United States District Court, D. New Hampshire
Joseph N. Laplante United States District Judge.
This negligence action implicates removal from state court, the forum defendant rule, and joinder. The interplay between these procedures and rules, however, makes the case sound more complicated than it is.
Plaintiff Suriana Nordin suffered severe injuries at a resort in Jamaica. She brought suit in Hillsborough County Superior Court, alleging two counts of negligence. The defendants removed the case to this court, alleging diversity of the parties. See 28 U.S.C. § 1332(a). Invoking the forum defendant rule, see 28 U.S.C. § 1441(b)(2), Nordin moves to remand the case because one of the defendants, PB&J Resorts, LLC, is a citizen of New Hampshire. Defendants cross-move for leave to amend their notice of removal and also to dismiss the action as against PB&J Resorts, LLC. See Fed. R. Civ. P. 12(b)(6).
After a careful review of the parties’ filings and hearing oral argument, the court concludes that removal was improper because PB&J Resorts, LLC is a citizen of New Hampshire. Accordingly, Nordin’s motion for remand is granted. The court further concludes that the defendants’ proposed amendments to the notice of removal would be futile and, accordingly, denies that motion.
I. Applicable legal standard
“[A] motion to remand a removed case to the state court involves a question of federal subject matter jurisdiction . . . .” BIW Deceived v. Local S6, Indus. Union of Marine & Shipbuilding Workers, 132 F.3d 824, 830 (1st Cir. 1997). “In the course of this inquiry, the removing party bears the burden of persuasion vis-à-vis the existence of federal jurisdiction.” Id. at 831. Where the defendants have raised fraudulent joinder as the basis for diversity jurisdiction, that burden is a heavy one. Rosbeck v. Corin Grp., PLC, No. 15-12954-LTS, 2015 WL 6472249, at *3 (D. Mass. Oct. 27, 2015). Any legal ambiguities “in the controlling state law” are resolved “in favor of the non-removing party, ” id. (quoting Burden v. Gen. Dynamics Corp., 60 F.3d 213, 217 (5th Cir.1995)), and “[a]ll contested factual issues and any doubt as to the propriety of the removal must be resolved in favor of remand, ” Renaissance Mktg., Inc. v. Monitronics Int'l, Inc., 606 F.Supp.2d 201, 208 (D.P.R. 2009).
In the summer of 2014, Nordin and her fiancé vacationed at the Hedonism II resort in Jamaica. While there, Nordin was permanently paralyzed in an accident on an inflatable water slide erected by the resort or its staff.
Nordin sued the four defendants in Hillsborough County Superior Court, alleging one count of negligence and one of negligent hiring, training, and supervision of the staff who encouraged and participated in the sliding activity. The complaint does not distinguish among the defendants, alleging that they “have maintained interrelated management, officers, directors and ownerships of each respective company for purpose of owning, operating, marketing and advertising the resort, ” and that they “collectively control the operation” of the resort. Compl. ¶ 8.
The defendants timely removed the case to this court, invoking diversity jurisdiction. See 28 U.S.C. § 1332. The defendants alleged that Nordin, the plaintiff, is a citizen of Pennsylvania; defendants PB&J Resorts, I (Jamaica) Ltd. and PB&J Resorts, II, (Jamaica) Ltd. are Jamaican corporations with their principal places of business in Negril, Jamaica; defendant Marshmallow (St. Lucia) Ltd. is a St. Lucian corporation with its principal place of business in St. Lucia; and PB&J Resorts, LLC, “is a limited liability company incorporated in Delaware with a principal place of business in Manchester, New Hampshire.” Notice of Removal (document no. 1) at 2. Four days later, Nordin moved to remand the case to the Superior Court.
A. The forum defendant rule
As discussed supra, the sole basis invoked in the notice of removal for this court’s jurisdiction is diversity of the parties. This court generally has original jurisdiction over civil actions
where the matter in controversy exceeds the sum or value of $75, 000, exclusive of interest and costs, and is between citizens of different States; citizens of a State and citizens or subjects of a foreign state; [and] citizens of different States and in which ...