IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 01-31350
_____________________
ELAINE F. GRANT; ALFRED GRANT; JACQUELINE
LEARY,
Plaintiffs-Appellants,
v.
CHEVRON PHILLIPS CHEMICAL CO. L.P., as
Successor in Interest to CHEVRON CHEMICAL
COMPANY,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Eastern District of Louisiana
____________________
October 11, 2002
BEFORE WIENER, EMILIO M. GARZA, and PARKER, CIRCUIT JUDGES.
WIENER, Circuit Judge:
The captioned case is before us by virtue of the district
court’s highly principled certification for immediate interlocutory
appeal pursuant to 28 U.S.C. § 1292(b). We are called on to answer
an important removal and remand question which (1) arises in the
context of diversity jurisdiction under 28 U.S.C. § 1332, (2) is
unique to Louisiana class actions because of the state’s statutory
scheme, and (3) has polarized the judges of the Eastern District of
Louisiana. This question implicates the jurisdictional-amount
prong of the test for diversity jurisdiction, and asks:
When considering the class plaintiffs’ motion
to remand, can attorney’s fees that the court
may allow to class representatives pursuant to
Paragraph A. of art. 595 [“art. 595(A)”] of
the Louisiana Code of Civil Procedure [“LCCP”]
be included in calculating the requisite
amount in controversy, absent some other
provision of Louisiana law that specifically
authorizes the award of attorney’s fees?
To get this divisive question before us under § 1292(b), the
district judge denied the motion of the Plaintiffs-Appellants
(“class representatives”) to remand the case to the state court in
which they filed it as a putative class action against the
Defendant-Appellee (“Chevron”), and from which Chevron removed it
to the district court. The parties agree, and the facts confirm,
that complete diversity exists between the class representatives
and Chevron,1 leaving the amount in controversy as the sole
contested issue on appeal.
For the reasons explained below, we answer “yes” to today’s
question. And, as none contest that the amount here in controversy
crosses § 1332’s threshold of $75,000 when all allowable attorney’s
fees are attributed exclusively to the class representatives, we
affirm the refusal to remand this case to the state court of
1
Chevron is a Delaware partnership with its principal place
of business in Texas, and the class representatives are residents
and citizens of Louisiana. As only the named class representatives
in a class action are required to be diverse from the defendants,
see Snyder v. Harris, 394 U.S. 332, 340 (1969); Aetna Cas. & Surety
Co. v. Iso-Tex, Inc., 75 F.3d 216, 218 (5th Cir. 1996), diversity
is indeed complete in this case.
2
origin, and return it to the district court for further
proceedings.
I. Facts and Proceedings
Just after noon on the day following an industrial accident at
Chevron’s chemical plant in St. James Parish, Louisiana, counsel
for the class representatives filed the instant tort action in the
state district court for that parish. The petition identifies
Chevron as the defendant, the suit as a class action, and the
members of the putative class as all persons or entities located
within five miles of the plant who may have suffered damages as a
result of the incident. The class representatives’ petition
asserts Louisiana causes of action in negligence and strict
liability, and alleges that “[t]he claims of the plaintiffs herein
for compensatory damages are all each [sic] individually less than
$74,999.00.” In addition to seeking certification of the class,
determination of Chevron’s liability to the class for compensatory
damages, and recognition of the right of each individual class
member to bring a separate action to establish the quantum of his
damages, the petition asks the state court to allow the class
representatives to “recover their costs for the prosecution of this
class action.”
Chevron removed the case to the Eastern District of Louisiana,
asserting that (1) diversity is complete and (2) the amount in
controversy is sufficient to support diversity jurisdiction when
attorney’s fees allowable under art. 595(A) are attributed to the
3
class representatives pursuant to In re: Abbott Laboratories
(“Abbott”).2 Art. 595(A) defines the representative parties’
“reasonable expenses of litigation” as “including attorney’s
fees.”3
The class representatives timely filed a motion to remand,
insisting that Abbott interpreted art. 595(A) as attributing
attorney’s fees to the class representatives only when a separate
Louisiana statute (Louisiana Revised Statute § 51:137 in Abbott)
authorizes assessing “a reasonable attorney’s fee” to the
defendant, over and above compensatory and any other damages. They
rely on the facts that (1) no one of them (or any other class
member, for that matter) is claiming a quantum of damages in this
tort suit that could exceed § 1332’s $75,000 jurisdictional amount
threshold for diversity jurisdiction, without including interest
and costs such as attorney’s fees, and (2) not only are they not
seeking attorney’s fees under any specific Louisiana statute that
expressly provides for such recovery,4 they are not entitled to
recover attorney’s fees from the defendant, Chevron, in this
2
51 F.3d 524 (5th Cir. 1995).
3
LA. CODE CIV. PROC. ANN. art. 595(A) (West 1999).
4
Although various Louisiana statutes provide for the award of
attorney’s fees under specific causes of action (in Abbott the
cause of action was price fixing for which attorney’s fees are
recoverable under LA. REV. STAT. ANN. § 51:137 (West 1987)
(“§ 51:137”)), none authorizes the courts to award attorney’s fees
in garden-variety, individual tort suits of this nature.
4
ordinary Louisiana tort suit, grounded as it is in negligence and
strict liability.5
The district judge noted and described in detail the division
among those judges of his court (including himself) who had
considered whether alone, i.e., in the absence of a separate
attorney’s fees statute, the attorney’s fees allowable to class
representatives under art. 595(A) are includable in calculating the
amount in controversy for purposes of diversity jurisdiction,6
noting which judges had answered “yea” and which “nay.” Rather
than perpetuate this intra-district split of authority by ruling
5
See Nassif v. Sunrise Homes, Inc., 98-3193, 2 (La. 6/29/99),
739 So. 2d 183, 185; General Motors Acceptance Corp. v. Meyers, 385
So. 2d 245, 247 (La. 1980).
6
Cases from the Eastern District of Louisiana that have
answered this question in the negative include Braxton v. IMC
Phosphates MP, Inc., 2000 WL 1576827, at *1–2 (E.D. La. 2000);
Vaughn v. Mitsubishi Acceptance Corp., 1999 WL 1277541, at *1–2
(E.D. La. 1999); Johnson v. Cytec Industries, Inc., 1999 WL 212753,
at *1–2 (E.D. La. 1999); Dixon v. Ford Motor Credit Co., 1998 WL
914260, *3–4 (E.D. La. 1998); Ace Pest Control Co. v. KMart Corp.,
979 F. Supp. 443, 446 (E.D. La. 1997); Greer v. Mobil Oil Corp.,
1997 WL 180477, at *1–2 (E.D. La. 1997); and Cooper v. Koch
Pipeline, Inc., 1995 WL 931091, at *1–2 (E.D. La. 1995). Those
that have answered in the affirmative include McKnight v. Illinois
Central R.R., 967 F. Supp. 182, 184–85 (E.D. La. 1997), In re Gas
Water Heater Products Liability Litigation, 1996 WL 732525, at *5–6
(E.D. La. 1996); Duncan v. Equitable Life Assurance Society, 1996
WL 736988, at *6–8 (E.D. La. 1996), Millet v. Marathon Oil Co.
(“Millet II”), 1995 WL 495901, at *1 (E.D. La. 1995), Francis v.
Lomas Mortgage USA, Inc., 1995 WL 468172, at *2–3 (E.D. La. 1995);
and Millet v. Marathon Oil Co. (“Millet I”), 1995 WL 396313, at
*1–2 (E.D. La. 1995). Cases from the Middle District of Louisiana
that have also answered the question in the affirmative include
Hornsby v. AlliedSignal, Inc., 961 F. Supp. 923, 931 (M.D. La.
1997); Kimball v. Modern Woodmen of America, 939 F. Supp. 479, 483
(M.D. La. 1996); and Brooks v. Georgia Gulf Corp., 924 F. Supp.
739, 740–42 (M.D. La. 1996).
5
one way or the other on the issue, the court denied the class
representatives’ motion to remand and granted Chevron’s motion to
certify the question for interlocutory appeal pursuant to
§ 1292(b).
II. Analysis
A. Standard of Review
When there is complete diversity between all plaintiffs and
all defendants, we review de novo an order denying remand to state
court on the ground that the amount in controversy exceeds the
minimum jurisdictional requirement.7
B. Background: Removal from State Courts of Louisiana
Subject to specific exceptions not here relevant, Louisiana
prohibits a plaintiff from alleging or demanding a specific dollar
amount of damages, limiting the prayer for relief to “such damages
as are reasonable in the premises.”8 To accommodate the situation
when the removal sought is from a Louisiana court and subject
matter jurisdiction is grounded in diversity of citizenship, we
have modified the usual rule for determining whether the amount in
controversy is present. In such Louisiana situations, we permit
the party seeking to maintain federal jurisdiction to establish by
a preponderance of the evidence that the amount in controversy
7
Manguno v. Prudential Property and Cas. Ins. Co., 276 F.3d
720, 722–23 (5th Cir. 2002); Gebbia v. Wal-Mart Stores, Inc., 233
F.3d 880, 882 (5th Cir. 2000).
8
LA. CODE CIV. PROC. ANN. art. 893(A)(1) (West 1984 & Supp.
2001).
6
exceeds $75,000.9 When the case is one that has been removed from
state court, such party may satisfy this burden in either of two
ways: (1) by demonstrating that it is “facially apparent” from the
petition that the claim likely exceeds $75,000 or (2) “by setting
forth the facts in controversy——preferably in the removal petition,
but sometimes by affidavit——that support a finding of the requisite
amount.”10
We have not yet clearly established —— and, indeed, might not
be able to establish —— the precise quantum of evidence required to
preponderate and thereby show an amount in controversy sufficient
to establish diversity jurisdiction. In De Aguilar11 —— a case
situated identically to this one —— we stated that, because “the
plaintiffs, in a bold effort to avoid federal court, []
specifically allege[d] that their respective damages will not
exceed the jurisdictional amount,”12
[t]he preponderance burden forces the
defendant to do more than point to a state law
that might allow the plaintiff to recover more
than what is pled. The defendant must produce
evidence that establishes that the actual
9
Manguno, 276 F.3d at 723; De Aguilar v. Boeing Co., 47 F.3d
1404, 1409, 1412 (5th Cir. 1995).
10
Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1335 (5th Cir.
1995) (emphasis in original); accord, Manguno, 276 F.3d at 723;
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).
11
De Aguilar v. Boeing Co., 47 F.3d 1404 (5th Cir. 1995).
12
Id. at 1409–10.
7
amount in controversy exceeds [the
jurisdictional threshold].13
The category of state laws that the De Aguilar panel appears to
have had in mind are those embodying the familiar maxim that a
court may award more in damages than the plaintiff demands.14 This
maxim contemplates the existence of a state statute or doctrine
that entitles a plaintiff to recover more than he has demanded.
Louisiana is such a state, and has been at least since 1960 when
its Code of Civil Procedure was enacted. Before that, essentially
every state court petition concluded with an express prayer for
general and equitable relief, which was considered to be a
prerequisite for obtaining a judgment in excess of or different
from the plaintiff’s express prayer or demand. Enactment of the
Louisiana Code of Civil Procedure eliminated the need for such a
talismanic incantation, thenceforth treating every petition as
though it contains such a prayer and expressly permitting a
judgment to exceed the prayer or demand:
Except [for a judgment by default], a final
judgment shall grant the relief to which the
party in whose favor it is rendered is
entitled, even if the party has not demanded
such relief in his pleadings and the latter
contain no prayer for general and equitable
relief.15
13
Id. at 1412 (emphasis in original; footnote omitted).
14
Id. at n.9 (“Such a holding would render the jurisdictional
amount all but meaningless in states with rules analogous to
FED.R.CIV.P. 54(c).”).
15
LA. CODE CIV. PROC. ANN. art. 862 (West 1984) (emphasis added).
8
Thus, if a defendant in a Louisiana suit can produce evidence
sufficient to constitute a preponderance showing that, regardless
of the style or wording of the demand, the amount in controversy
actually exceeds § 1332’s jurisdictional threshold, that Louisiana
case will then resemble any other amount-in-controversy case,
bringing into play the foundational rule of removal jurisdiction:
The plaintiff can defeat diversity jurisdiction only by showing to
a “legal certainty” that the amount in controversy does not exceed
$75,000.16 And we have emphasized that “this is not a burden-
shifting exercise”; rather, the “plaintiff must make all
information known at the time he files the complaint.”17
Finally, our special accommodation for testing the amount in
controversy in Louisiana cases in which the quantum of the
plaintiffs’ demand could not have been alleged in dollars because
of LCCP art. 893’s proscription, has engendered the recognition
that the federal district court’s jurisdictional-amount calculus
must include attorney’s fees when an applicable Louisiana statute
16
De Aguilar, 47 F.3d at 1412 (quoting St. Paul Mercury
Indemnity Co. v. Red Cab Co., 303 U.S. 283, 289 (1938)).
17
De Aguilar, 47 F.2d at 1412.
9
allows the award of such fees.18 Until 1995, however, those cases
involved individual actions, not class actions.
C. Abbott
Then along came Abbott. It required us to decide, in the
context of Louisiana class actions, whether the potential for an
award of attorney’s fees under a Louisiana statute specific to the
cause of action at issue (price fixing in Abbott) must be included
by the district court in determining the amount in controversy;
and, if so, how such fees are to be attributed.19 Being a price-
fixing case rather than an ordinary tort case, Abbott implicated
§ 51:137, which 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 the damages sustained by him, the cost of
suit, and a reasonable attorney’s fee.20
This provision obviously requires the court to tax attorney’s fees
(1) to the losing defendant, (2) over and above damages, and (3) in
addition to other costs. Generally, in the context of a Louisiana
class action, attorney’s fees under § 51:137 would be attributable
18
Manguno, 276 F.3d at 723–24 & n.3 (construing LA. REV. STAT.
§ 22:658, which provides that an insurer “shall” pay attorney’s
fees as a penalty for not paying the insured within thirty days
following submission of a claim); Foret v. Southern Farm Bureau
Life Ins. Co., 918 F.2d 534, 537–38 (5th Cir. 1990) (determining
that LA. REV. STAT. § 23:632, which uses the mandatory “shall,”
supported an award of attorney’s fees).
19
Abbott, 51 F.3d at 526.
20
LA. REV. STAT. ANN. § 51:137 (emphasis added).
10
pro rata to each prevailing class member as a “person who is
injured.”21 Thus, the sole relevant issue in Abbott was whether
art. 595(A) changes the attribution to require that the total
amount of attorney’s fees assessable against the defendant under §
51:137 be attributed exclusively and entirely to the class
representatives.
None dispute that in Abbott we answered this question in the
affirmative, holding that, in calculating the amount in
controversy, all awardable attorney’s fees must be attributed to
the class representatives to the exclusion of the other members of
the class.22 Neither is it disputed that we based that holding on
art. 595(A)’s requirement that attorney’s fees allowed as an
element of litigation expenses are to be allowed exclusively to the
class representatives.
Although today’s inquiry begins with Abbott’s rule attributing
all class action attorney’s fees to the class representatives, it
is important to recognize at this juncture that in Abbott we were
not required to decide, and in fact could not and thus did not
decide, whether, in the absence of a separate statute imposing
attorney’s fees on the losing defendant (such as § 51:137 in
Abbott), art. 595(A) either requires or permits the attorney’s fees
that the court may “allow” to the class representatives to be
21
Id.
22
Abbott, 51 F.3d at 526–27.
11
included in the jurisdictional-amount calculation. The obvious
reason why this issue (which is the one squarely presented to us
today) was not before us in Abbott is that there was present in
Abbott a state statute (§ 51:137), that (1) was specific to the
price-fixing cause of action, (2) was separate from and in addition
to art. 595(A), and (3) mandated the payment of attorney’s fees to
prevailing class members. Therefore, the only question presented
in Abbott was whether, for purposes of calculating the amount in
controversy, attorney’s fees recoverable under § 51:137 were
attributable (1) ratably to all class members, or (2) exclusively
(and entirely) to the class representatives. Thus, art. 595(A)’s
sole function in Abbott was to supply the ratio decidendi for
holding that attorney’s fees allowable in a Louisiana class action
must be attributed to the class representatives. It follows, then,
that because a separate attorney’s-fees statute was present in
Abbott, anything we might have said about attorney’s fees allowable
under art. 595(A), when standing alone, would have been dicta.
Nevertheless, some judges of the Eastern District of Louisiana
have read Abbott expansively, apparently conflating its attribution
holding with the unaddressed question of art. 595(A)’s authorizing
the allowance of attorney’s fees vel non. These jurists have read
Abbott to stand for the proposition that, absent some other
attorney’s fees statute, the attorney’s fees allowable (as distinct
from attributable) under art. 595(A) cannot be counted toward the
class representatives’ amount in controversy. More than one of
12
these judges seized on Abbott’s use of the word “key”23 in
referencing to § 51:137, to read our holding as requiring the
presence of a separate attorney’s fees statute every time. But
such a reading would make the word “key” carry much more water than
intended.
“Key” in Abbott is not synonymous with “indispensable” or
“prerequisite” or “sine qua non”, or “necessary.” It is merely a
rhetorical segue to the factual observation that, in that
particular case, the attorney’s fees, which happened to be
authorized by a separate statute, were attributable to the class
representatives and thus includable in calculating the amount in
controversy. This in turn obviated any need to look to art. 595(A)
as a possible source of authority to allow attorney’s fees. Simply
put, our reference in Abbott to the “other” statute as “key”24
cannot be read to mean that attorney’s fees must be supplied by a
separate statute in every case. In fact, after that segue, §
51:137 is never again mentioned in the Abbott opinion: The entire
substantive analysis focuses on the attribution function of art.
595(A), never mentioning its authorization function.
As settled law, Abbott’s rule of attribution of attorney’s
fees to the class representatives is not questioned by the parties.
Abbott did not, however —— and, given the presence of § 51:137,
23
Abbott, 51 F.3d at 526.
24
Id.
13
could not —— address whether, standing alone, art. 595(A) can also
serve as an independent source of attorney’s fees in the absence of
a separate statutory source. This is the question that has divided
the judges of the Eastern District of Louisiana since Abbott, and
this is the res nova question squarely presented today.
As noted, there is no provision of Louisiana law that allows,
much less commands, the court to impose an award of attorney’s fees
on the defendant who is cast in judgment in an individual
(non–class action) tort case. So, if this were an individual tort
action rather than a class action, the determination of the amount
in controversy for purposes of removal and remand could not include
attorney’s fees. But alas, this is a Louisiana class action, so we
are bound, in the wake of Abbott, to analyze art. 595(A) further
and determine whether, in addition to being the source of Abbott’s
holding that attorney’s fees are attributable to class
representatives, this code article, standing alone, is also the
source of a class-action exception to Louisiana’s no-attorney’s-
fees-in-tort-suits rule. For the reasons hereafter explained, we
hold that it is.
D. Art. 595(A), Louisiana Code of Civil Procedure
1. Plain Wording
In its entirety, art. 595(A) reads:
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
14
compromise is had which is beneficial, to the
class.25
Literally, this article is expressed (1) permissively, using “may”
rather than “shall”; and (2) conditionally, authorizing the court
to allow the representative parties to recover litigation expenses
(which expressly include attorney’s fees) only if the class
litigation is the producing cause of either (a) a common “fund”
that is available to the class or (b) some other type of “recovery
or compromise” that is beneficial to the class. We first note
that, on its face, this code article does not condition the court’s
authority to grant fees on the class’s being successful to the
point of judgment; rather, art. 595(A) requires only the
availability of either a common fund or some other result that is
beneficial to the class: The fund or the other recovery can
eventuate either from a judgment or from some non-judicial
disposition, such as settlement, compromise, alternative dispute
resolution, or the like.
We next note that the plain wording of art. 595(A) does not
literally limit the permissible sources available for attorney’s
fees. Facially, the code article does not restrict the source of
such court-allowed fees to the fund or other recovery for the
benefit of the class; the article requires only that such benefit
result from the class litigation. Neither does the article either
25
LA. CODE CIV. PROC. ANN. art. 595(A).
15
expressly authorize or expressly prohibit the court’s tagging the
defendant with such fees. The Official Revision Comments to art.
595(A)26 can be read as the Legislature’s elimination of any
question of source by stating its intention that attorney’s fees
allowed to the class representatives under authority of art. 595(A)
are “to be paid out of the fund or benefits made available” by the
class representatives’ litigation efforts. In Louisiana’s code-
drafting scheme, however, such comments are not “the law,” but
rather are instructive or clarifying. Like legislative history,
they are most compelling when the code article itself is ambiguous
—— and we are not prepared to say that art. 595(A) is ambiguous.27
Instead, we assume arguendo that art. 595(A) does not authorize the
26
LA. CODE CIV. PROC. ANN. art. 595, official rev. cmt. (bold in
original, emphasis added, and citation omitted):
Official Revision Comments——1960
(a) It is intended, in the first paragraph [art.
595(A)], that the reasonable expenses of litigation
allowed the successful representative parties is [sic]
to be paid out of the fund or benefits made available
by their efforts....
(b) The consistent policy of Louisiana heretofore
has been to allow a successful litigant only his
taxable costs, and not to award attorney’s fees, unless
provided by statute or convention. Under the general
equity jurisprudence, reasonable expenses of litigation
in a class action, including attorney’s fees, may be
allowed the successful litigant. The above article
retains the consistent Louisiana policy with respect to
the class action.
27
The question whether the court can assess attorney’s fees
to the class action defendant on the strength of art 595(A) alone
need not be answered for our purposes today, so we leave it to
another day, preferably to a Louisiana court.
16
court to assess attorney’s fees to the class action defendant;
rather, that only the common “fund” or the other “benefits” made
available to the class by the class representatives’ litigation are
eligible sources of such fees.
Under that assumption, art. 595(A) remains a fee-shifting
statute, but the shifting is not between the class and the
defendant. Instead, the shifting is between the class
representatives and the rank and file members of the class.
Furthermore, such shifting is not restricted to common fund cases
(which this case is not): The court can allow fees to the class
representatives either from “a fund made available” or from “a
recovery or compromise ... which is beneficial” to the class.
Thus, in a non-fund case like this one, each class member’s damage
recovery could be reduced by the court and shifted to the class
representatives, even if art. 595(A) were construed narrowly to
prohibit the court from assessing attorney’s fees to the losing
tortfeasor.
In every Louisiana class action, then, the class
representatives could receive attorney’s fees from either (1) the
defendant directly, pursuant to a separate attorney’s fee statute,
or (2) the non-representative members of the class indirectly, as
a result of art. 595(A)’s fee shifting and attribution. In either
case, calculation of the anticipated recovery of the class
representatives —— the only one that matters for purposes of § 1332
—— must include those potential attorney’s fees in addition to
17
damages, just as Abbott commands. We know from Zahn v.
International Paper Co.,28 that in class actions, we separately test
the amount in controversy of each class member, whether class
representative or rank and file. We also know from Zahn that we
are not to aggregate the potential recovery of class members.29 In
addition, § 1367 instructs that the jurisdictional amount is
satisfied when the potential recovery (including attorney’s fees
when appropriate) of only one plaintiff exceeds § 1332’s threshold.
And Abbott confirms that when the federal court has jurisdiction
over at least one member of the class by virtue of (1) diversity of
citizenship and (2) a sufficient jurisdictional amount, that court
has supplemental jurisdiction over all diverse class members,
including those whose claims fall short of § 1332's amount-in-
controversy threshold.30
2. Mandatory or Permissive?
The class representatives would make much of the fact that
art. 595(A)’s authorization for the court to allow them attorney’s
fees is couched in permissive terms, employing “may” rather than
“shall.” Such reliance is misplaced. The only other federal court
of appeals to have addressed this issue directly is the Ninth
28
414 U.S. 291 (1973).
29
Id. at 296–302.
30
Abbott, 51 F.3d at 527–30.
18
Circuit which, in Galt G/S v. JSS Scandanavia,31 squarely held that
“where an underlying statute authorizes an award of attorney’s
fees, either with mandatory or discretionary language, such fees
may be included in the amount in controversy.”32 Notably, the state
statute at issue in Galt did in fact provide for the discretionary
award of attorney’s fees, so the quoted language clearly is not
dictum. As one leading treatise notes:
There is authority for the proposition that
when the applicable substantive law makes the
award of an attorney’s fee discretionary, a
claim that this discretion should be exercised
in favor of the plaintiff makes the requested
fee part of the statutorily required amount in
controversy.33
Here, the class representatives’ petition includes the prayer
for “their costs for the prosecution of this class action,” and
art. 595(A) defines “expenses of litigation” to include attorney’s
fees. Therefore, even though the general rule is that interest and
court costs are not includable in calculating the amount in
controversy,34 attorney’s fees are includable when the state statute
allowing cost shifting expressly defines the allowable expenses of
31
142 F.3d 1150 (9th Cir. 1998).
32
Id. at 1156 (emphasis added).
33
14B CHARLES ALAN WRIGHT, ARTHUR R. MILLER, & EDWARD H. COOPER, FEDERAL
PRACTICE AND PROCEDURE § 3712, at 277–78 & nn. 10–12 (West 3d ed. 1998
& Supp. 2002) (citing Galt and other cases).
34
28 U.S.C. § 1332(a) (requiring that the amount in
controversy exceed $75,000 “exclusive of interest and costs”).
19
litigation to include attorney’s fees,35 especially when the
plaintiffs expressly pray for recovery of costs. In the instant
case, art. 595(A) expressly authorizes the court to allow
attorney’s fees to the class representatives as a defined element
of the expenses of litigation; and although that alone is
sufficient in light of LCCP art. 862’s authorization of judgments
that exceed prayers or demands, it is further confirmed by the
class representatives’ prayer for recovery of costs. Furthermore,
on this point we are bound by Abbott, which relied on art. 595(A)
to include § 52:137’s attorney’s fees in the calculation of the
class representative’s amount in controversy. Declining to create
a circuit split with the Ninth Circuit, we hold that when there is
state statutory authority for the court to award attorney’s fees to
class representatives, “either with mandatory or discretionary
language, such fees may be included in the amount in controversy.”36
3. Symmetry: Art. 595(A) as a Default Provision
The propriety of this holding is underscored by a functional
analysis of art. 595(A) in the context of Louisiana’s statutory
class action scheme. Such a contextual reading of art. 595(A)
reveals that it is Louisiana’s default provision for attorney’s
fees in class actions. Remembering that (1) as a general rule,
35
“Generally, ‘costs’ do not include attorney fees unless such
fees are by a statute denominated costs or are by statute allowed
to be recovered as costs in the case.” BLACK’S LAW DICTIONARY 312 (5th
ed. 1979).
36
Galt, 142 F.3d at 1156.
20
Louisiana does not authorize the court to award attorney’s fees in
tort suits, and (2) art. 595(A) stands as a statutory exception to
that general rule for purposes of class actions, the function and
necessity of using “may” rather than “shall” becomes self-evident.
Art. 595(A) completes the attorney’s fees picture for Louisiana
class actions by covering the otherwise-unaddressed situation in
which (1) there is no separate statutory provision for attorney’s
fees, and (2) such fees could not be assessed against a defendant
cast in judgment were the action based on an individual delictual
claim rather than a class claim. The way that art. 595(A)
harmonizes Louisiana’s attorney’s fees rules in the context of
class actions is by empowering, without mandating, the court to
“allow” attorney’s fees to class representatives from funds or
other sources of recovery made available to the class —— whether by
judgment, settlement, or otherwise —— so long as such favorable
result is the product of the class litigation.
Quite simply, when there is a separate statute (such as
§ 51:137 in Abbott) that mandates assessment of attorney’s fees in
favor of the class and against the defendant, there is no need for
the court to invoke art. 595(A)’s default authorization to shift a
portion of the class members’ recovery for the benefit of those
class representatives who have contracted with the attorneys and
could be out of pocket for various costs and expenses. But when,
as here (and in myriad other Louisiana tort class actions)
attorney’s fees are not recoverable under some separate statute,
21
art. 595(A) clutches in to supply the default rule, authorizing the
court to “allow” attorney’s fees and other costs to the class
representatives out of the sums recoverable by the entire class in
recompense for damages —— specifically, the funds made available by
judgment, compromise, or any other source, as long as it results
from the class litigation and is for the benefit of all class
members —— whether in a common fund or in separate, individual
recoveries. Of course, this is only meet and right when the
recovery from which attorney’s fees are allowed flows from the
class action litigation.
It is this default function of art. 595(A) —— complementing as
it does, those situations, such as in Abbott, in which separate
statutes mandate attorney’s fees —— that explains why the redactors
of Louisiana’s Civil Procedure code consciously employed the
permissive “may” rather than the mandatory “shall.” Were it
otherwise, the class representatives would be, or at least could
be, the unintended beneficiaries of double dipping: In an Abbott-
like situation, receiving fees first from the defendant and then
from their fellow class members as a result of a mandatory
(“shall”) taxing of their respective shares of either a common fund
or separate awards of damages, would constitute a windfall to the
class representatives rather than a making them whole, as clearly
intended. The use of “may” avoids the potential of such a windfall
to the class representatives, imparting discretion to the court
either to (1) refrain from shifting a portion of the class members’
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recoveries from the rank and file to the class representatives when
a separate statute imposes attorney’s fees on the defendant, over
and above damages; or (2) shift a portion from the shares of the
non-representative class members by awarding therefrom attorney’s
fees and other costs to the class representatives when no other
source is available.37
III. Recap
In certifying the instant issue for interlocutory appeal under
28 U.S.C. § 1292(b), the district court stated: “There needs to be
uniformity on this issue.” Regarding the intra-district division
of authority, the court credited Chevron with the observation that
“the decision as to whether a diversity action can be successfully
filed in or removed to the Eastern District of Louisiana depends on
the luck of the draw.” And, at oral argument, counsel for the
class representatives confirmed the frustration of Louisiana class
litigants (and, presumably, the various divisions of the Eastern
District as well) when he stated: “However it falls, it’s of no
37
At oral argument, class counsel also advanced that this
court must decide whether art. 595(A) is substantive or procedural.
Counsel was mistaken for at least three reasons: (1) the Abbott
panel clearly treated the article as substantive to reach its
holding and, as the subsequent panel, we are bound by Abbott; (2)
despite its location in the LCCP, art. 595(A) is obviously
substantive on its face, specifying entitlement to costs and fees,
not when or how to plead them, whether a motion is required, or the
like; and (3) the law is settled that when a federal court sits in
diversity, entitlement to attorney’s fees is governed by state law.
See e.g., Shelak v. White Motor Co., 636 F.2d 1069, 1072 (5th Cir.
1981) (characterizing the issue of awarding attorney’s fees as
substantive, and collecting cases); United States v. Midwest
Construction Co., 619 F.2d 349, 352–53 (5th Cir. 1980).
23
matter to me. What we need is a federal court required to apply
this statute....and [] a clarification of the law.”38 Agreeing
wholeheartedly with the court and with counsel, we now resolve this
divisive issue —— once and for all, we hope.
When a Louisiana class action is removed from state to federal
court on the basis of diversity of citizenship, and the putative
class seeks remand to state court, contending, inter alia, that no
class member’s claim can exceed § 1332's minimum amount in
controversy, the party seeking to maintain federal jurisdiction ——
here, the nonresident defendant, Chevron —— must show by a
preponderance of the evidence that the claim of at least one
resident class plaintiff is greater than the minimum jurisdictional
amount, currently $75,000. If the cause or causes of action
asserted by the class are the kind for which Louisiana prohibits a
plaintiff from alleging a specific quantum of damages, then,
irrespective of the plaintiffs’ conclusional allegation that no
class member’s individual claim can exceed the jurisdictional
amount, another Louisiana law, LCCP art. 862, which allows the
court to render judgment greater than the relief requested,
provides sufficient authority for the court to include the
potential attorney’s fees award in calculating the amount in
controversy.
38
Class counsel also advanced a policy argument. As we find
the law clear on the issue presented by the instant case, we do not
address matters of policy, which are best left to the state when,
as here, state law is at the heart of the issue.
24
When a separate, specific Louisiana law provides for the award
of attorney’s fees (as was the situation in Abbott), art. 595(A)
requires all such fees to be (1) aggregated and attributed to the
class representatives, and (2) included in determining the value of
the class representatives’ claims when calculating the amount in
controversy. As there was such a separate state law provision for
attorney’s fees in Abbott, that panel had no choice but to leave to
a subsequent panel the question whether, absent such a separate
state law, art. 595(A)’s provision for allowing attorney’s fees to
class representatives, standing alone, suffices to require
inclusion of such fees, along with the class representatives’
potential substantive recovery, when testing for jurisdictional
amount. We are that subsequent panel, and we have done our best to
address the question head on.
As a result of this endeavor, we conclude that art. 595(A) is
a default provision in the law of Louisiana which functions to
ensure that, in the absence of a separate attorney’s-fees
provision, class representatives will nevertheless enjoy the
possibility of recovering attorney’s fees and other expenses of
litigation, even if such recovery should come not from the
defendant but from the individual recoveries of the other class
members; provided such recoveries are the result of the class
litigation. For purposes of § 1332, the source of such attorney’s
fees is immaterial, so long as they are (1) allowable by the court
and (2) attributable to the class representatives.
25
Art. 595(A) supplies authority for both of those facets of the
attorney’s fees issue in the class-action context —— attribution
and authorization. In Abbott, we looked to art. 595(A) solely as
the source of the rule of attribution of all attorney’s fees
exclusively to the class representatives. Today, we look
additionally to that same code article’s express authorization for
the court to allow attorney’s fees to the class representatives.
In conclusion, we hold, on the authority of art. 595(A), that when,
in connection with a Louisiana class action suit that asserts a
cause or causes of action for which there is no separate attorney’s
fees provision under Louisiana law, attorney’s fees are
nevertheless (1) allowable to the class representatives, and (2)
attributable to the class representatives for purposes of the
court’s calculation of the amount in controversy. Here, art.
595(A) serves dual purposes in the context of determining
jurisdictional amount in connection with removal and remand of
Louisiana class actions: (1) Art. 595(A) authorizes the allowance
of attorney’s fees to class representatives in default of fees
being provided by some other separate statute; and (2) as construed
in Abbott, art. 595(A) requires that allowable attorney’s fees be
attributed to the class representative(s) (to the exclusion of non-
representative members of the class) in calculating the amount in
controversy under § 1332. Stated differently, when a putative
Louisiana plaintiffs’ class advances a cause of action, such as
tort or strict liability, for which Louisiana makes no separate
26
provision for attorney’s fees, the aggregate fee allowable under
art. 595(A) shall be attributed entirely to the class
representatives and included in calculating the amount in
controversy.
The judgment of the district court denying remand to state
court is affirmed, and this case is returned to the district court
for further proceedings in that forum.
AFFIRMED AND REMANDED.
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