Summary
describing the split of opinion among Louisiana federal judges
Summary of this case from Harris v. Schering-Plough Corp.Opinion
CIVIL ACTION NO. 00-2617 SECTION "N".
October 20, 2000.
ORDER AND REASONS
Before the Court is Plaintiff Gloria Braxton's Motion to Remand. For the following reasons, the Motion is GRANTED.
A. BACKGROUND
On July 31, 2000, an explosion occurred at Defendant IMC Phosphates MP, Inc.'s ("IMC") Faustina facility. On August 4, 2000 Plaintiff Gloria Braxton filed a "Class Action Petition" against IMC in the 23rd Judicial District Court for the Parish of St. James, State of Louisiana. On September 1, IMC removed the action to this Court on the grounds of diversity jurisdiction. Expressly relying on In re Abbott Laboratories, 51 F.3d 524 (5th Cir. 1995), IMC alleges that the amount in controversy exceeds $75,000 when attorney's fees are calculated into Ms. Braxton's potential award.
Ms. Braxton challenges this allegation. In her Motion to Remand, Ms. Braxton points out that this Court has consistently held that Abbott does not require the addition of attorney's fees to the amount in controversy in a class action brought pursuant to Louisiana Code of Civil Procedure art. 595 unless another statute mandates the award of attorney's fees. Because there is no "other statute" in this case and because she alleges that her compensable damages will not equal or exceed $75,000, Ms. Braxton argues that the amount in controversy requirement has not been met and her case must be remanded to state court.
IMC acknowledges that "[t]he only issue before the court is whether attorneys' fees, which are awarded solely to the named class representative(s)[,] should be used in determining the amount in controversy for purposes of diversity jurisdiction."IMC's Opp'n Mem. p. 1. IMC points out that various district courts have interpreted the Abbott decision differently and requests that this Court either reconsider its position or deny the Motion to Remand and certify an immediate interlocutory appeal to the Fifth Circuit pursuant to 28 U.S.C. § 1292 (b) to resolve the split of authority.
B. LAW AND ANALYSIS
The legal standards for removal and remand are generally well-settled. A defendant may remove a civil action brought in state court to a federal district court that would have had jurisdiction had the plaintiff opted to bring the action there. See 28 U.S.C. § 1441. Where, as here, jurisdiction is premised on diversity of citizenship, the parties must be diverse and the amount in controversy must exceed $75,000. See 28 U.S.C. § 1332 (a). The removing defendant must prove by a preponderance of the evidence that the jurisdictional amount is satisfied either (1) by demonstrating that it is apparent from the face of the Petition that the claims are likely to exceed $75,000 or (2) by setting forth facts in controversy that support a finding of the requisite amount. See Simon v. Wal-Mart Stores, Inc., 193 F.3d 848, 850 (5th Cir. 1999); Luckett v. Delta Airlines. Inc., 171 F.3d 295, 298 (5th Cir. 1999).
In In re Abbott Laboratories, 51 F.3d 524 (5th Cir. 1995), the Fifth Circuit considered the role of class action attorney's fees in determining the amount in controversy. The plaintiffs inAbbott filed a class action lawsuit in Louisiana state court, alleging price-fixing in violation of Louisiana antitrust laws. Although each plaintiff claimed damages less than the jurisdictional amount, the district court found that Louisiana law attributed all of a class's attorney's fees to the named plaintiff. Adding together the compensable damages and attorney's fees, the district court found that the claim of the named plaintiffs satisfied the amount in controversy requirement. The Fifth Circuit agreed. The court noted that the distribution of attorney's fees in the case before it centered on two Louisiana statutes, Article 595 of the Louisiana Code of Civil Procedure, which provides that attorney's fees may be awarded to the named class representative, and Section 51:137 of the Louisiana Revised Statutes, which mandates a separate award of attorney's fees for antitrust violations.
In the wake of Abbott, a split among district courts has arisen as to when a court should consider attorney's fees in determining the amount in controversy. Noting that the Abbott court described the presence of La. R.S. 51:137 as "key" to its decision, see 51 F.3d at 526, this and other courts in this district have interpreted Abbott as requiring the existence of a separate attorney's fees statute in addition to Article 595 before attorney's fees can be considered. See, e.g., Ace Pest Control Co. v. K-Mart Corp., 979 F. Supp. 443 (E.D.La. 1997) (Porteous, J.); Ryder v. Gilbert S. Corp., 2000 WL 1499274 (E.D.La. Sept. 21, 2000) (Sear, J.); Johnson v. Cytec Indus., Inc., 1999 WL 212753 (E.D.La. Apr. 13, 1999) (Vance, J.); Greer v. Mobil Oil Corp., 1997 WL 180477 (E.D.La. Apr. 14, 1997) (Clement, J.);Cooper v. Koch Pipeline, 1995 WL 931091 (E.D.La. Dec. 11, 1995) (Fallon, J.). Other federal district courts in Louisiana, however, have concluded that the potential award of attorney's fees under Article 595 alone is sufficient. See, e.g., McKnight v. Illinois Cent. R.R., 967 F. Supp. 182 (E.D.La. 1997) (Duval, J.); Kimball v. Modern Woodmen of Am., 939 F. Supp. 479 (M.D. La. 1996) (Parker, J.); Brooks v. Georgia Gulf Corp., 924 F. Supp. 739 (M.D.La. 1996) (Polozola, J.). As a result of this split of authority, IMC asserts that "whether a diversity action in Louisiana can be successfully filed in or removed to federal court depends on the `luck of the draw.'" IMC's Opp'n Mem. p. 5. IMC suggests that, even if this Court is unwilling to reconsider its prior rulings, Ms. Braxton's motion should be denied and the order certified for immediate interlocutory appeal pursuant to 28 U.S.C. § 1292 (b) for the Fifth Circuit to resolve the split among the district courts.
While the Court appreciates IMC's candor, it believes that it reached the correct result in Greer. Because the jurisdictional amount has not been satisfied, the Court lacks subject matter jurisdiction over the instant action and must remand it to state court. See 28 U.S.C. § 1447 (c).
C. CONCLUSION
For the reasons set forth above,
IT IS ORDERED that Plaintiff Gloria Braxton's Motion to Remand is GRANTED, and the case is hereby REMANDED to the 23rd Judicial District Court for the Parish of St. James, State of Louisiana, for further proceedings, each party to bear its own costs.
New Orleans, Louisiana, this 20th day of October, 2000.