United States District Court, E.D. Louisiana
B.E.T. CONSTRUCTION, INC.
CARBON SILICA PARTNERS, LP D/B/A DIAMOND FIBERGLASS
ORDER AND REASONS
ZAINEY UNITED STATES DISTRICT JUDGE
the Court is a Motion to Remand (Rec. Doc.
5) filed by Plaintiff B.E.T. Construction, Inc.
(“B.E.T.”). Defendant Carbon Silica Partners, LP
d/b/a Diamond Fiberglass (“Diamond”) opposes this
motion. (Rec. Doc. 6). The motion, set for submission on
November 29, 2017, is before the Court on the briefs without
oral argument. Having considered the motion and memoranda of
counsel, the record, and the applicable law, the Court finds
that the Plaintiff's motion should be
GRANTED for the reasons set forth below.
B.E.T. filed this motion to remand pursuant to 28 U.S.C.
§ 1447(c) on the basis that the amount in controversy is
less than the statutorily required $75, 000.00. B.E.T.
originally filed suit in the 17th Judicial District Court for
the Parish of Lafourche, Louisiana seeking declaratory
judgment against Defendant Diamond. The suit arose out of an
agreement between B.E.T. and Halliburton Entergy Services,
Inc. (“Halliburton”) to construct a facility for
Halliburton in Fourchon, Louisiana. (Rec. Doc. 5-1, p. 1).
Halliburton hired B.E.T. as construction manager with the
authority to purchase materials and hire subcontractors as
needed to complete the project. Id. Thereafter,
B.E.T. entered into an agreement with Diamond regarding the
purchase and installation of storage tanks for the
alleges that due to Diamond's defective design,
construction fabrication, and/or installation of the storage
tanks, the tanks improperly retained surface water on the
tank tops. Id. at p. 2. While Diamond ultimately
made the necessary repairs to the tanks, the repair
operations took place for approximately fifty-two days past
the date on which B.E.T. closed its contract with
Halliburton. Id. However, pursuant to B.E.T.'s
obligations to Halliburton, B.E.T. was required to maintain a
project manager on the site to oversee the completion of
Diamond's repairs and modifications to the defective
B.E.T. was forced to maintain personnel on site to oversee
Diamond's repair work, B.E.T. alleges to have incurred
approximately $33, 089.42 of extraordinary expenses for which
it could not invoice Halliburton. Id. After
completing the repair work, Diamond sent B.E.T. an invoice
for $161, 863.87, which B.E.T. alleges represented the
purported balance of the agreed upon price for the tanks.
However, in response to Diamond's invoice, B.E.T. faxed a
lien waiver for Diamond to sign prior to B.E.T. delivering
final payment. The lien waiver notes the withholding of $33,
089.42 in back charges for the additional expenses B.E.T.
incurred as a result of having to oversee Diamond's
repair work. According to B.E.T., Diamond refused to execute
the lien waiver necessary for B.E.T. to send the final
not refuting any particular facts provided by B.E.T., Diamond
presents additional facts in support of its position that the
statutorily required amount in controversy exceeds $75,
000.00. Diamond contends that due to B.E.T.'s unpaid
invoice and the outstanding interest on numerous other
untimely paid invoices, Diamond filed an arbitration demand
with the American Arbitration Association on August 17, 2017.
(Rec. Doc. 6-1, p. 1). Diamond argues that because B.E.T. has
failed to make any payments to Diamond, the total amount in
controversy is $161, 863.67. Id. at p. 2. Diamond
additionally contends that B.E.T. paid at least nine prior
invoices late, which resulted in the accrual of $58, 236.71
in interest spanning from February of 2015 to January of
2016. Id. Therefore, Diamond alleges that the total
amount B.E.T. owes as of August 17, 2017-the date Diamond
filed an arbitration demand-is $228, 247.02, excluding the
interest that accrued on the unpaid invoice at issue in this
current matter. Id. Further, Diamond argues that the
actual total owed by B.E.T. to Diamond as of the filing of
Diamond's Opposition to B.E.T.'s Motion to Remand is
$273, 022.09, which includes the interest accruing on the
unpaid invoice. Id.
September 28, 2017, Diamond removed the action from
Louisiana's 17th Judicial District Court for the Parish
of Lafourche to this Court pursuant to 28 U.S.C. §
1332-diversity jurisdiction. (Rec. Doc. 1). In its Notice of
Removal, Diamond asserts that “[B.E.T.] has admitted in
its Petition for Declaratory Judgment, that the unpaid
balance of the contract is $161, 863.95, which exceeds the
sum of $75, 000.00, exclusive of interest and costs.”
(Rec. Doc. 1, p. 2, ¶ 4). In its Motion to Remand,
B.E.T. asserts that the only actual amount in controversy is
$33, 089.42, which warrants remand to state court as that
amount does not satisfy complete diversity requirements.
well established that the party invoking the jurisdiction of
a federal court has the burden of proving that the exercise
of such jurisdiction is proper. Stafford v. Mobil Oil
Corp., 945 F.2d 803, 804 (5th Cir. 1991) (quoting
Getty Oil Corp. v. Ins. Co. of N. Am., 841 F.2d
1254, 1259 (5th Cir. 1988)). Any doubt regarding whether
removal jurisdiction is proper should be resolved against
federal jurisdiction and in favor of remand. Acuna v.
Brown & Root, Inc., 200 F.3d 335, 339 (5th Cir. 2000)
(citing Willy v. Coastal Corp., 855 F.2d 1160, 1164
(5th Cir. 1988)).
Law and Analysis
dispute between the parties centers on the amount in
controversy. Federal district courts have original
jurisdiction over civil actions where the amount in
controversy exceeds $75, 000.00 exclusive of interests and
costs and there is diversity between all of the parties. 28
U.S.C. § 1332; Taylor v. Murphy, No. 00-1655,
2000 WL 1023421 (E.D. La. July 24, 2000).
to B.E.T., there is no controversy between the parties as to
the fact that B.E.T. owes Diamond $128, 774.45. (Rec. Doc.
5-1. P. 3). This amount represents the balance of the agreed
upon price of the tanks ($161, 863.87) minus the back charges
for extraordinary expenses incurred by B.E.T. ($33, 089.42).
Therefore, B.E.T. contends that the only actual controversy