Case: 10-51166     Document: 00511695905         Page: 1     Date Filed: 12/14/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                        December 14, 2011

                                       No. 10-51166                        Lyle W. Cayce
                                                                                Clerk

BRIAN LARREMORE; JEAN LARREMORE,

                                                  Plaintiffs–Appellants
v.

LYKES BROTHERS INC,

                                                  Defendant–Appellee



                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 4:08-CV-21


Before BENAVIDES, PRADO, and GRAVES, Circuit Judges.
PER CURIAM:*
        In this diversity jurisdiction case, Brian and Jean Larremore challenge the
district court’s judgment enforcing a mediation agreement that settled a
property boundary dispute between the Larremores and Lykes Brothers, Inc.
(“Lykes”). Although the parties never objected to jurisdiction, we asked for
supplemental briefing on whether Lykes met its burden as the removing
defendant to “‘prove by a preponderance of the evidence that the amount in
controversy exceeds’ the jurisdictional amount.” Garcia v. Koch Oil Co. of Tex.,

       *
         Pursuant to FIFTH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in FIFTH
CIR. R. 47.5.4.
   Case: 10-51166   Document: 00511695905      Page: 2      Date Filed: 12/14/2011



                                  No. 10-51166

, 638–39 (5th Cir. 2003) (quoting De Aguilar v. Boeing Co., 

, 58 (5th Cir. 1993)). We find that the record is insufficiently developed with
respect to the amount in controversy, and we remand for the limited purpose of
determining whether the amount in controversy exceeds $75,000.
      The Larremores filed suit against Lykes in Texas state court seeking
declaratory and injunctive relief in an attempt to settle a dispute over property
boundaries and obtain an easement across Lykes’s property. Lykes removed the
suit to the United States District Court for the Western District of Texas,
invoking diversity jurisdiction. In the notice of removal, Lykes alleged that:

      The amount in controversy exceeds $75,000, excluding interest,
      costs, and attorney fees. 28 U.S.C. § 1332(a). Plaintiffs have sued
      for a an [sic] easement for egress and ingress to real property they
      own in Brewster County, Texas totaling 2507.05 acres. In
      paragraph 44 of their petition, the plaintiffs claim that “without an
      easement for egress and ingress Plaintiff’s land will be rendered
      valueless.” The value of the plaintiff’s acreage exceeds $75,000.

Lykes did not attach any evidence to the notice of removal other than the
Larremores’ original state court complaint, which also did not allege any specific
value of the claims at issue. The Larremores did not object to the removal and
the issue of subject matter jurisdiction was not considered below. Similarly, the
parties did not raise jurisdiction as an issue on appeal.
      “Although neither party raises the issue of subject matter jurisdiction, this
court must consider jurisdiction sua sponte.” EEOC v. Agro Distrib., LLC, 

, 467 (5th Cir. 2009) (citation omitted). As stated, the party seeking to
invoke federal diversity jurisdiction has the burden to prove that the amount in
controversy exceeds the jurisdictional amount. 

; see also
28 U.S.C. § 1332(a) (“The district courts shall have original jurisdiction of all
civil actions where the matter in controversy exceeds the sum or value of
$75,000, exclusive of interest and costs.”). That burden may be satisfied in


                                        2
   Case: 10-51166    Document: 00511695905      Page: 3   Date Filed: 12/14/2011



                                  No. 10-51166

either of two ways. 

. First, jurisdiction will be proper if
“it is facially apparent” from the complaint that the “claims are likely above
[$75,000].” 

“If the value of the claims is not apparent,
then the defendants may support federal jurisdiction by setting forth the
facts—[either] in the removal petition [or] by affidavit—that support a finding
of the requisite amount.” 

marks and citation omitted).
“[R]emoval ‘cannot be based simply upon conclusory allegations.’” Felton v.
Greyhound Lines, Inc., 

, 774 (5th Cir. 2003) (quoting Allen v. R&H
Oil & Gas Co., 

, 1335 (5th Cir. 1995)). Here, the Larremores did not
seek any specific amount of damages in their original state court complaint.
Rather, they sought declaratory and injunctive relief that would ultimately
establish an easement over Lykes’s property. “In actions seeking declaratory or
injunctive relief, it is well established that the amount in controversy is
measured by the value of the object of the litigation.” Hunt v. Wash. State Apple
Adver. Comm’n, 

, 347 (1977); 

(quoting
Hunt).
      Due to the incomplete nature of the factual record, we cannot determine
if the amount in controversy exceeds the jurisdictional requirement. Given the
extent of the property in this case, we think that a remand for development of
the record and determination of jurisdiction is appropriate. See U.S. ex rel. Miss.
Road Supply Co. v. H.R. Morgan, Inc., 

, 986 (5th Cir. 1976) (per
curiam) (remanding to district to develop record and determine subject matter
jurisdiction); Airline Maint. Lodge 702 v. Loudermilk, 

, 802 (5th Cir.
1970) (per curiam) (vacating judgment and remanding for determination of
jurisdiction because “of the inadequacy of the briefs of both parties”); see also
Valdez v. Allstate Ins. Co., 

, 1117–18 (9th Cir. 2004) (remanding
to district court to determine if amount in controversy is met); Samuel-Bassett
v. KIA Motors Am., Inc., 

, 403 (3d. Cir. 2004) (same); Williams v.

                                        3
   Case: 10-51166    Document: 00511695905      Page: 4    Date Filed: 12/14/2011



                                  No. 10-51166

Best Buy Co., 

, 1321 (11th Cir. 2001) (same). Although ultimately
the district court might find that there is not jurisdiction, a remand will at least
allow this determination to be made with a complete factual record, a record
which was never developed because the parties never litigated the merits below
and never objected to jurisdiction. See Mehlenbacher v. Akzo Nobel Salt, Inc.,

, 298–99 (2d Cir. 2000) (remanding for determination of amount in
controversy and stating that in some cases it is unfair to dismiss based on
jurisdiction where opportunity was not given to develop record in district court).
We therefore REMAND for the limited purpose of determining whether the
amount in controversy exceeds $75,000.
      REMANDED.




                                         4