m e n t agreement, the state court complaint was not amended prior to its removal to

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f e d era l court.1 Issues remain pending regarding plaintiff's show marketing costs, show p r e p a r a tio n costs, time and expense spent booking and looking for replacement artists, re f u n d s of sold tickets, legal expenses, lost profits, reputation damages, and punitive d a m a g e s . On the face of the pleading, at the time of the removal, the plaintiff still sought the re c o v ery of an amount exceeding $100,000. T h e court finds that the matter in controversy exceeded the sum or value of $75,000 a t the time of removal. Therefore, I T IS RECOMMENDED that plaintiff's Motion to Remand (Doc. 14) be denied. P u rs u a n t to NECivR 72.3, a party may object to a this Report and R e c o m m e n d a tio n by filing an "Objection to Report and Recommendation" w ith in ten (10) days after being served with the recommendation. The sta tem e n t of objection shall specify those portions of the recommendation to w h ich the party objects and the basis of the objection. The objecting party shall f ile contemporaneously with the statement of objection a brief setting forth the p a rty's arguments that the magistrate judge's recommendation should be re v ie w e d de novo and a different disposition made. D A T E D February 5, 2009. B Y THE COURT: s / F.A. Gossett U n ite d States Magistrate Judge

Apparently, plaintiff filed an amended complaint in state court the day after SHARK f ile d its Notice of Removal. See Doc. 24-2 at p. 31/48. -4 -

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