United States District Court, D. New Hampshire
ORDER Opinion No. 2014 DNH 229.
JOSEPH A. DiCLERICO, Jr., District Judge.
Debra Chase brought suit in state court alleging that her former employer, Corning, Inc., discriminated against her in violation of RSA 354-A, retaliated against her, and wrongfully terminated her employment. Corning removed the case to this court, asserting diversity jurisdiction under 28 U.S.C. § 1332. Chase moves to remand the case to state court on the ground that the amount in controversy does not exceed the jurisdictional amount. Corning objects.
Standard of Review
A removed case must be remanded to state court if the district court lacks subject matter jurisdiction. 28 U.S.C. § 1447(c). Federal courts have diversity jurisdiction under § 1332(a) when the parties are citizens of different states and "the matter in controversy exceeds the sum or value of $75, 000, exclusive of interest and costs." § 1332(a). The party who removes a case from state court bears the burden of showing that federal jurisdiction exists. DaimlerChrysler Corp. v. Cuno , 547 U.S. 332, 342 n.3 (2006); Pruell v. Caritas Christi , 645 F.3d 81, 84 (1st Cir. 2011).
"If removal of a civil action is sought on the basis of the jurisdiction conferred by section 1332(a), the sum demanded in good faith in the initial pleading shall be deemed to be the amount in controversy." 28 U.S.C. § 1446(c). When, as in this case, the state court pleading seeks a money judgment but the state practice does not permit a demand for damages, "the notice of removal may assert the amount in controversy." § 1446(c)(2)(A). Removal based on § 1332(a) is proper if the removing party shows by a preponderance of the evidence that the amount in controversy exceeds $75, 000. § 1446(c)(2)(B).
Chase moves to remand the case, arguing that the amount in controversy does not exceed $75, 000. She contends that although she seeks back pay, front pay, compensatory damages, enhanced compensatory damages, punitive damages, and attorneys' fees, the amount in controversy does not exceed $75, 000 because she was seriously injured in a car accident and her resulting inability to work eliminates her claim for front pay and severely restricts her claim for back pay. In response, Corning contends that Chase only attempted to restrict her damages after the case was removed, challenges her evidence, and argues that her claims for compensatory, enhanced, and punitive damages would meet the jurisdictional amount without considering whether her front and back pay claims are diminished.
Chase provides opinion evidence that her injuries in the accident will likely prevent her from working. Corning argues that Chase improperly presented evidence of her inability to work. Corning also contends that the evidence Chase offers cannot be considered because it does not pertain to the appropriate time and does not meet the summary judgment standard. Corning provides evidence of Chase's wages and benefits through the affidavit of Kristin Kowaliw, Human Resource Manager at Corning's Keene facility where Chase worked.
A. Materials to Be Considered
Corning challenges the evidence Chase submitted in support of her motion to remand, which consists of two expert opinion reports. One is a psychological report prepared by Eric G. Mart, Ph.D., ABPP, and the other is a vocational assessment prepared by James T. Parker, CVRP, CRC. The psychological report is dated September 2, 2014, with an addendum dated September 19, 2014, and the vocational assessment is dated September 22, 2014. Both reports address Chase's abilities and deficits after her accident. The psychological report identifies significant symptoms and difficulties related to her injuries from the accident, and the vocational assessment concluded that Chase is totally disabled from competitive employment and is likely to remain disabled from work.
1. Who May Submit Evidence
Corning asserts that only the defendant, who bears the burden of proof on the jurisdictional issue, may provide evidence to the court. While the cases Corning cites discuss the evidence submitted by the defendants, that is to be expected when the court is assessing whether the defendant met its burden. Contrary to Corning's theory, the First Circuit directs that "deciding whether a defendant has shown a reasonable probability that the amount in controversy exceeds [the jurisdictional amount] may well require analysis of what both parties have shown." Amoche v. Guarantee Tr. Life Ins. Co. , 556 F.3d 41, 51 (1st Cir. 2009); see also Hogan v. Wal-Mart Stores East, L.P., 2014 WL 66658, at *3 (D.R.I. Jan. 8, 2014) (explaining that plaintiff may overcome defendant's showing on the amount of damages by establishing to a legal certainty that the amount is less than $75, 000). Therefore, the court may consider evidence provided by both Corning and Chase.
Corning argues that the opinion evidence Chase submitted does not pertain to the pertinent time for assessing whether the amount in controversy exceeds $75, 000. In support, Corning argues both that the amount in controversy is determined as of the time the complaint was filed and that the amount is determined as of the time of removal. In the context of a motion to ...