Opinion
CIVIL ACTION NO. 00-2014 SECTION "G"
September 18, 2000
MEMORANDUM AND ORDER
Background
In this class action originally filed in 40th JDC, St. John Parish, plaintiffs allege that while operating machinery in LaPlace, LA, defendant Gilbert Southern Corp. ruptured a natural gas pipeline, causing a natural gas leak. As a result of that leak, plaintiffs seek damages arising out of alleged physical symptoms; being prohibited from returning home; being forced to stay in their homes with all doors, windows, and air conditioners closed and off; the shut down of a major highway for several hours, and other inconvenience. Plaintiffs specifically pled in their state court petition that the amount in cotroversy as to each plaintiff is less than $75,000, and define the class as consisting 55 (5th Cir. 1993)
Defendant does not specifically claim bad faith on the part of plaintiff in alleging each plaintiff's claim will not exceed $75,000. Nevertheless, defendant makes two arguments in support of federal jurisdiction. First, defendant points to a Louisiana Supreme Court case, In re Gas Water Heater Products Liab., 711 So.2d 264 (La. 1998), for the principle that in class action suits, jurisdictional amount is determined by the total sum demanded by the plaintiffs on behalf of all class members. Second, defendant argues that the claims of the class representatives, once swelled by attorney fees, exceed $75,000, creating jurisdiction pursuant to In re Abbott Laboratories, 51 F.3d 524 (5th Cir. 1995)
In In re Gas Water Heater Products Liab., 711 So.2d 264 (La. 1998), the Louisiana Supreme Court addressed whether a multimillion dollar class action suit exceeded the jurisdictional limit for cases filed in the First Parish Court of Jefferson Parish (cases involving less than $10,000, exclusive of interest and costs). The plaintiffs argued that each of their claims should be considered separately for purposes of jurisdictional amount, and no class member sought in excess of the jurisdictional minimum. The Louisiana Supreme court, emphasizing that the Parish Court is one of limited jurisdiction created to deal with small, uncomplicated cases with relatively small damages, held that the "amount" demanded in a class action suit is measured by the total sum demanded by the plaintiffs on behalf of all class members. Id. at 266.
Federal courts are also courts of limited jurisdiction. This case involves federal court jurisdiction, and federal diversity jurisdiction is indisputedly a matter of federal law. The Louisiana Supreme Court's holding concerning the limited jurisdiction of Louisiana parish courts does not affect the federally-developed authority governing the limited jurisdiction of federal courts. The ruling is more than an interpretation of the Louisiana class action statute; it involves a state court jurisdictional issue.
In class actions, the compensatory claims of each plaintiff may not be aggregated in order to meet the requisite jurisdictional amount in controversy, Zahn v. International Paper Co., 414 U.S. 291, 94 S.Ct. 505, 38 L.Ed.2d 511 (1973), and any ambiguities or doubts are construed against removal. Butler v. Polk, 592 F.2d 1293 (5th Cir. 1979). The supplemental jurisdictional statute, 28 U.S.C. § 1367, has been held to have altered the Zahn rule under certain circumstances: if one class plaintiff's claim exceeds the jurisdictional amount, a federal court may exercise supplemental jurisdiction over the remaining plaintiffs. See In re Abbott Laboratories, 51 F.3d 524, 526 (5th Cir.), rehg denied en banc, 65 F.3d 22 (5th Cir. 1995). Defendant relies on In re Abbott Laboratories for the principle that attorneys fees and costs are attributable to the class representatives under La. Code Civ.P art. 595. Therefore, representatives' claims for attorneys fees that meet the jurisdictional amount satisfy the amount in controversy requirement, and the court may exercise supplemental jurisdiction over the remaining plaintiffs, regardless of the amount they seek in damages. Id. at 529. Defendant argues that here, once the representative plaintiffs' claims are swelled by attorney fees, the jurisdictional amount is satisfied.
La.C.C.P. art. 595 provides in pertinent part: "The court may allow the representative parties their reasonable expenses of litigation, including attorney's fees, when as a result of the class action a fund is made available, or a recovery or compromise is had which is beneficial to the class."
The Fifth Circuit said in In re Abbott Laboratories that attorneys' fees may properly be added to the amount of damages that the named plaintiff may recover to meet the required amount in controversy for federal jurisdiction. However, as I and other judges in this district have noted, Abbott involved not only La.C.C.P. art. 595, but also a claim pursuant to La.R.S. 51:137. And the Fifth Circuit considered La.R.S. 51:137 "key" in its decision to include attorneys' fees when determining the jurisdictional amount. This interpretation of Abbott means that the addition of attorneys' fees to the amount in controversy in a class action is not appropriate unless plaintiffs' claims are based on a specific statute — independent of La.C.C.P. art. 595 — that provides for recovery of attorneys' fees. Defendant's attempts to persuade me that this is not the proper interpretation of Abbott are unavailing.
La.Revised Statute 51:137 provides: "Any person who is injured in his business or property by any person by reason of any act or thing forbidden by this Part may sue in any court of competent jurisdiction and shall recover threefold damages sustained by him, cost of suit and a reasonable attorneys' fee." a successful plaintiff would recover "reasonable attorneys' fees" as part of his/her damages.
See Abbott, 51 F.3d at 526; see also Vaughn v. Mitsubishi Acceptance Corp. et al. 1999WL1277541 *2 (E.D.La. . 1999) (Sear, J.); Ace Pest control Co. v. K-Mart Corp., 979 F. Supp. 443, 444-45 (E.D.La. 1997) (Porteous, J.); accord Greer v. Mobil Oil Corp., 1997WL180477 *2 (E.D. 1997) (Clement, J.)
For these reasons, plaintiffs' motion to remand will be granted. Plaintiffs seek unspecified costs and attorney fees for having to file this motion to remand. The federal removal statute provides that an order remanding a case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of removal. See 28 U.S.C. § 1447 (C)
Because Louisiana district courts, including judges within this district, have reached contrary conclusions concerning the interpretation of In re Abbott Laboratories, I do not consider this a case in which an award of fees and costs is appropriate.
Accordingly,
IT IS ORDERED that plaintiff's motion to remand IS GRANTED, without any award for fees and costs to plaintiff in bringing the motion to remand.