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J H Enterprises v. Howard Johnson Intern., Inc.

United States District Court, W.D. Arkansas. Fort Smith Division
Sep 22, 2004
359 F. Supp. 2d 811 (W.D. Ark. 2004)

Opinion

No. CV-04-2174.

September 22, 2004.

Jerry L. Canfield, Attorneys for Plaintiff or Petitioner.

Roger D. Rowe, Grant E. Fortson, Attorneys for Defendant or Respondent.


ORDER


Currently before the Court is Plaintiff's Motion to Remand. (Doc. 7.) In its complaint, Plaintiff alleged damages of less than $75,000. (Doc. 1, Ex. A.) Defendant subsequently removed the case on July 22, 2004 pursuant to 28 U.S.C. § 1441. (Doc. 1.) For the reasons that follow, Plaintiff's motion is DENIED.

A defendant may remove a case to federal court under 28 U.S.C. § 1441 if the court originally had jurisdiction pursuant to 28 U.S.C. § 1332. See 14 C. Wright, A. Miller E. Cooper, Federal Practice and Procedure, § 3752 (2d ed. 1985). Section 1332 requires diversity of citizenship and an amount in controversy exceeding $75,000 exclusive of interest and costs. See 28 U.S.C. § 1332 (2004). Plaintiff contends removal was improper because the amount in controversy does not exceed $75,000. (Doc. 7.)

In the License Agreement attached to the Complaint, the parties acknowledged that in the event Plaintiff's facility were open less than twenty-four months at the time of breach, liquidated damages would be calculated by utilizing a set formula. (Doc. 1, Ex. A, License Agrmnt. ¶ 12.1.) This amount would be in addition to Plaintiff's request for attorney's fees as also provided for in the License Agreement. (Doc. 1, Ex. A, License Agrmnt. ¶ 17.4.) Such fees are capable of inclusion in the amount in controversy for the sake of determining federal diversity jurisdiction. See Springstead v. Crawfordsville State Bank, 231 U.S. 541 (1913); see also Perma Glass Corp. v. Sasak Corp., 718 F.Supp. 742 (E.D. Mo. 1989).

An attorney's fee in addition to the liquidated damages sought by Plaintiff would amount to more than $75,000, and Plaintiff's motion to remand to state court is therefore DENIED.

In addition, the Defendant has filed a Motion for Summary Judgment, and Plaintiffs are requested to file any response by October 6, 2004.

IT IS SO ORDERED.


Summaries of

J H Enterprises v. Howard Johnson Intern., Inc.

United States District Court, W.D. Arkansas. Fort Smith Division
Sep 22, 2004
359 F. Supp. 2d 811 (W.D. Ark. 2004)
Case details for

J H Enterprises v. Howard Johnson Intern., Inc.

Case Details

Full title:J H ENTERPRISES PLAINTIFFS v. HOWARD JOHNSON INTERNATIONAL, INC. DEFENDANTS

Court:United States District Court, W.D. Arkansas. Fort Smith Division

Date published: Sep 22, 2004

Citations

359 F. Supp. 2d 811 (W.D. Ark. 2004)