United States District Court, M.D. Louisiana
RICHARD L. BOURGEOIS, JR. UNITED STATES MAGISTRATE JUDGE
take notice that the attached Magistrate Judge's Report
has been filed with the Clerk of the United States District
accordance with 28 U.S.C. § 636(b)(1), you have fourteen
(14) days after being served with the attached Report to file
written objections to the proposed findings of fact,
conclusions of law and recommendations therein. Failure to
file written objections to the proposed findings,
conclusions, and recommendations within 14 days after being
served will bar you, except upon grounds of plain error, from
attacking on appeal the unobjected-to proposed factual
findings and legal conclusions of the Magistrate Judge which
have been accepted by the District Court.
NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN
OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.
JUDGE'S REPORT AND RECOMMENDATION
the Court is Plaintiff's Motion to Remand. (R. Doc. 6).
The motion is opposed. (R. Doc. 8).
12, 2017, Sullivan Robinson (“Plaintiff”)
initiated this action against his former employer BASF
Corporation (“BASF” or “Defendant”)
in the 23rd Judicial District Court, Ascension Parish,
Louisiana. (R. Doc. 1-1, “Petition”). Plaintiff
alleges that he was employed by “BASF as a MRO
warehouse technician in the maintenance department at the
BASF facility in Zachary, Louisiana.” (Petition, ¶
3). Plaintiff further alleges that he “was notified of
a buy out by BASF to employees in the maintenance department
equal to two (2) weeks for every year of service with BASF
and its predecessors in interest, ” which Plaintiff
calculates to be “approximately seventy (70) weeks of
pay” in his case. (Petition, ¶ 5). Plaintiff
further alleges that he was informed by a human resources
representative of BASF that he was not eligible for the buy
out, and ultimately terminated from employment on May 30,
2014 without a buy out. (Petition, ¶¶ 6-7).
Plaintiff, who contends that he was in fact a member of the
BASF maintenance department, seeks recovery of a lump sum
payment of 70 weeks of pay, as well as penalties and attorney
fees pursuant to La. R.S. 23:631 and La. R.S. 23:632.
(Petition, ¶¶ 5, 13-14).
23, 2017, BASF removed the action, asserting that the Court
has diversity jurisdiction pursuant to 28 U.S.C. §
1332(a). (R. Doc. 1). BASF asserts that there is complete
diversity of citizenship because Plaintiff is a citizen of
Louisiana and BASF is a citizen of Delaware and New Jersey.
(R. Doc. 1 at 4). BASF further asserts that the amount in
controversy requirement is satisfied because a calculation of
the wages and penalties sought by Plaintiff total $85, 289.60
without consideration of recoverable attorney's fees. (R.
Doc. 1 at 6). BASF submitted a declaration from its human
resources representative indicating that on December 18,
2012, BASF assigned Plaintiff an hourly wage of $24.23. (R.
Doc. 1-2 at 1). Based on this hourly wage, BASF calculates
the amount of back pay sought by Plaintiff to be $67, 844.00
($24.23 x 40 hours x 70 weeks), and the amount of penalties
sought by Plaintiff to be $17, 445.60 ($24.23 x 8 hours x 90
days). (R. Doc. 1 at 5-6).
24, 2017, Plaintiff filed the instant Motion to Remand,
asserting that the amount in controversy requirement is not
satisfied. (R. Doc. 6). Plaintiff submits an
“Irrevocable Stipulation of Damages” dated July
24, 2017 providing that he stipulates that he will not accept
a judgment, and renounces his right to enforce a judgment, in
excess of $75, 000. (R. Doc. 6-2).
Arguments of the Parties
support of remand, Plaintiff asserts that the submission of
his post-removal stipulation both clarifies that the amount
in controversy requirement is not satisfied and establishes
“with legal certainty” that the amount in
controversy is not satisfied. (R. Doc. 6-1 at 3-4).
opposition, BASF argues that it has met its burden of
establishing that the amount in controversy requirement is
satisfied based on its calculations and supporting
declaration submitted with the Notice of Removal. (R. Doc. 8
at 4). BASF further argues that Plaintiff cannot establish
that he is legally certain to recover less than $75, 000
because the stipulation was submitted post-removal and the