United States District Court, W.D. Louisiana, Lafayette Division
REPORT AND RECOMMENDATION
PATRICK J. HANNA, UNITED STATES MAGISTRATE JUDGE
the Court is the Motion to Remand and for Attorney Fees filed
on behalf of Plaintiff, Zip, LLC. (Rec. Doc. 6). Defendant,
Zachry Exploration, LLC, opposed the Motion (Rec. Doc. 8).
The Motion was referred to the undersigned magistrate judge
for review, report, and recommendation in accordance with the
provisions of 28 U.S.C. §636 and the standing orders of
this Court. Considering the evidence, the law, and the
arguments of the parties, and for the reasons fully explained
below, the Court recommends that Zip's Motion be DENIED.
sued Zachry Exploration in state court for alleged damages
sustained to its rice crop, crawfish crop, and land arising
out of an oil, gas, and mineral lease in which Zachry
Exploration, the lessee, agreed to be responsible for damages
caused by its operations. (Rec. Doc. 1-2, at 3, ¶2-3).
On December 5, 2018, Zip sent a demand letter to Zachry
Exploration for $73, 000 in damages, itemized among rice,
crawfish, and land expenses. (Rec. Doc. 1-2, at 17). In its
suit, Zip seeks reimbursement for all costs and expenses,
including reasonable attorney fees for enforcing the
provisions of the lease. (Rec. Doc. 1-2, at 4, ¶6). Zip
did not allege whether the amount of recovery sought exceeded
Exploration removed the case under §1332, alleging that
Zip is a limited liability company whose two members are
domiciled in Louisiana, and that Zachry Exploration is a
citizen of Delaware and Texas. (Rec. Doc. 1, ¶5 and 6).
Zachry Exploration's removal was further based upon
Zip's demand for $73, 000 plus reasonable attorneys'
fees. (Rec. Doc. 1, at ¶8). Zip filed the instant Motion
to Remand, arguing that Zachry Exploration's reliance
upon Zip's demand letter for $73, 000 plus reasonable
attorneys' fees is insufficient to establish federal
jurisdiction. (Rec. Doc. 6-3). Zachry opposed. (Rec. Doc. 8).
federal district courts have original jurisdiction over cases
involving a federal question, pursuant to 28 U.S.C.
§1331, and those in which the parties are diverse in
citizenship and the amount in controversy exceeds $75, 000,
pursuant to 28 U.S.C. §1332. Courts may also exercise,
or decline to exercise, supplemental jurisdiction over
certain cases. 28 U.S.C. §1367; Preston v. Tenet
Healthsystem Mem'l Med. Ctr., Inc., 485 F.3d 804,
810 (5th Cir. 2007). 28 U.S.C. §1441 and §1446
provide the procedural mechanism by which a party may remove
a matter from state court to a federal district court.
upon the filing of a motion to remand, the removing party
bears the burden to prove that federal jurisdiction exists.
De Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th
Cir. 1995). Thus, Defendants, as the party seeking to invoke
federal diversity jurisdiction under §1332, bear the
burden of establishing both that the parties are diverse and
that the amount in controversy exceeds $75, 000. Garcia
v. Koch Oil Co. of Texas Inc., 351 F.3d 636, 638 (5th
does not challenge diversity, but instead argues that Zachry
Exploration has not met its burden to show that the amount in
controversy exceeds $75, 000. Thus, the Court must determine
whether Zachry Exploration has met its burden of proof to
show by a preponderance of the evidence that the amount in
controversy exceeds $75, 000.
We ordinarily consult the state court petition to determine
the amount in controversy. St. Paul Reinsurance Co., Ltd.
v. Greenberg, 134 F.3d 1250, 1253 (5th Cir.1998).
However, Louisiana prohibits plaintiffs from petitioning for
a specific monetary amount. See La.Code Civ. P. art.
893(A)(1). Therefore, where, as here, the petition does not
include a specific monetary demand, Prudential must establish
by a preponderance of the evidence that the amount in
controversy exceeds $75, 000. See De Aguilar, 47
F.3d at 1412 (5th Cir.1995). This requirement is met if (1)
it is apparent from the face of the petition that the claims
are likely to exceed $75, 000, or, alternatively, (2) the
defendant sets forth “summary judgment type
evidence” of facts in controversy that support a
finding of the requisite amount.
Manguno v. Prudential Prop. & Cas. Ins. Co., 276
F.3d 720, 723 (5th Cir. 2002).
a defendant is able to show that the amount in controversy
exceeds the jurisdictional amount, removal is proper,
provided plaintiff has not shown that it is legally certain
that his recovery will not exceed the amount stated in the
state complaint.” De Aguilar v. Boeing Co., 47
F.3d at 1412. The plaintiff may establish that his claims
will not exceed the jurisdictional threshold to a legal
certainty “by identifying a statute, or by filing a
binding stipulation, that so limits her recovery.”
Manguno, 276 F.3d at 724. However, “if it is
facially apparent from the petition that the amount in
controversy exceeds $75, 000 at the time of removal,
post-removal affidavits, stipulations, and amendments
reducing the amount do not deprive the district court of
jurisdiction.” Gebbia v. Wal-Mart Stores,
Inc., 233 F.3d 880, 883 (5th Cir. 2000). “[A]
defendant's notice of removal need include only a
plausible allegation that the amount in controversy exceeds
the jurisdictional threshold. Evidence establishing the
amount is required by § 1446(c)(2)(B) only when the
plaintiff contests, or the court questions, the
defendant's allegation.” Dart Cherokee Basin
Operating Co., LLC v. Owens, 574 U.S. 81, 135 S.Ct. 547,
removal was based upon Zip's demand for $73, 000 and
Zip's prayer for relief “for all damages, attorney
fees, and all costs of these proceedings.” (Rec. Doc.
1-2, at 4). Zachry argues that the amount of Zip's
attorneys' fees could exceed $2, 000. “When a
contract or statute contains a provision for the potential
award of fees, such fees may be included in the amount in
controversy.” House v. AGCOCorp.,
No. CIV.A. 05-1676, 2005 WL 3440834, at *2 (W.D. La. Dec. 14,
2005), citing Grant v. Chevron Phillips Chemical
Co.,309 F.3d 864, 874 (5th ...