United States District Court, W.D. Louisiana, Monroe Division
L. HAYES, MAG. JUDGE
A. DOUGHTY, UNITED STATES DISTRICT JUDGE
before the Court is Plaintiff SDS Petroleum Consultants,
LLC's (“SDS”) Motion for Default Judgment
[Doc. No. 8]. Defendant Matthew Givens (“Givens”)
filed a Response [Doc. No. 10]. For the following reasons,
this proceeding is DISMISSED WITHOUT PREJUDICE for lack of
subject matter jurisdiction, and the Motion for Default
Judgment [Doc. No. 8] is DENIED AS MOOT.
FACTS AND PROCEDURAL HISTORY
25, 2019, SDS, a Texas limited liability company, filed its
Complaint against Givens, a domiciliary of Richland Parish,
Louisiana. SDS alleges that, beginning in April 2018, Givens
performed work for SDS as an independent contractor; that SDS
paid Givens in full for all work performed by him; that on
May 22, 2019, while attempting to make payment to one of its
contract vendors other than Givens, SDS mistakenly and
inadvertently made a direct deposit in the amount of $23,
475.00 into the bank account of Givens; and that Givens has
refused to return the payment [Doc. No. 1, p. 2].
contends that this inadvertent direct deposit constitutes
payment of a thing not owed under LA. CIVIL CODE art. 2300,
and, that Givens is legally bound to return the payment to
SDS in accordance with LA. CIVIL CODE art. 2299
[Id., p. 3].
asserts that, despite all attempts to amicably resolve this
matter, Givens has refused to return the payment and that
Givens was in bad faith in receiving payment of a thing not
owed and in his continued refusal to refund payment
[Id., p. 4]. SDS further asserts that Givens'
bad faith and failure to return payment amounts to a
deceptive and “unfair” act in commerce as defined
under LA. REV. STAT. 15:1401, et seq., commonly
referred to as the Louisiana Unfair Trade Practices Act (the
“LUTPA”). SDS seeks all applicable damages, as
well as attorney's fees prescribed by the LUTPA.
filed its Summons and Original Complaint in this matter on
July 25, 2019, alleging diversity jurisdiction [Doc. No. 1].
On July 30, 2019, SDS served upon Givens, via domiciliary
service upon his spouse, the Summons and Original Complaint
at his home address in Rayville, Louisiana. The deadline for
Givens to file responsive pleadings to the Original Complaint
was August 20, 2019. Notice of Entry of Default was given on
August 23, 2019 [Doc. No. 7]. The pending Motion for Default
Judgment was filed on September 9, 2019 [Doc. No. 8].
September 19, 2019, Givens filed a response in which he
indicates that he thought the unexpected $23, 475 direct
deposit into his account was a “blessing, ” but
that he would be happy to repay the money if some sort of
payment arrangement or plan can be resolved [Doc. No. 10].
examining the record, the Court became concerned that the
amount-in-controversy requirement may not have been met. The
diversity statute - 28 U.S.C. § 1332 - is satisfied upon
a showing of (1) diversity of citizenship between the
parties; and (2) an amount in controversy in excess of $75,
000, exclusive of interest and costs. Because the
amount-in-controversy requirement is jurisdictional, the
Court must sua sponte raise the issue if there is
any doubt concerning subject-matter jurisdiction.
Marathon Oil Co. v. Ruhrgas, 145 F.3d 211');">145 F.3d 211, 217 (5th
Cir. 1998). Additionally, before granting a motion for
default judgment, this Court “has the duty to assure
that it has the power to enter a valid judgment, ” and
must “look into its jurisdiction both over the subject
matter and the parties.” Sys. Pipe & Supply,
Inc. v. MN Viktor Kurnatovskiy, 242 F.3d 322, 324
(5th Cir. 2001).
on September 24, 2019, the Court, by minute entry, required
the parties to file a jurisdictional memorandum no later than
September 30, 2019, showing why this case does or does not
meet the jurisdictional threshold amount of over $75, 000.
The parties were further requested to explain how the LUTPA
applies in this factual situation.
September 27, 2019, SDS filed its Jurisdictional Memorandum
[Doc. No. 12], in which it argues that subject matter
jurisdiction is proper in this Court, as a good faith claim
for $23, 475 under the LUTPA was pleaded and a reasonable
attorneys' fees award of greater than $51, 525 was
anticipated through trial on the merits at the time suit was
filed, thereby exceeding the “amount in
controversy” threshold of $75, 000.
Court is not convinced that the LUTPA, and, therefore, its
attorneys' fees provision, apply in this factual
situation. The LUTPA prohibits “[u]nfair methods of
competition and unfair or deceptive acts or practices in the
conduct of any trade or commerce . . .”. La. R.S.
§ 51:1405(A). “Louisiana has left the
determination of what is an ‘unfair trade practice'
largely to the courts to decide on a case-by-case
basis.” Turner v. Purina Mills, Inc., 989 F.2d
1419, 1422 (5th Cir. 1993); see also Cheramie
Services, Inc. v. Shell Deepwater Production, Inc., 35
So.3d 1053, 1059 (La. 2010) (“It has been left to the
courts to decide, on a case-by-case basis, what conduct falls
within the statute's prohibition.”) (citing
Dufau v. Creole Engineering, Inc., 465 So.2d 752,
758 (La.App. 5 Cir. 1985) (In order to recover under LUTPA a
plaintiff must prove “some element of fraud,
misrepresentation, deception, or other unethical
conduct” on the part of the defendant.)). “The
courts have repeatedly held that, under this statute, the
plaintiff must show the alleged conduct ‘offends
established public policy and . . . is immoral, unethical,
oppressive, unscrupulous, or substantially injurious.'
” Cheramie, 35 So.3d at 1059 (citations
egregious actions involving elements of fraud,
misrepresentation, deception, or other unethical conduct will
be sanctioned based on LUTPA.” Volentine v. Raeford
Farms of Louisiana, LLC, 50-698 (La.App. 2 Cir.
8/15/16), 1 So.3d 325');">201 So.3d 325, 353, writ denied, 2016-1924 (La.
12/16/16), 12 So.3d 1171') ...