Pershing, L.L.C. v. Thomas Kiebach

motion, Appellants’ district court denied JONES, Before JOLLY and Circuit holding $75,000 that the amount in contro- *, Judges, Judge.. District MILLS versy requirement Pershing was met. Kiebach, LLC v. 101 F.Supp.3d 568 JONES, Judge: EDITH H. Circuit (E.D.La.2015). noted, district The court interlocutory an This is of appeal however, that courts have disa- denying Appellants’ court’s district order greed proper about the standard for .deter- 12(b)(1) R. Civ. Pro. motion to dis- Fed. mining in controversy amount miss, for lack subject jurisdic- of matter context of an confirming arbitration award tion, Appellee’s confirm an motion ar- $75,000, below proceeded certify Adopting bitration award. the better interlocutory pursuant issue for appeal approach reasoned to the amount in con- n 1292(b). granted U.S.C. This court circumstances, troversy under we interlocutory leave to file appeal, an AFFIRM the district court’s order and Appellants timely appealed. monetary hold that the amount sought underlying arbitration II. purposes diversity for applies This court novo de jurisdiction. standard of review and uses the same standard the district court when review

I. 12(b)(1) ing a to dismiss. LeClerc motion Webb, 405, (5th Cir.2005). Appellants 419 are who suffered F.3d 413 investors subject financial losses as a result R. Allen Issues of matter questions Ponzi Stanford’s scheme. their arbitra- reviewed de novo. Am. law Rice, Mill, complaint, tion million in Rice seeking dam- Inc. Producers 518 $80 321, Appellants ages, alleged Appellee 327 is to be “It (“Pershing”), presumed clearing broker for that a lies outside [a Stan- cause fed Group jurisdiction, eral Company, court’s] ford failed to disclose limited and the establishing contrary financial a two adverse information. After burden rests hearing, Industry asserting jurisdiction.” Regu- party week Financial (“FINRA”) latory Authority panel rejected Kokkonen v. Co. Guardian Ins. Life Am., claims, 511 114 Appellants’ them U.S. S.Ct. awarded (1994) (internal $10;000 in compensation omit certain arbi- L.Ed.2d citations ted). expenses. tration-related On November

* n filing Judge District of the to vacate in Northern District of Mis- similar motion Louisiana sissippi, sitting by designation. state court. That case removed later Louisiana, the Middle District Where it has Appellants also filed a motion to vacate the court, stayed pending been the resolution of the arbitrator's York award New dismissing voluntarily present before that action matter. au- cited er, ... having [the considered

III. the demand thority] the Court finds interlocutory- an granted court This Pershing, appropriate.” is more approach whether to decide appeal F.Supp.3d at 573. diversity ju establishing confirm petition over- risdiction arbi Appellants’ agree. We Based awarded is the amount million, district tration $80 demand or the panel the arbitration $75,000 correctly concluded proc previously controversy requirement was eeding.2 recog First, approach met. scope confronted true nizes Courts logical as ap parties. of' two one between generally follow issue pre or the efforts Appellants’ de sumption about award proaches—the Lothian, 532 award Karsner v. of this arbitration approach. mand vent confirmation (D.C.Cir.2008). to 876, pur “[U]nder they 882 second chance F.3d is that want $10,000 in contro approach, award award “is the sue their claims. by the amount versy litigation” began is-determined stage last but the regardless of underlying award controversy. arbitration Persh million with $80 Id.; Alar Baltin v. sought.” Therefore, amount the the at ing, F.Supp.3d 101 1466, 1472 Trading 128 F.3d Corp., million that is the at stake $80 Invs., Cir.1997); v. Hamilton Ford (11th arbitration, sought’ in initially Appellants Cir.1994). (6th In Inc., 255, 260 for arbitration-related the award minimal contrast, approach, the demand “[under] ts.4 cos controversy is the amount the rather underlying Second, approach arbitration sought in the the demand Id.; Bull conflicting awarded.” 3 of two the application avoids Hutson, 229 F.3d Sys., Inc. v. HN same controver for the jurisdictional tests Info Cir.2000); (1st Am. Guar. Co. v. 321, diversity 329 court has sy. The federal district Cir.1934), (9th 209, Caldwell, 72 compel to arbi 211 motion jurisdiction over a F.2d demanded tration based on the amount Appellants’ denying motion In its order Inc., Investacorp, 89 v. petition. Webb dismiss, concluded district court (5th 252, Under 256 F.3d approach was the correct the demand - however, the federal approach, award has strengths approach “[e]ach one: jurisdiction over later lack court would weaknesses, that will is one issue the arbitra- or vacate petition-to Howev- confirm Fifth Circuit. by the resolved law, approach, .the known.,as third 3. There-is a 2.“Although federal the FAA.constitutes interpreted has been held approach,” the stat Supreme has ‘the Court “remand request on the bestowing jurisdiction apply petition as not itself if includes a ute " Lothian, Karsner v. proceed- district courts.' reopen arbitration remand 876, (D.C.Cir.2008) (quoting F.3d 882 532 here. ing. is not the case Id. That Douglas, Fleming Folger Kasap Nolan (D.C.Cir.1999)); 1243, Inc., F.3d 1245-46 166 arbitration confirm Pershing’s See motion to Keating, Corp. 465 U.S. see also Southland claims, ¶ ("In sought to their Defendants 9 at (1984) 1 79 L.Ed.2d 16 n. S.Ct. damages losses the R. recover as their (the law re substantive FAA "creates federal Ponzi scheme Allen Stanford agree quiring parties to honor $80,000,000.”). ments, indepen not create ... [but] federal-question jurisdiction under dent otherwise.”). (1976) U.S.C. 1331 if tion award the same award the diversity tensive with jurisdictional falls below threshold. present would otherwise been if the ap See “The. award 883-84. litigated had been rather than arbi litigation proach promote would needless trated,” (internal Id. at 884 quotation “litigants and'gamesmanship” may because omitted); marks and citation see also frivolous, potentially or unnecessary file Stores, Luong v. City Circuit arbitration in compel order motions (9th Cir.2004) (Kozin- 1197-98 preserve right their for a federal forum ski, J., withdrawn, dissenting), opinion Pershing, review of eventual award.” Cir.2004).5 essence, 368 F.3d 1113 In 101 F.Supp.3d they at 574. do This could the amount in measured by, filing motion compel inway same litigation and, granted, seeking stay it is once petitions submitted on matters to com court proceedings pending further mo pel arbitration: plaintiffs pleading, tions to confirm or vacate the final award. governs result ultimate Conversely, under the approach, jurisdiction. purely litigation tactical will and meritless reasons, For these we that “the conclude likely ways, be avoided. de approach has the appeal,” least approach effectively acknowledges mand while “the demand is soundest “the close connection between arbitration because, it avoids anomalous and unwar- subsequent proceedings” and enforcement in inconsistencies a ranted court’s “to federal helps carry and policies out the federal jurisdiction.” 883; of 532 HN F.3d at favor arbitration.” Bull Info. 329; Sys., Hall, LLC, 229 F.3d at see Tele-Town also F.Supp.2d 798 at Smith Hall, LLC, Tele-Town 798 F.Supp.2d Accordingly, we the dis- AFFIRM (E.D.Va.2011) 755 (recognizing “Con trict court’s order.6 gress’s tailoring relationship careful of the courts, MILLS, MICHAEL P. Judge, District between district and arbitration concurring only: panels.”). result (cid:127) Third, that, agree the I approach majority demand -with the “the dis- the allows district court to concluded,. correctly exercise .coex- trict court based on absurdity approach] "The of the can The using case-by- [award concurrence advocates a by considering be approach, demonstrated opposed adopting gen the case as to $100,000 (i.e., example: X claims Y owes him approach) in a eral the demand to amount, (cid:127) dispute.. contract The jurisdictional ordered to arbi- determine the tration, Research, up and the arbitrator comes with an on Theis concurrence relies Inc. v. $80,000. Bain, (9th Cir.2005), award'of X claims he was entitled 400 Brown & F.3d 659 petitions to more and interprets to have the award opinion va- the case’s revised approach, cated. Under adopts the the dis- one fact-specific analysis [award] rejects jurisdiction. trict court have if the approach adopted would But $30,000 happens original opinion. Interestingly, the concur arbitrator —or nothing Theis, interpretation all —because of same claimed rence’s narrow which error, legal juris- case, party the district court would proposes lack neither in this clashes principled diction. There is no with a opinion. distinction more recent Ninth Circuit cases; Pierce, Smith, petitioner pre- between the Lynch, two if the See Merrill Fenner & Moore, vails either Fed.Appx. the award will be vacated Inc. v. 546 171 Cir.2006) Theis, petitioner 662) will be (quoting back in arbitration F.3d at $100,000. seeking (" logic his full I can see no underlying ‘[T]he amount at stake in the letting very at all in litigation, award that is the fruit not the of the award, govern of the claimed error is the amount of for the , , controversy.” ”). purposes diversity jurisdiction____’ necessary or that it is either advis- that the amount believe of this

the facts general “approach” on able to such should decided based be I in this in arbitration. context. million demand the $20 I believe that separately because write carefully when one reads believe appeal to this framed parties appellate the various federal decisions manner which has in an issues overbroad sce- this context considers the factual majority holding make a led inevitably comes to presented, narios one necessary in case. than is is broader majority the conclusion vast my to make clear view also write reasonable. This decisions are legal assumptions underlying many appellate deci- true whether federal erroneous, interlocutory appeal are sion the amount of question considered upon descriptions largely inaccurate award, demand, the amount precedent set forth the state to arbitration is whether remand opinion' Circuit’s Karsner in the D.C. important factor in be most deter- (D.C.Cir.2008). Lothian, mining controversy. Kars- ner that the federal courts majority’s instructs us inclination understand certified; into various question sharply “approaches” answer divided simply context, indeed, yet initial such true when also inclination. was was However, interlocutory opinion written. To in cases where an the D.C. Circuit’s now, suspect appears is true legal as- the extent such appeal is based largely us to the result Karsner’s sumption, I feel it is incumbent outsized Unfortunately, has granted interlocu- influence. Karsner be- correct it. This court something self-fulfilling prophe- come of a controlling issue tory appeal resolve courts, including cy, many method of deter- since proper of law as “the for the in this mining number of district courts circuit (and case) diversity accepted in establishing jurisdic- the one this purpose petition the law in premise to confirm an arbitra- Karsner’s that tion over in parties litigation to this context is one which courts must tion award.” The federal that, deciding single “approach” in when determin- clearly anticipated choose a issue, ing two this court choose between amount in issues. The would context, in this Kars- “approaches” majority accepted name- has likewise alleged premise opinion in in this ly approach” “demand “award ner its case. agree approach.” parties seem I majority, initially accepted Like the namely “approach,” a third alleged premise at value and be- Karsner’s face inapplicable is approach,” the “remand required lieved that- this court was here. “approaches” choose from the two which case, Certainly, providing arguably namely clarification to dis- relevant and, goal, is a if approach” trict courts laudable either “demand “award determined, ap- approach.” I how- approach” or the “demand have since the “award ever, paradigm Karsner’s provided what felt reliable basic proach” be faulty. Su- assessing nothing amount in contro- There is the U.S. standards preme versy jurisprudence to confirm arbitra- suggesting issues motions Court’s awards, necessary too that it or advisable for happy tion be is either would single circuit factor of such a How- courts to choose a support adoption rule. ever, be amount in con- appel- used to determine the closer review context, arbitra- troversy in all motions to confirm late case law in this I do awards, risdiction at the time the Baltins circumstances. filed no matter the tion FAA suit. of 9 of the version The current likely if and it seems

enacted Baltin, 128 F.3d at 1472. for the Supreme Court intended the U.S. Inv., Similarly, in Ford v. Hamilton in this con- issues (6th Cir.1994), 29 F.3d 255 the Sixth single determined based text Circuit, finding in con that the amount by factor, so then it would have indicated troversy requirement was met over- In court’s now. wrote that: duty to determine whether the riding alleges that complaint Mr. Ford’s" particu- in a is met panel Hamilton In- awarded any single I fail to how lar arid see $26,666.63, $3,857.53 plus vestments correct possibly yield could figures obvi- interest. The total these result in all cases. $50,000. ously exceed In the proceedings Mr. Ford the D.C. Circuit conducted $50,000against more Harii- claimed authority in this a review nationwide Investments, ilton but he never asked arid, vari- doing, classified context so to order that the arbi- the district court as the “award ous. circuits against his claim Hamil- reopen trators approach” or “remand proach,” Investments; ton he from all classifications in approach.” Karsner’s vacation of an district court was the stage in the regard, even at this late jurisdictional fell short law, suspect. to be note that appear $20,000. almost circuit court which were certain decisions following the by Karsner as Ford, described 260.1 F.3d at quite nar- actually were “award circuit courts which experience, In my language no decisions included row adopt particular standards as bind- seek to general applicability. adopting any rule generally ing in do so after future cases Trading Corp., 128 In Baltin v. Alaron considering variety appli- factors wide Cir.1997), example, F.3d 1466 bar, also only to the case cable not analysis of whether Circuit’s di- Elevénth no There is such other cases as well. jurisdiction existed was versity simply decisions, two analysis contained follows: cite another decision do of them nor either dictating specific from their circuit

Finally, must determine we whether in consider deter- they must diversity jurisdiction factor district court had 1332(a). It thus controversy. in mining the amount 28 U.S.C. over case. See in that courts clear to me the circuit remedy seems by The maximum the that, vacatur, simply concluded the arbitra- Baltin and Ford Baltins was the them, before the $36,284.69.16. on the facts Diversity based tion award of be de- in issue should it amount did not exist because was of the award in amount cided “legal certainty” a that the amount in based cases, a attempt no $50,000, those with than less was in this context.2 general diversity ju- “approach” required Corp., 313 Fed. Toyota Motor See I in written after Fernicola note a decision Kars- (2d Appx. ner, similarly the Second Circuit considered relevant, most with the amount of the award in the case of the clearer 2. This is made even regard. “approach” in adopting any out below, which, as discussed Eleventh Circuit Thus, case,.unlike in in the district that Baltin and agree I with While Ford, represents is most the arbitrator’s award the amount of the demand relevant lower, upper, range possible not the in that results believe litigation relating-to from results the valid- quite in Baltin and Ford were reached ity, of Accordingly, award. reasonable, arbitrator’s presented the facts in amount of the award delving deeply too in those cases. Without far Ford,, less reliable basis for constitutes into of Baltin and note the facts evaluating the here they that each involved factual scenarios Baltin, .and Ford. This illustrates clear, at of the filing where it the time was quite simple point that different cases action, no party of the was are and that different different factors continuing recovery to seek excess may resolving be relevant jurisdictional amount. Baltin them. Ford each to vacate arbi- involved motions I also note that some the decisions by parties tration awards which were filed following which Farmer described as judg- who had received adverse financial con particular approach purported arbitration, against ments them sistent ostensibly with decisions which fol jurisdictional amount below the federal Indeed, approach. low Fars- different amount.3 As noted the aforementioned ner the Ninth Circuit’s decision .described petitioners quotations, each those Research, Bain, in Theis Inc. v. Brown & sought to have ver- cases the arbitration (9th Cir.2005) 664-65 zero, against dicts them reduced and the adopting the approach,” circuit courts in those decisions thus found cited, Theis apparent approval, with the arbitration represented awards decisions, which, Baltin and Ford once upper limit of any financial award again, have been cited as which might result from the motions approach.” harmonizing “award its re vacate. That being strikes me as Baltin, sult example, with that reasonable conclusion based the facts Circuit in Ninth Theis noted that the Elev of those cases. enth Circuit had stressed that the plain tiffs in not request Baltin “did an award contrast,

In this appellee provide[them] modification that would witli happy pay $10,000 too Instead, money. [they] sought merely to it; against indeed, award entered it has reduce or eliminate the arbitration to appellants. tendered Theis, against them.” 400 F.3d at Moreover, appellee filed its motion to con- Baltin, citing 128 F.3d at n. 16. firm under circumstances where had every believe, good faith reason If leading what Farsner described as events, by subsequent confirmed circuit court decisions favor of the “de- pellants oppose would approach” the arbitrator’s mand “award award, goal obtaining with clear actually agreement recov- in substantial with other, ery jurisdictional excess amount. each then must wonder how real plaintiff’s request later found for a remand In the fact that' Baltin and Ford vacate, involved motions to rather dispositive, empha to arbitration than con- while firm, arbitration awards does not remove sizing this result was that consistent with Indeed, Baltin, their relevance this case. both Pierce, Lynch, See Peebles v. Merrill appeal sides to this have relied authori- Fenner Smith 1325-26 relating ties both motions to confirm and (11th Cir.2005). awards, arbitration it me vacate and seems to principles apply that similar should to each. adopt actually initially appeared such' are. alleged “approaches” proach quickly thought better -of the idea. that Karsner de stating, I note so- In Indeed, rehearing, in Bull the Circuit’s decision on motion for Ninth the First scribed Hutson, 229 F.3d Sys., opinion Inc. Theis its HN Circuit in. modified Info. Cir.2000) (1st “applying” as replace generalized .“de consistent language, but this characterization approach,” merely mand with an to one which “approach” Indeed, clearly finding, seems inaccurate. that made a caserspecific judgr reserved specifically First Circuit amount of the issue, writing that: ment on most In other relevant that case. words, the,Ninth opin- modified its is another issue Circuit in the issue Hidden not' That exactly ion- to what this concurrence we note do resolve. do is Ninth Cir- requirement Specifically, the is the amount recommends. whether including at issue before the cuit in Theis a sentence where the sums deleted met language: of the arbitration at the start arbitrator (non-partial) final exceed $75,000, Our we measure conclusion-that $75,000, award is less amount at controversy by amount in sought merely judicial relief litigation is con- underlying stake dismissing merely con- vacating and only sistent not with American Guaran- firming the award. circuit, ty from this but with decisions Bull, at Circuit First from as well. other circuits the amount instead decided Theis, 400 The deleted sen- F.3d at 661. spe- in that case factors issues sen- replaced tence was with proceedings, cific to bifurcated tence: id., quite clear that it thus seems see the amount Our decision to measure any gen- nor adopted Bull neither followed by the amount approach.” eral “demand litigation is underlying at stake doubt, Giving Karsner the benefit American consistent with “ap argued the term it could be circuit, but de- Guaranty from this with ambiguous and-that proach” itself from other circuits well. cisions following particular to a reference Id. necessarily mean “approach” Thus, general- approach. follow different the Ninth Circuit deleted it would never - minimum, however, stating language the Karsner “we measure At bare ized confusing, approach is courts district litigation” underlying interpreted circuit have the decision at stake single one factor far more limited requiring replaced courts to out with language See, merely finding e.g. stating all others. Bus that the court was

to elevate above Const., LLC, in contro- “in Massey 2015 WL this case” by v. Bruce 12, 2015); (S.D.Miss. on that basis. *1 Nov. versy should be measured Hita, at *4 Ninth 2009 WL its revised opinion, Curbelo In Circuit 2009). to its (W.D.Tex. Removing con the modifications July specifically noted enough writing opinion, reason that: regard in this seems fusion from ourselves distance amendments, foregoing With the deny the unanimously to panel voted general has deciding whether Judge Trott has rehearing. petition.for regard, consider it approach in for re- deny petition to -also voted which significant that one circuit 188 banc, to Judges Thompson and I do wish be

hearing en cumulative unnec Karsner, denial of that essarily criticizing recommend harsh Weiner petition. logic since that decision’s undergirds the majority’s opinion, I in will note another implication clear Id. at 661. The stance in which inaccurately the decision that, initially releasing an after above is precedent. characterized another circuit’s opinion generalized lan- which included Specifically, the D.C. Circuit wrote that something like a guage adopting “demand Circuit, the Eleventh it which described quickly Circuit real- approach,” the Ninth initially “follow[ing] approach” the award holding gave to conflicts rise ized its Baltin, “appeared] to have more re other cir- with decisions from reasonable cently adopted approach.” the remand opinion accordingly modified its cuits and Karsner, 882-83, at citing F.3d Pee holding case-specific and there- make Pierce, Lynch, bles v. Merrill Fenner & by having to rehear either avoid Smith 1325-26 panel or F.3d en banc. submit, however, both It from the manner in which seems clear Baltin and Peebles represent entirely logi framed the Ninth Circuit the issues cal and correct of determinations initially adopt Theis that it intended in controversy issues the facts setting holding broad forth that circuit’s that, contrary each case and to amount issues neither adopted “approach” decision an in I can this context. discern no reason consistent with the other. Ninth why the Circuit would have modified opinion in it its the manner did other Indeed, the Eleventh Circuit in Peebles greatly its holding. narrow The fact that it regarded made it clear its decision intent, that it was the Ninth Circuit’s Baltin, writing consistent with that: language in modifying question, This issue is a matter of first impression away move approach” from “demand for this court. Baltin does not speak to is made even clearer the fact that the the issue raised maxi- here because “the language immediately preceded modified sought” mum remedy by the portion opinion investors where the court was the vacatur the arbitration approvingly wrote the Baltin and Ford against them that Clearly, not exceed the opinion decisions. an can not did required satisfy minimum adopted said 28 U.S.C. of, proach” if it 1332. 128 at approvingly writes 1472. Here the with, remedy claims to be maximum consistent decisions Peebles which deem amount of of a the award most vacatur- zero dollar relevant.4 award and new hearing that, majority Lynch, judges Recognizing this fact than the award. argument urge his which he could $2,000,000 require adoption of the “re- to up to does he entitled was merely requires that a court approach”; hold it damages. We mand a jurisdiction where subject matter has of common sense. application to vacate an arbitration seeking party that there are reasonable federal Given seeking a new arbitration is also award each of the finding decisions appellate will, a sum hearing at demand which-he context, I can factors relevant in this three in controver- exceeds which no to the Karsner see benefit sy diversity purposes. for single factor to selecting a approach approach consistent with This is Indeed, it above the two. elevate other circuits that have proach by taken other riiay to me that there well be appears question. occasion-to address this had factors which are relevant ádditiohal Research, See, Brown e.g., Theis Inc. v. a situ- example, context. For consider Cir.2005); Bain, plaintiff a makes a demand ation which Hutson, 229 Sys., Inc. Bull HN Info. is unrealis- completely which (1st F.3d 321 Assume, a example, tic. Peebles, at 1325-26. find the I. million an arbitra- a plaintiff $10 Peebles to be of both and logic Baltin his sole claim was tion action which clear, was sim- I Karsner believe damage to his vacuum cleaner. property characterization ply incorrect in its that the arbitrator further award- Assume these decisions. value of the only the fair market ed $200 appel- that most of the federal submit that, a motion was cleaner and vacuum may easily late-authority in this context court to confirm that in federal filed that such reconciled with each other a court should district award. may persuasive author- precedent serve as look to take realistic have the discretion This is ity for district courts to consider. determine the facts of case and if the decisions are ana- particularly true notwithstanding sense, of common lyzed paradigm from a arbitration, amount in con- demand example, I “approaches.” For rather than not met. clearly troversy requirement was reviewing that a believe district entirely me as finding would Such strike able of this case Theis would be facts reasonable, fit it though even why readily to understand “ap- alleged one the three within most plaintiffs’ deemed see benefit simply do not proaches.” relevant, to like Baltin opposed cases unduly the discretion attempting limit Ford, the amount of the where award in con- courts of district decide dispositive. By the same was considered context. troversy issues in this token, readi- think district court would adopt- I note that point, As an additional why Eleventh Circuit ly understand (or other ing Peebles, plaintiff seeking a faced awith counter to the would also run approach) arbitration, that fact as remand viewed closely in a this circuit has taken in arbi- trumpipg the amount award context, namely legal declarato- analogous tration; rendering distinguish- Baltin thus liability insur- ry judgment actions filed Indeed, of com- simple able. matter motions Conceptually-speaking, ers. sense, illogical mon consider simi- arbitration awards confirm if dispositive in arbitration actions, arbitration, declaratory judgment since lar plaintiff seeking to return they essentially judicial declaration greater seek might he an amount where seek is a required. an valid one believe that such a that dards legal It is applicable under the standards. flexible would serve this circuit view, my that this cir- significant, in well in the instant as well. In thus context flexible adopted quite cuit has simple broad is that there is no fact determining in for standards size fits all” in this “one solution context ac- declaratory in controversy judgment “approach” whereby and that adopting tions filed insurers. in controversy all amount issues are decid- upon single simply ed factor based In St. Paul Co. Green Reinsurance not work. that our circuit’s believe stan- (5th Cir.1998), berg, declaratory judgment dards context company sought insurance a dec plaintiff demonstrate that we can offer district liability arising from its laration denial guidance on making courts amount in con- context, In this of the insured’s this claim. troversy ty- unduly determinations without that the amount in contro court concluded ing their hands. versy right “the value be injury to protected or the extent of the light foregoing, In I agree with Greenberg, prevented.” 134 F.3d at 1253. majority proper- court the district Clearly, this is broad and flexible ly plaintiffs’ in relied and, standard, while has fre this court deciding in amount of quently relied controversy requirement was met in this assessing plaintiffs demand ease, but I would decline to declaratory judgment ac categorical “approach” in this context. tions, adopted categorical it has no rule works well While regard. Ins. Group v. enough I believe it Hartford lead to will (5th Cir.2002), this, Lou-Con 293 F.3d 908 incorrect results .when court is faced example, found that' the with a facts such involving as those in requirement or respectfully Baltin Ford. therefore n declaratory judgment not met in that result, ac only. concur tion, partly on the nature of limited claims in that insurance case. Hart ford, 29 F.3d 912. This court also

noted, however, might that we consider in certain other

different factors insurance In re DEEPWATER HORIZON. example, cases. For this court noted policy “under certain circumstances the Holdings, Incorporated; Seacor Seacor 'limits will establish the amount in contro Offshore, L.L.C.; Marine, Seacor relating versy,” particularly in cases to the L.L.C., Owner, Regis as Beneficial “validity of the contract entire between the Owner, Managing tered Owner of parties.” citing Id. at 14B Charles Vanguard Petitioning Seacor M/V Wright, Alan Arthur R. &Miller Edward From Limitation Exoneration n Cooper, H. Federal Practice Proce Liability, Petitioners-Appellees (3d dure: 3d ed. Jurisdiction . v 1998). Duwayne Mason, Claimant-Appellant Thus, recognized court has that a categorical adopting rule a variant Production, Exploration declaratory judgment BP Incor “demand rule” greater porated; context would be unwise and BP Production America BP, flexibility Company; p.l.c., Appellees. stan- notes adopt Merrill concerns of who did not wish to Pierce, Smith, Moore, approach. again, such a broad in- Once Fenner Inc. v. tent of the Ninth Circuit in Theis clear seems (9th Cir.2006), Fed.Appx. the Ninth light specifically of the fact that the Court quoted language certain Circuit in Theis with, praised, and claimed to be consistent support not been had modified It Baltin Ford. self-evident if seems application "ap- a broad demand regard the Ninth Circuit would proach.” simply reflects the being determining award as factor originally fact that Theis was written to appropriate then that circuit approach, appears that the follow the "demand at all. I do Ninth Circuit modified the bare minimum of not believe that this do so ei- circuit should language opinion assuage so as to ther.

Case Details

Case Name: Pershing, L.L.C. v. Thomas Kiebach

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Apr 6, 2016

Citation: 819 F.3d 179

Docket Number: 15-30396

Court Abbreviation: 5th Cir.