# Pharmacy Express LLC v. Ohio Security Insurance Company

> District Court, E.D. Louisiana · September 30, 2022

URL: https://www.frixlaw.com/law-library/cases/10188430

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** September 30, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10188430

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

PHARMACY EXPRESS LLC CIVIL ACTION

VERSUS NO. 22-1979

OHIO SECURITY INSURANCE CO. SECTION: “G”(5)

ORDER AND REASONS
Before the Court is Plaintiff Pharmacy Express, LLC’s (“Plaintiff”) “Motion to Remand.”1
Plaintiff argues that the case should be remanded because Defendant Ohio Security Insurance
Company (“Defendant”) has not shown by a preponderance of the evidence that the amount in
controversy exceeds $75,000.2 Defendant opposes the motion and argues that it has shown by a
preponderance of the evidence that the amount in controversy exceeds $75,000.3 Considering the
motion, the memoranda in support and in opposition, the record, and the applicable law, the Court
grants the Motion to Remand.
I. Background
This litigation arises out of alleged damage to Plaintiff’s property during Hurricane Ida.4
Plaintiff filed a petition for declaratory judgment against Defendant (the “Petition”) in the Thirty-
Second Judicial District Court for the Parish of Terrebonne on May 13, 2022.5 According to the

1 Rec. Doc. 7.
2 Id. at 1.
3 Rec. Doc. 9 at 1.
4 See Rec. Doc. 1 at 1.
5 Id.
Petition, Plaintiff purchased an insurance policy (the “Policy”) from Defendant insuring the
property located at 1963 Prospect Blvd., Houma, Louisiana 70363 (the “Property”), which Plaintiff
used to operate a pharmacy, against property damage and business income losses from November
1, 2020, to November 1, 2021.6 In the Petition, Plaintiff avers that, on August 29, 2021, the

Property suffered “massive property damage” as a result of Hurricane Ida, which shut down the
pharmacy.7
The Petition states that Plaintiff “faithfully paid” its premiums under the Policy and
notified Defendant of its losses due to Hurricane Ida but, “on October 1, 2021, [Defendant] sent
[Plaintiff] a denial letter, flat-out denying the claim.”8 The Petition also alleges that Defendant
denied the claim based on a “Windstorm or Hail Exclusion in the policy.”9 Plaintiff argues that a
hurricane is not a windstorm and so Plaintiff is entitled to a declaratory judgment that the
Windstorm or Hail Exclusion in the Policy does not apply to hurricanes.10 The Petition specifically
states that Plaintiff “does not seek any determination of the amount of damages owed at this time
or any other remedy besides declaratory relief.”11

On June 28, 2022, Defendant removed the action to this Court, asserting subject matter
jurisdiction under 28 U.S.C. § 1332.12 In the Notice of Removal, Defendant avers that the parties
are completely diverse because Plaintiff is a Louisiana limited liability company whose only

6 Id. at 3–4.
7 Id. at 4.
8 Id. at 5.
9 Id. at 6.
10 Id. at 7, 9.
11 Id. at 9.
12 Rec. Doc. 1.
member is a citizen of Louisiana and Defendant is a corporation organized under the laws of New
Hampshire with its principal place of business in Massachusetts.13 Furthermore, the Notice of
Removal states that the amount in controversy exceeds $75,000 because: (1) the Policy has limits
of $113,538 for damage to structure, $255,000 for damage to business personal property, and
$50,000 (after a $1,000 deductible) for business income and extra expenses;14 (2) “Plaintiff

submitted several invoices to [Defendant] for some of the alleged hurricane damage . . . total[ing]
$46,252.60 and cover[ing] only a small portion of the alleged hurricane damage to the building
without consideration of Plaintiff’s Business Income claim;”15 (3) Plaintiff claims loss of business
income in shutting down the pharmacy and extensive physical damage to the Property and
Defendant has not made any payments to Plaintiff for its claims;16 (4) if successful, Plaintiff is
entitled to recover fifty percent statutory damages equal to $23,378.90;17 and (5) Plaintiff seeks
attorney’s fees.18 On July 22, 2022, Plaintiff filed the instant motion to remand.19 On August 2,
2022, Defendant opposed the motion.20

13 Id. at 3–4. “Accordingly, [Defendant] is a citizen of New Hampshire and Massachusetts for purposes of
diversity jurisdiction.” Id. at 4.
14 Id. at 4.
15 Id. at 5. Plaintiff submitted invoices to Defendant for “removal of cabinets, shelving, and ceiling ($4,800);
pharmacy equipment ($6,962.72); server replacement ($2,800); countertop and shelving installation ($31,689.88).”
Id.
16 Id. at 6.
17 Id. at 7. In the Notice of Removal, Defendant argues that, only considering the invoices submitted plus any
bad faith penalties applied to those invoices under La. Rev. Stats. 22:1892 and 22:1973, Defendant establishes an
amount in controversy of $46,252.60 plus $23,126.30 equal to $69,398.90. Id. Therefore, Defendant argues that,
because “Plaintiff also can recover attorneys’ fees on [that amount] . . . the submitted invoices alone indicate that the
amount in controversy exceeds $75,000.” Id.
18 Id.
19 Rec. Doc. 7.
20 Rec. Doc. 9.
II. Parties’ Arguments
A. Plaintiff’s Arguments in Support of Remand
Plaintiff argues that removal was improper because Defendant has not shown by a
preponderance of the evidence that the amount in controversy exceeds $75,000.21 Plaintiff makes
four arguments in support of the Motion to Remand. First, Plaintiff analogizes this matter to
Mitchell v. Amica Mut. Ins. Co.,22 arguing that, like in that case, the Petition requests declaratory

relief establishing the Property’s coverage under the Policy for hurricane damage, does not allege
an amount in controversy, and “makes no reference of policy limits.”23 Plaintiff avers that, like
this Court held in Mitchell, “these circumstances do not equate to a facial demonstration of the
amount in controversy exceeding the jurisdictional amount.”24 Plaintiff asserts that, like the
petition in Mitchell, which alleged that the property at issue was uninhabitable and needed
extensive repairs, here the Petition alleges that Hurricane Ida “resulted in massive property damage
and shut the Pharmacy down.”25 Therefore, Plaintiff concludes that, as in Mitchell, the amount in
controversy is not facially apparent and so “removal is only proper . . . if the removing defendant
can show satisfaction of the jurisdictional amount through the Notice of Removal or summary
[]judgment type evidence.”26

21 Rec. Doc. 7-1 at 1.
22 No. 14-2766, 2015 WL 1608670 (E.D. La. Apr. 10, 2015) (Brown J.).
23 Rec. Doc. 7-1 at 9.
24 Id.
25 Id. at 10.
26 Id.
Second, Plaintiff argues that, as in Lottinger v. State Farm Fire and Casualty Co.,27
Defendant fails to show through the Notice of Removal or summary judgment type evidence that
the $75,000 amount in controversy requirement is satisfied.28 Plaintiff asserts that, as in Lottinger,
where the defendant provided an adjuster estimate of $45,748.55 in damages, Defendant provides
“underlying proof of loss documents (invoices) totaling $46,252.60.”29 Furthermore, Plaintiff

avers that, as in Lottinger, where “removing defendant tried to bootstrap additional damages by
adding the fifty percent statutory penalty to this proof loss amount” to take the total amount in
controversy to $68,622.55, Defendant adds the fifty percent statutory penalty such that the total
amount in controversy is $69,378.90.30 Finally, Plaintiff asserts that, as in Lottinger, where the
possibility of attorney’s fees was mentioned to close the gap to the $75,000 requirement without
quantifying such fees, Defendant “has referenced the possibility of an attorney fee award with no
price tag attached.”31 Therefore, Plaintiff concludes that, as in Lottinger, where this Court found
that the defendant failed to satisfy its burden of establishing that the amount in controversy
exceeded $75,000, Defendant has not met its burden in this matter.32 Furthermore, Plaintiff notes

that, unlike in Lottinger, where the petition was for damages and plaintiff explicitly sought bad
faith penalties, the Petition is for declaratory judgment and does not explicitly seek bad faith
penalties.33

27 No. 13-6193, 2014 WL 4403440 (E.D. La. Sept. 5, 2014) (Brown, J.).
28 See Rec. Doc. 7-1 at 10.
29 Id. at 11.
30 Id.
31 Id.
32 Id. at 12.
33 Id. at 10–11.
Third, Plaintiff argues that Defendant cannot close the gap to the jurisdictional requirement
by providing photographs of the damage, but “has to attach a dollar figure to the amount of the
special damages.”34 Plaintiff asserts that Defendant “has not done this.”35
Fourth, Plaintiff contends that Defendant cannot argue that the amount in controversy

requirement is satisfied because Plaintiff would be entitled to double damages sustained under
Louisiana Revised Statute § 22:1973.36 Plaintiff avers that this Court rejected using the underlying
damage amount as the amount of damages sustained under § 22:1973 in Lottinger, and Defendant
“does not offer any evidence in the record that would support a showing of actual damages.”37 For
these reasons, Plaintiff concludes that “this Court should remand this case to state court for further
proceedings.”38
B. Defendant’s Arguments in Opposition
Defendant makes three arguments in opposition to the Motion to Remand. First, Defendant
argues that it is facially apparent that the amount controversy exceeds $75,000.39 Defendant avers
that Plaintiff is incorrect to argue that Defendant has failed to establish the amount in controversy

requirement in providing “a calculation of damages totaling ‘only’ $69,378.90” because Defendant
is only required to show by a preponderance of the evidence that the amount in controversy exceeds
$75,000, and does not need to calculate damages “with mathematical precision.”40 Defendant cites

34 Id. at 11.
35 Id.
36 Id. at 12.
37 Id. at 12–13.
38 Id. at 13.
39 Rec. Doc. 9 at 4.
40 Id. at 5.
Luckett v. Delta Airlines, Inc.,41 and Gebbia v. Wal-Mart Stores, Inc.,42 where the Fifth Circuit
held that the plaintiffs’ claims of significant bodily injuries without disclosing specific amounts of
damages were sufficient to satisfy the amount in controversy requirement.43 Defendant asserts that,
likewise, Plaintiff’s allegations in the Petition that Hurricane Ida caused “massive property

damage” and shut down a commercial business like a pharmacy make it facially apparent that the
amount in controversy exceeds $75,000.44
Second, Defendant argues that, even if it is not facially apparent from the Petition,
summary judgment type evidence shows “that it is more likely than not that the amount in
controversy exceeds $75,000.”45 Defendant points to six pieces of evidence to support this
argument: (1) the Policy limits of $113,538 for damage to structure, $255,000 for damage to
business personal property, and $50,000 (after a $1,000 deductible) for business income and extra
expenses;46 (2) photographs of the Property showing “extensive roof damage, collapsed ceilings
covering personal property, mold growth on interior walls, interior water damage, etc;”47 (3) the
“estimates from Plaintiff for a portion of the repairs totaling $46,252.60;”48 (4) Plaintiff’s seeking

41 171 F.3d 295, 298 (5th Cir. 1999)
42 233 F.3d 880, 883 (5th Cir. 2000).
43 Rec. Doc. 9 at 4–5.
44 Id. at 6.
45 Id.
46 Id. Defendant argues that “the entire limits are potentially recoverable by Plaintiff” because Defendant has
paid Plaintiff nothing thus far. Id.
47 Id. at 7 (citing Rec. Doc 1-4; Rec. Doc. 1-1).
48 Id. (citing Rec. Doc. 1-5). Defendant notes that the estimates do not include replacement of the ceiling
tiles, sheetrock, and insulation, or the repair/replacement of the damaged roof that allowed for the water intrusion. Id.
Defendant argues that, when considering these additional damages, “it is more likely than not that the damages exceed
$75,000.” Id.
“coverage for business interruption because the hurricane damage forced Plaintiff’s pharmacy to
close;”49 (5) Plaintiff’s entitlement to bad faith penalties of fifty percent;50 and (6) Plaintiff’s
entitlement to attorney’s fees of up to twenty percent of the total claim.51 Defendant notes that,
even without most of this evidence, Defendant meets the jurisdictional requirement based “solely

on the $46,252.60 in partial repair estimates, a 50 percent penalty, and a 10 percent attorney’s fee
award.”52
Third, Defendant argues that Lottinger is distinguishable from the instant case.53 Defendant
asserts that, in Lottinger, “[f]atal to the removal was this Court’s finding that ‘State Farm does not
provide a basis upon which the Court can close the gap [between $68,622.75 and $75,000].’ Here
[Defendant] has provided multiple bases with which to close the gap between $69,378.90 and
$75,000.”54 Defendant avers that, furthermore, unlike in Lottinger, where “the insurer had already
made payments to the insured” and the amount in controversy was based “on a public adjuster
estimate for all of the remaining repairs to the plaintiff’s property,”55 Plaintiff’s damages are not
capped such that the gap could only be bridged with attorney’s fees.56 Thus, Defendant concludes

that Lottinger is distinguishable because, in this case, Defendant estimates only a portion of the

49 Id.
50 Id. at 8–9.
51 Id. at 9 (citing Eaux Holdings LLC v. Scottsdale Ins. Co., No. 20-01582, 2022 WL 2393605 (W.D. La. July
1, 2022).
52 Id. at 9–10 (emphasis omitted).
53 See id. at 10.
54 Id. (quoting Lottinger, 2014 WL 4403440, at *10).
55 Id. (quoting Lottinger, 2014 WL 4403440, at *1).
56 Id. at 11.
repairs, provides photographs establishing the extent of the damage, and is potentially liable for
the cost of a commercial business shutting down.57 For these reasons, Defendant concludes that
the Motion to Remand should be denied because Defendant “has submitted summary judgment
evidence that the amount in controversy exceeds $75,000 by a preponderance of the evidence.”58

III. Legal Standard

A defendant may remove a state civil court action to federal court if the federal court has
original jurisdiction over the action.59 A federal court has subject matter jurisdiction over an action
“where the matter in controversy exceeds the sum or value of $75,000” and the action “is between
citizens of different states.”60 The removing party bears the burden of demonstrating that federal
jurisdiction exists.61
In assessing whether removal was appropriate, the Court is guided by the principle,
grounded in notions of comity and the recognition that federal courts are courts of limited
jurisdiction, that “removal statute[s] should be strictly construed in favor of remand.”62 Remand
is appropriate if the Court lacks subject matter jurisdiction, and “doubts regarding whether removal
jurisdiction is proper should be resolved against federal jurisdiction.”63
Pursuant to Fifth Circuit precedent, a removing defendant’s burden of showing that the

57 See id. at 10–11.
58 Id. at 12.
59 28 U.S.C. § 1441(a); Syngenta Crop Prot., Inc. v. Henson, 537 U.S. 28, 34 (2002).
60 28 U.S.C. § 1332(a)(1).
61 See Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995).
62 Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002).
63 Acuna v. Brown & Root Inc., 200 F.3d 335, 339 (5th Cir. 2000) (citing Willy v. Coastal Corp., 855 F.2d
1160, 1164 (5th Cir. 1988)).
amount in controversy is sufficient to support federal jurisdiction differs depending on whether
the plaintiff's complaint alleges a specific amount of monetary damages.64 When the plaintiff
alleges a damage figure in excess of the required amount in controversy, “that amount controls if
made in good faith.”65 If the plaintiff pleads damages less than the jurisdictional amount, this figure
will also generally control, barring removal.66 “Thus, in the typical diversity case, the plaintiff

remains the master of his complaint.”67
Louisiana law ordinarily does not allow a plaintiff to plead a specific amount of damages.68
A plaintiff is, however, permitted to make “a general allegation that the claim exceeds or is less
than” a particular amount if making such an allegation is necessary to establish the lack of
jurisdiction of federal courts due to insufficiency of damages.69 When, as here, the plaintiff has
alleged an indeterminate amount of damages, the Fifth Circuit requires the removing defendant to
prove by a preponderance of the evidence that the amount in controversy exceeds $75,000.70 A
defendant satisfies this burden either “(1) by demonstrating that it is facially apparent that the
claims are likely above $75,000, or (2) by setting forth facts in controversy—preferably in the
removal petition, but sometimes by affidavit—that support a finding of the requisite amount.”71

64 See Allen, 63 F.3d at 1335.
65 Id. (citing St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289 (1938)).
66 Id.
67 Id.
68 See La. Code Civ. P. art. 893.
69 Id.
70 Gebbia v. Wal-Mart Stores, Inc., 233 F.3d 880, 882 (5th Cir. 2000); see also Simon v. Wal-Mart Stores,
Inc., 193 F.3d 848, 850 (5th Cir. 1999); Allen, 63 F.3d at 1335.
71 Simon, 193 F.3d at 850 (quoting Luckett v. Delta Airlines, Inc., 171 F.3d 295 (5th Cir. 1999)); see also
Allen, 63 F.3d at 1335.
The defendant must do more than point to a state law that might allow the plaintiff to recover more
than the jurisdictional minimum; the defendant must submit evidence that establishes that the
actual amount in controversy exceeds $75,000.72 Finally, the jurisdictional facts that support
removal “must be judged at the time of the removal, and any post-petition affidavits are allowable
only if relevant to that period of time.”73

IV. Analysis
Plaintiff moves the Court to remand this case, arguing that Defendant has not shown by a
preponderance of the evidence that the amount in controversy exceeds $75,000.74 Defendant
opposes the motion and argues that it has shown by a preponderance of the evidence that the
amount in controversy of this declaratory judgment action exceeds $75,000, and so this Court has
diversity jurisdiction over the matter.75 The parties do not contest that they are completely
diverse.76 Therefore, at issue here is whether the amount in controversy condition is met to confer
subject matter jurisdiction pursuant to 28 U.S.C. § 1332.
As a threshold matter, the Fifth Circuit has held that the amount in controversy in a

declaratory judgment action that involves “the applicability of an insurance policy to a particular
occurrence” is the value of the underlying claim.77 Therefore, Defendant must prove by a
preponderance of the evidence that the value of the underlying claim is likely above $75,000 by

72 See De Aguilar v. Boeing Co., 47 F.3d 1404, 1412 (5th Cir. 1995).
73 Allen, F.3d at 1335.
74 Rec. Doc. 7 at 1.
75 Rec. Doc. 9 at 1.
76 The parties are completely diverse because Plaintiff is a Louisiana limited liability company whose only
member is a citizen of Louisiana and Defendant is a corporation organized under the laws of New Hampshire with its
principal place of business in Massachusetts. Rec. Doc. 1 at 3–4.
77 Hartford Ins. Grp. v. Lou-Con Inc., 293 F.3d 908, 911 (5th Cir. 2002) (internal citation omitted).
showing either: (1) it is apparent from the face of the petition or (2) the facts set forth in the notice
of removal support such a finding.78
A. It is Not Apparent from the Face of the Petition that the Amount in Controversy
Requirement is Satisfied

Defendant first argues that it is apparent from the face of the Petition that the value of the
underlying claim exceeds $75,000.79 Although Defendant need not calculate the precise value of
the claim,80 it is not apparent from the face of the Petition that the value of the underlying claim
exceeds $75,000. The Petition states that “Hurricane Ida swept through Houma, Louisiana, causing
extensive flooding.”81 The Petition also states that “Hurricane Ida resulted in massive damage to
the [Property] and in the Pharmacy shutting down in the immediate aftermath of the hurricane.”82
Finally, the Petition states that “[t]he Policy covers property damage as well as business income
losses” and Defendant “has not paid anything” on Plaintiff’s claim.83
Defendant argues that these allegations are “no different for the purpose of establishing
that the $75,000 amount in controversy requirement is satisfied than the allegations of significant
bodily injuries in Gebbia and Luckett.”84 Defendant’s reliance on Gebbia and Luckett is misplaced.
In Gebbia, the plaintiff alleged severe bodily injuries to her wrist, knee, patella, and back, leading

78 Simon, 193 F.3d at 850 (quoting Luckett, 171 F.3d 295); see also Allen, 63 F.3d at 1335.
79 See Rec. Doc. 9 at 4.
80 See, e.g., Luckett, 171 F.3d at 298; Gebbia, 233 F.3d at 883.
81 Rec. Doc. 1-1 at 4.
82 Id.
83 Id. at 4–5.
84 Rec. Doc. 9 at 6.
to “permanent disability and disfigurement.”85 In Luckett, the plaintiff alleged heart failure leaving
her periodically unconscious over five days.86 Allegations of specific bodily injuries cannot be
compared to a general allegation of “massive property damage,” without any indication of the
damage that occurred or for how long the business was shut down.87 Without more specific

information, the Court cannot say that Defendant has met its burden of showing that it is more
likely than not that the amount in controversy requirement is satisfied based only on the face of
the Petition.
B. Defendant Has Not Established by a Preponderance of the Evidence that the Amount in
Controversy is Above $75,000

Since Defendant cannot rely on the face of the Petition to establish that the amount in
controversy requirement is satisfied, Defendant must produce additional facts to support that the
value of the underlying claim exceeded $75,000 at the time of removal.88 Here, the parties do not
dispute that the value of the underlying claim includes $46,252.60 in damages documented prior
to removal.89 Defendant also argues that the value of the underlying claim includes Plaintiff’s
potential entitlement to bad faith penalties equal to fifty percent on the amount owed to Plaintiff

85 Gebbia, 233 F.3d at 883.
86 Luckett, 171 F.3d at 297.
87 See Simon, 193 F.3d at 851–52 (holding that it was not apparent from the face of the petition that plaintiff’s
damages exceeded the jurisdictional requirement where damages were alleged “with substantially less specificity than
the description of damages in the complaint in Luckett); see also Mitchell v. Amica Mut. Ins. Co. , 2015 WL 1608670,
at *4 (E.D. La. Apr. 10, 2015) (Brown J.) (holding that it was not facially apparent from a petition stating that a
property was “uninhabitable and necessitating extensive repairs” that the amount in controversy requirement was
satisfied).
88 The Fifth Circuit has instructed that “[i]n situations where the facially apparent test is not met, the district
court can then require parties to submit summary-judgment-type evidence, relevant to the amount in controversy at
the time of removal.” See Allen, 63 F.3d at 1336.
89 These damages consist of the invoices Plaintiff submitted to Defendant for “removal of cabinets, shelving,
and ceiling ($4,800); pharmacy equipment ($6,962.72); server replacement ($2,800); countertop and shelving
installation ($31,689.88).” Rec. Doc. 1 at 5; see also Rec. Doc. 1-5.
and attorney’s fees under Louisiana Revised Statute § 22:1892.90 Plaintiff argues that the Petition
did not explicitly seek bad faith penalties or attorney’s fees.91 Even assuming bad faith penalties
or attorney’s fees should be included in the amount in controversy calculation, despite Plaintiff not
explicitly seeking either, Defendant still has not establish that the amount in controversy exceeds

$75,000. Assuming that Plaintiff is entitled to bad faith penalties, Defendant has only shown an
amount in controversy of $69,378.90 equal to $46,252.60 (the specific damages documented by
invoice prior to removal) plus a penalty of fifty percent of the documented damages.92 Defendant
would still be $5,621.10 short of meeting the $75,000 requirement. Thus, Plaintiff correctly argues
that, as in Lottinger v. State Farm Fire and Casualty Co.,93 Defendant has failed to meet its burden
of showing that the amount in controversy requirement is satisfied by a preponderance of the
evidence.94
In Lottinger, this Court granted the plaintiff’s motion to remand. There, the plaintiff
claimed $68,622 in bad faith penalties and property damage due to Hurricane Isaac, and the
defendant argued that the plaintiff’s other claims and request for attorney’s fees established that

90 Rec. Doc. 9 at 9. La. Rev. Stat. § 22:1892(B)(1)(a) states that if an insurer fails to make payment to the
insured within thirty days of receiving satisfactory proof of loss, and this failure is made in bad faith the insurer must
pay:
a penalty, in addition to the amount of the loss, of fifty percent damages on the amount found
to be due from the insurer to the insured, or one thousand dollars, whichever is greater, payable to
the insured, or in the event a partial payment or tender has been made, fifty percent of the difference
between the amount paid or tendered and the amount found to be due as well as reasonable
attorney fees and costs or two thousand five hundred dollars, whichever is greater.
91 Rec. Doc. 7-1 at 11–12.
92 The Court calculates the total as follows: $46,252.60 + .50($46,252.60) = $69,378.90
93 No. 13-6193, 2014 WL 4403440 (E.D. La. Sept. 5, 2014).
94 Rec. Doc. 7-1 at 10.
the amount in controversy exceeded $75,000.95 In remanding the case, the Court explained that
the defendant in Lottinger “provide[d] no basis upon which to estimate the monetary value of these
claims, and cite[d] no authority to instruct the Court on how to do so.”96 Thus, “the Court [relied]
solely on Lottinger’s state court petition to determine the monetary value of his non-contractual
claims. ”97

As in Lottinger, where the defendant was unable to close a gap of $6,377 to meet the
jurisdictional requirement because it did not instruct the Court on the value of plaintiff’s additional
claims, here Defendant provides no basis for determining the value of the additional damages to
the Property. Also, unlike in Lottinger where plaintiff specifically sought attorney’s fees, Plaintiff
does not seek attorney’s fees in the Petition.98 Regardless, Defendant’s reliance on a single case
decided by another district court to argue that, with attorney’s fees, the amount in controversy
exceeds $75,000, is insufficient to sustain its burden to show that removal is proper.99 Thus, like
this Court found in Lottinger, “the fact that these claims might establish that [Plaintiff’s] claims
meet the jurisdictional minimum is not enough to support a finding that these claims do establish,
by a preponderance of the evidence, that the jurisdictional threshold has been crossed.”100 As the

Fifth Circuit has recognized, such “doubts regarding whether removal jurisdiction is proper should

95 Lottinger, 2014 WL 4403440, at *9–10. Defendant had relied on Plaintiff’s adjuster’s estimate that
Plaintiff’s total contractual claims equaled $45,748.55. Id. at *4.
96 Id. at *9.
97 Id.
98 See Rec. Doc. 1-1.
99 See Rec. Doc. 9 at 9.
100 Lottinger, 2014 WL 4403440, at *9.
be resolved against federal jurisdiction.” !”! Therefore, Defendant has failed to meet its burden of
establishing that this Court has diversity jurisdiction pursuant to 28 U.S.C. § 1332. Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s “Motion to Remand”! is GRANTED.
IT IS FURTHER ORDERED that the case is hereby remanded to the Thirty-Second
Judicial District Court for the Parish of Terrebonne, State of Louisiana for further proceedings.
NEW ORLEANS, LOUISIANA, this 30th day of September, 2022.

NANNETTE JOLIVETTE BROWN
CHIEF JUDGE
UNITED STATES DISTRICT COURT

101 Acuna v. Brown & Root Inc., 200 F.3d 335, 339 (Sth Cir. 2000) (citing Willy v. Coastal Corp., 855 F.2d
1160, 1164 (Sth Cir. 1988)).
102 Rec. Doc. 7.

16

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10188430. Public record. Not legal advice.