United States District Court, M.D. Louisiana
WILDER-DOOMES UNITED STATES MAGISTRATE JUDGE.
take notice that the attached Magistrate Judge's Report
has been filed with the Clerk of the U.S. District Court.
accordance with 28 U.S.C. Â§636(b)(1), you have 14 days after
being served with the attached report to file written
objections to the proposed findings of fact, conclusions of
law, and recommendations set forth 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 accepted by the District Court.
NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN
OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.
the court is: (1) a Consent Motion to Remand (the
“Consent Motion to Remand”)filed by
defendant, Red Frog Events, LLC (“Red Frog”), and
plaintiff, Sydney Ducharme (“Plaintiff”); and (2)
a Motion to Remand previously filed by Plaintiff
(“Plaintiff's Motion to Remand”). Both
Motions were referred to the undersigned for a
recommendation. For the reasons set forth herein, the
undersigned recommends that the Consent Motion to
Remand be GRANTED and this matter be REMANDED to
the 20th Judicial District Court, Parish of West
Feliciana, State of Louisiana. The undersigned further
recommends that Plaintiff's Motion to
Remand be DENIED AS MOOT.
Frog removed this suit on November 9, 2017 based on diversity
jurisdiction under 28 U.S.C. § 1332. On February 2,
2018, Plaintiff filed a Motion to Remand based on a
Stipulationexecuted by her counsel. On February 8,
2018, Red Frog filed a Notice whereby it indicated that it
intended to oppose Plaintiff's Motion to
Remand. On February 20, 2018, however, Red Frog
filed the Consent Motion to Remand based on an Affidavit and
Irrevocable and Binding Stipulation executed by Plaintiff that
same date. Per the Consent Motion to Remand, Red Frog avers
that it moves to remand this matter to state court
“with the consent of Plaintiff…and all other
named and served defendants….”
Law and Analysis
defendant may remove “any civil action brought in a
State court of which the district courts of the United States
have original jurisdiction.” 28 U.S.C. § 1441(a).
When original jurisdiction is based on diversity of
citizenship, the cause of action must be between
“citizens of different States” and the amount in
controversy must exceed the “sum or value of $75, 000,
exclusive of interest and costs.” 28 U.S.C. §
1332(a)-(a)(1). Subject matter jurisdiction must exist at the
time of removal to federal court, based on the facts and
allegations contained in the complaint. St. Paul
Reinsurance Co., Ltd. v. Greenberg, 134 F.3d 1250, 1253
(5th Cir. 1998) (“jurisdictional facts must be judged
as of the time the complaint is filed”). In removed
actions, diversity of citizenship must exist both at the time
of filing in state court and at the time of removal to
federal court. Coury v. Prot, 85 F.3d 244, 248-289
(5th Cir. 1996) (citation omitted). The removal statute, 28
U.S.C. § 1441, is strictly construed and any doubt as to
the propriety of removal should be resolved in favor of
remand. Gasch v. Hartford Acc. & Indem. Co., 491
F.3d 278, 281-82 (5th Cir. 2007). The removing party has the
burden of proving federal diversity jurisdiction. Garcia
v. Koch Oil Co. of Tex. Inc., 351 F.3d 636, 638 (5th
Cir. 2003). Remand is proper if at any time the court lacks
subject matter jurisdiction. See, 28 U.S.C. §
removal is sought on the basis of diversity jurisdiction,
then “the sum demanded in good faith in the initial
pleading shall be deemed to be the amount in
controversy.” 28 U.S.C. § 1446(c)(2). If, however,
the “State practice ... does not permit demand for a
specific sum ... [removal] is proper if the district court
finds, by the preponderance of the evidence, that the amount
in controversy exceeds [$75, 000].” 28 U.S.C. §
1446(c)(2)(A)(ii)-(B). “In order to remain in federal
court, the removing parties must prove by a preponderance of
the evidence that the jurisdictional minimum exists.”
Morton v. State Farm Ins. Co., Civil Action No.
08-208, 250 F.R.D. 273, 274 (E.D. La. 2008) (citing
Luckett v. Delta Airlines, Inc., 171 F.3d 295 (5th
Cir. 1999)). The removing party may make this showing by
either: “(1) by demonstrating that it is
‘facially apparent' that the claims are likely
above $75, 000, or (2) ‘by setting forth the facts in
controversy-preferably in the removal petition, but sometimes
by affidavit-that support a finding of the requisite
amount.'” Luckett, 171 F.3d at 298
(quoting Allen v. R&H Oil & Gas Co., 73 F.3d
1326, 1335 (5th Cir. 1995)).
Red Frog has not met its “burden to show that the
jurisdictional amount is facially apparent for present
purposes, nor…made a showing sufficiently
particularized to meet [their] burden.” Becnel v.
State Farm Fire & Cas. Co., Civil Action No.
07-6742, 2007 WL 4570821, at *1 (E.D. La. Dec. 26,
2007). Instead, Red Frog has filed a Consent
Motion to Remand based on an Affidavit and Irrevocable and
Binding Stipulation indicating that the jurisdictional amount
is not in controversy.
court routinely remands cases to state court where the
parties file a joint or uncontested motion to remand based on
a stipulation that the amount in controversy does not exceed
the jurisdictional amount.” Jackson v. Perez,
Civil Action No. 13-504, 2013 WL 5741757, at * 2 (M.D. La.
Oct. 22, 2013) (citing, inter alia, Eakels v.
Allstate Ins. Co., Civil Action 10-657, 2011 WL 289824
(M.D. La. Jan. 3, 2011) (recommending remand of case where
neither the petition nor the notice of removal established
the amount in controversy and the plaintiff stipulated that
her damages were less than $75, 000.00), report and
recommendation adopted, 2011 WL 289669 (M.D. La. Jan. 25,
2011)); Bennet v. State Farm Fire & Cas. Co.,
Civil Action No. 10-636, 2011 WL 2932512 (M.D. La. June 3,
2011) (in spite of defendant's opposition, recommending
remand of case where neither the petition nor the notice of
removal established the amount in controversy and the
plaintiffs submitted a binding stipulation providing that the
amount in controversy was less than $75, 000.00 and
renouncing their rights to enforce a judgment exceeding that
amount), report and recommendation adopted, 2011 WL 2843051
(M.D. La. July 18, 2011). See also, Morton v.
State Farm Ins. Co., Civil Action No. 08-208, 250 F.R.D.
273, 275 (E.D. La. 2008) (“The Court has consistently
recognized that even if a stipulation may not be
‘binding' for purposes of La. Code Civ. P. art.
862…it is, nonetheless, strong evidence of the
Frog has not established this court's subject matter
jurisdiction and has essentially acknowledged such in ...