Praetoria Group, LLC. v. Octavian Security Americas et al
Filing
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OPINION AND ORDER by Judge James H Payne ; denying 15 Motion to Remand (pll, Dpty Clk)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
1. PRAETORIA GROUP, LLC, (AN
OKLAHOMA LIMITED LIABILITY
COMPANY),
Plaintiff,
v.
Case No. 13-CV-00818-JHP-TLW
1. OCTAVIAN SECURITY AMERICAS,
(AN ARIZONA LIMITED LIABILITY
COMPANY),
Defendant.
2. SUKHJIT “SUKHI” GHUMAN,
Defendants.
OPINION AND ORDER
Before the Court are Plaintiff’s Motion to Remand (Doc. 15) and Defendants’ Response
and Objection to Plaintiff’s Motion to Remand (Doc. 16). After review of the briefs, and for the
reasons set forth below, the Plaintiff’s Motion to Remand is DENIED.
On December 27, 2013, this case was removed to this Court from the Tulsa County
District Court pursuant to 28 U.S.C. § 1441. In the Notice of Removal (Doc. 2), Defendants
assert that this Court has jurisdiction over this matter based on diversity of citizenship pursuant
to 28 U.S.C. § 1332. On January 16, 2014, Plaintiff filed the Motion to Remand seeking remand
to the Tulsa County District Court and claiming that the Defendants have not sufficiently
established that the amount in controversy exceeds $75,000 as required by 28 U.S.C. § 1332.1
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While arguing that Defendants have not sufficiently established the required amount in controversy for diversity
jurisdiction, Plaintiff does not state in its Motion to Remand that it is not seeking in excess of $75,000 from
Defendants.
The required jurisdictional amount in controversy may be established through allegations
contained in the complaint (including exhibits to the complaint), estimates of damages and other
relevant materials. See, e.g., McPhail v. Deere & Co., 529 F.3d 947 (10th Cir. 2008). Given the
sometimes sparse nature of evidence available at the time removal must be completed, the
jurisdictional amount in controversy need only be established by a “preponderance” of the
evidence. Id. at 955. Further, any uncertainty regarding the amount in controversy will only
justify a remand if it is “legally certain” that the amount in controversy is less than the
jurisdictional amount. Id. As stated by the Tenth Circuit Court of Appeals in McPhail:
[A] plaintiff cannot avoid removal merely by declining to allege the jurisdictional
amount. This would allow frustration of the purpose of diversity jurisdiction,
which is, after all, to protect the out-of-state defendant.
Id.
Plaintiff has asserted the following separate claims against the Defendants: 1) breach of
the Asset Purchase and Sale Agreement (the “Subject Agreement,” referenced as Exhibit “A” to
the Petition);2 2) interference with Plaintiff’s contractual relations; 3) defamation; and 4) assault.
For each claim, Plaintiff seeks an award “in excess of $10,000.” Plaintiff also seeks an award of
punitive damages.
With respect to Plaintiff’s claim for breach of the Subject Agreement, Plaintiff paid
Defendant Octavian Security Americas (“Octavian”) $160,000 (plus the assumption of
liabilities) pursuant to the terms of the Subject Agreement.
While the Plaintiff does not
specifically state in the Petition that it is seeking to recover the consideration Plaintiff paid to
Octavian under the Subject Agreement, it is evident that Plaintiff is likely seeking, at least, the
amount paid to Octavian given Plaintiff’s allegations in the Petition that the Defendants have
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While referenced in the Petition and incorporated in the Petition as Exhibit “A,” Plaintiff did not attach the Subject
Agreement to the Petition. The Subject Agreement, however, is attached as Exhibit “A” to Defendants’ Response
and Objection to Motion to Remand.
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frustrated the “main” purpose of the Subject Agreement and prevented them from realizing the
bargained for benefit of the Subject Agreement. The allegations in the Petition include the
following:
7.
One of the main purposes of the agreement was for
Plaintiff to be able to assume the obligations and liabilities
of Defendant in a way that made the transition as smooth as
possible and to minimize disruption to Plaintiff’s ongoing
business. Defendant violated the terms of the contract
which forbid Defendant from intentionally frustrating,
encumbering, modifying or causing the default of any of
the (i) assumed liabilities, (ii) customers or clients; (iii)
vendors, (iv) receivables or (v) other Octavian assets held
in Oklahoma (see attached Exhibit A, page 5).
8.
Since execution of the agreement on September 11, 2013,
Defendant has intentionally frustrated the operation of
Plaintiff’s business by contacting customers in Oklahoma
to express the sour grapes he feels over the transition of the
companies by making defamatory statements about
Plaintiff to Plaintiff’s customers.
9.
Defendant has refused to forward business e-mails to
Plaintiff pursuant to the agreement causing Plaintiff to not
be able to profit from business opportunities as
contemplated by the agreement (see attached Exhibit A,
page 3).
See Petition filed herein at ¶¶ 7-9 (emphasis added).
In addition, the Subject Agreement provides that the prevailing party in this action for
breach of the Subject Agreement can also recover attorneys’ fees.3 According to the affidavit of
Defendants’ counsel attached to the Defendants’ Response and Objection to Plaintiff’s Motion to
Remand, at least 210 attorney hours will be required to conduct the necessary discovery, research
and brief relevant issues, interview and prepare witnesses, prepare the pretrial conference order,
prepare instructions/findings of fact, present the evidence to the finder of fact and complete other
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The right to recover attorneys’ fees and the anticipated amount of attorneys’ fees to be incurred may be
considered as part of the amount in controversy. See, e.g., Woodmen of World Life Ins. Society v. Marganaro, 342
F.3d 1213, 1217-18 (10th Cir. 2003).
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necessary tasks at an hourly rate of $325. Thus, the evidence establishes that, at least, $68,250 in
attorneys’ fees could be incurred by Plaintiff (and the Defendants as well) in this action which
Plaintiff could recover from Defendants if it prevails. As a result, a preponderance of the
evidence establishes that Plaintiff’s claim for breach of the Subject Agreement, alone, involves
more than the jurisdictional amount of $75,000 when considering actual damages and the right to
recover attorneys’ fees.
With respect to Plaintiff’s claim for interference with contractual relations, Plaintiff
alleges that the Defendants have intentionally interfered with the contractual relations with the
customers acquired by Plaintiff and wholly “frustrated” Plaintiff’s efforts to profit from such
contractual relations, thereby preventing Plaintiff from profiting from such contractual relations.
The Subject Agreement expressly provides that the customer contracts acquired by Plaintiff had
a value of $148,100. Given Plaintiff’s allegations, it is evident that Plaintiff is likely seeking
damages of, at least, the value placed on these customer contracts (i.e., $148,100).
Finally, in addition to the damages which are the subject of Plaintiff’s claims for breach
of the Subject Agreement and interference with contractual relations discussed above, Plaintiff
also seeks actual damages in an amount “in excess of $10,000” for its defamation claim; actual
damages in an amount “in excess of $10,000” for its assault claim; and an unspecified amount of
punitive damages from the Defendants. In sum, the Court finds by a preponderance of the
evidence that the amount in controversy in this action exceeds $75,000 which satisfies 28 U.S.C.
§ 1332. Accordingly, jurisdiction is proper in this Court and the Motion to Remand is DENIED.
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