Opinion
CIVIL ACTION NO: 06-8279, SECTION: "K" (3).
January 29, 2007
ORDER
Before the Court is Plaintiff's Motion to Remand (Rec. Doc. No. 6), wherein Plaintiff contends that the amount in controversy requirement is not met for the purposes of exercising subject matter jurisdiction under 28 U.S.C. § 1332 (diversity). The Court has previously addressed the amount in controversy requirement in the context of a motion to remand in Rush v. American Security Ins. Co., No. 06-5345 (E.D. La. removed Aug. 28, 2006). In Rush, the Court held that if it is not facially apparent from the state court pleading that the amount in controversy exceeds $75,000, then the defendant must show by a preponderance of evidence that such is the case. Id., at p. 6. If Defendant meets this burden, Plaintiff must show to a legal certainty that the claim does not exceed $75,000. Id.
Here, it is apparent from the face of the petition that the amount in controversy exceeds $75,000, as Plaintiff alleges that "Hurricane Katrina damaged petitioner's residence as the entire structure, shed, and patio covering were severely damaged by rain and hurricane force winds." See Notice of Removal, Petition, at ¶ 4. Moreover, Plaintiff seeks fees and penalties under Louisiana law for the arbitrary and capricious denial of insurance proceeds. Id., at ¶ 15 17. Despite averring that the claim does not exceed $50,000, the allegations of severe damage to the residence coupled with an assertion for attorney's fees and penalties is more likely than not going to exceed $75,000. Plaintiff has not shown to a legal certainty that the claim does not exceed $75,000; therefore, following the standards set forth in Rush, the Court finds that removal was proper and jurisdiction does exist under 28 U.S.C. § 1332. Accordingly,
IT IS ORDERED that Plaintiff's Motion to Remand (Rec. Doc. No. 6) is DENIED.