United States District Court, D. New Hampshire
N. LAPLANTE UNITED STATES DISTRICT JUDGE
question presented in this case is whether the owner and
lessee of an easement are required and indispensable parties
to a lawsuit challenging the use of that easement. This case
involves property owners' efforts to prevent construction
of electric transmission lines over an easement burdening
plaintiffs' property in Stark, New Hampshire, part of a
190-mile project known locally as the Northern Pass. The crux
of plaintiffs' complaint is that the proposed use of the
easement is unreasonable and a breach of its express terms.
Invoking this court's diversity jurisdiction, 28 U.S.C.
§ 1332, they seek a declaratory judgment preventing the
project, see 28 U.S.C. § 2201, and monetary damages.
the court are plaintiff's motion to amend their
complaint and defendant's motion to
dismiss. The plaintiffs' proposed Amended
Complaint updates developments within the state utility
regulatory process and information regarding their potential
damages. The defendant's motion to dismiss
posits two arguments: 1) that the court lacks subject-matter
jurisdiction, Fed.R.Civ.P. 12(b)(1), because the complaint
fails to satisfy the $75, 000 amount-in-controversy threshold
set forth in 28 U.S.C. § 1332(a); and 2) that the
plaintiffs have failed to join two necessary and
indispensable parties -- the owner and lessee of the
easement, Fed.R.Civ.P. 12(b)(7) and 19.
reviewing the parties' submissions and hearing oral
argument, the court first grants plaintiff's motion to
amend. The court further finds that although the Amended
Complaint alleges sufficient facts (just barely) to satisfy
the jurisdictional amount, it must be dismissed because the
owner and lessee of the easement are both necessary and
indispensable parties, their joinder would defeat the
court's diversity jurisdiction, and the case cannot
“in equity and good conscience” proceed without
them. 28 U.S.C. § 1332(c); Fed.R.Civ.P. 19(b). The court
therefore grants defendant's motion to dismiss.
individual plaintiffs, Kevin Spencer and Mark Lagasse, are
each owners of plaintiff Lagaspence Realty, LLC, which, in
turn, owns the Percy Lodge and Campground in Stark,
Spencer and Lagasse are rebuilding an old boarding house to
create a year-round lodge and convenience
store. They have spent over $600, 000 on the
project. The property was, at all relevant times,
encumbered by a power line easement granted to Public Service
Company of New Hampshire (PSNH) by plaintiffs'
predecessor in title in 1946. The easement measures
approximately 2950 feet by 150 feet and is presently occupied
by an electric transmission line. The Northern Pass lines will
run above and parallel to the existing lines and will be
supported by steel lattice structures anchored to concrete
foundations. Unlike the present power lines on the easement,
the proposed transmission lines will be visible from the
plaintiffs' planned lodge. Five of these structures are to
be built on the easement at issue.
easement burdening plaintiffs' land is still owned by
PSNH, a New Hampshire corporation and regulated public
utility.In October 2015, PSNH leased the easement
to Northern Pass Transmission, LLC (NPT), a New Hampshire
entity established in 2010 to construct and own the proposed
transmission lines. NPT is a wholly-owned subsidiary of
Eversource Energy Transmission Ventures, Inc., which is, in
turn, a wholly-owned subsidiary of Eversource Energy, a
Massachusetts holding company. PSNH is also a wholly owned
Eversource Energy subsidiary. Defendant Eversource Energy
Service Co. a Connecticut corporation, is also a wholly-owned
subsidiary of Eversource Energy. It is a service company
performing non-power related tasks, including the provision
of administrative, accounting, engineering, financial and
legal services, to other wholly-owned Eversource Energy
subsidiaries,  such as PSNH.
court, as is usually required, turns first to the
jurisdictional question raised by defendant's motion. See
Dynamic Image Tech., Inc. v. United States, 221 F.3d 34, 38
(1st Cir. 2000) (“As a general matter, trial courts
should give Rule 12(b)(1) motions precedence.”). After
resolving that question -- in plaintiff's favor -- the
court will address the joinder issue.
to 28 U.S.C. § 1332, federal “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, ” and there is
diversity of citizenship. 28 U.S.C. § 1332(a). The
amount in controversy in an action such as this seeking
declaratory relief “is the value of the right or the
viability of the legal claim to be declared . . . .” CE
Design Ltd. v. Am. Econ. Ins. Co., 755 F.3d 39, 43 (1st Cir.
2014). Where, as here, there are multiple plaintiffs, each
must allege a claim that is in excess of $75, 000. Stewart v.
Tupperware Corp., 356 F.3d 335, 337 (1st Cir. 2004). The
plaintiff carries the burden to establish the jurisdictional
minimum amount. Id. at 338.
sum claimed by the plaintiff controls if the claim is
apparently made in good faith. It must appear to a legal
certainty that the claim is really for less than the
jurisdictional amount to justify dismissal.”
Id. (quoting St. Paul Mercury Indem. Co. v. Red Cab
Co., 303 U.S. 283, 288-89 (1938)). A plaintiff's
“‘general allegation of damages that meet the
amount requirement suffices unless questioned by the opposing
party or the court.'” Id. (quoting
Spielman v. Genzyme Corp., 251 F.3d 1, 5 (1st Cir. 2001)).
However, once the opposing party has questioned the amount,
“‘the party seeking to invoke jurisdiction has
the burden of alleging with sufficient particularity facts
indicating that it is not a legal certainty that the claim
involves less than the jurisdictional amount.'”
Id. (quoting Spielman, 251 F.3d at 5). This burden
may be met by amending pleadings or submitting affidavits.
Dep't of Recreation & Sports of P.R. v. World Boxing
Ass'n, 942 F.2d 84, 88 (1st Cir. 1991).
as previously noted, plaintiffs allege that they have spent
over $600, 000 renovating their property. This
assertion is supported by an affidavit detailing the
expenditures,  the accuracy of which the defendants do
not dispute. The plaintiffs further claim that the proposed
transmission lines will cause aesthetic damage to the
property which will both harm their prospective business and
diminish the property's value. They seek damages
“for their personal investment in money, equipment use
these allegations are sparse, the court, reading the
complaint liberally, Murphy v. United States, 45 F.3d 520,
522 (1st Cir. 1995), is satisfied that they are sufficient to
indicate “that it is not a legal certainty that the
claim involves less than the jurisdictional amount” of
$75, 000 to each of the plaintiffs. Stewart, 356 F.3d at 338.
The Complaint could be fairly read as alleging that the bulk
of plaintiffs' $600, 000 investment will be lost as a
result of the aesthetic damage to their property caused by
the alleged misuse of the easement. Whatever difficulty the
plaintiffs might ultimately have in proving their damages
“is largely irrelevant to the court's jurisdiction
because the pertinent question is what is in controversy in
the case, not how much the plaintiffs are ultimately likely
to recover.” Amoche v. Guarantee Trust Life Ins. Co.,
556 F.3d 41, 51 (1st Cir. 2009) (emphasis omitted). The court
therefore denies defendant's motion as to Rule 12(b)(1).
Failure to join
noted, plaintiffs have sued only EESC, but not PSNH, the
owner/lessor of the easement, or NPT, the lessee and project
proponent. Defendant argues that both PSNH and NPT are
required and indispensable parties, and because neither can
be joined without destroying diversity, the Complaint must be
dismissed. The court agrees.
Applicable legal standard
dismissal under Rule 19 is warranted is a two-part inquiry.
First, the court must determine whether the party is a
required party under Rule 19(a), and then whether it is an
indispensable party under Rule 19(b). United States v. San
Juan Bay Marina, 239 F.3d 400, 405 (1st Cir. 2001). If the
party is “required” but, as here, joinder is not
feasible because it would destroy diversity, Rule 19(b) then
requires the court to determine, “whether in equity and
good conscience, the action should proceed among the existing
parties or should be dismissed.” Fed.R.Civ.P. 19(b).
to join a party under Rule 19 is a grounds for dismissal
under Rule 12(b)(7). The Rule applies to “circumstances
in which a lawsuit is proceeding without particular parties
whose interests are central to the suit.” Picciotto v.
Cont'l Cas. Co., 512 F.3d 9, 15 (1st Cir. 2008). It
provides for the joinder of such
“required” parties when feasible. Fed.R.Civ.P.
19(a)(2). The joinder of non-diverse parties, for example, is
not “feasible” under Rule 19 because joinder
would undermine the court's diversity jurisdiction. In re
Olympic Mills Corp., 477 F.3d 1, 8 (1st Cir. 2007). The rule
ultimately provides for the dismissal of suits when the court
determines that the joinder of the “required”
parties is not feasible, but that they are, nonetheless, so
“indispensable” that the suit must not be
litigated without them. Fed.R.Civ.P. 19(b).
“furthers several related policies, including the
public interest in preventing multiple and repetitive
litigation, the interest of the present parties in obtaining
complete and effective relief in a single action, and the
interest of absentees in avoiding the possible prejudicial
effect of deciding the case without them.” Acton Co. of
Massachusetts v. Bachman Foods, Inc., 668 F.2d 76, 78 (1st
Cir. 1982). “Generally, ‘all interested parties
should be joined in a declaratory judgment action whenever
possible, ' in keeping with the purpose of the
Declaratory Judgment Act to fully and finally adjudicate the
controversy at issue.” RFF Family P'ship, LP v.
Link Dev., LLC, 849 F.Supp.2d 131, 137 (D. Mass. 2012)
(Gorton, J.) (quoting State Farm Mut. Auto. Ins. v. Mid-
Continent Cas. Co., 518 F.2d 292, 296 (10th Cir. 1975)).
“Where jurisdiction depends solely on diversity of
citizenship, the absence of a non-diverse, indispensable
party is not a mere procedural defect. Rather, it destroys
the district court's original subject matter
jurisdiction.” Picciotto, 512 F.3d at 20.
Rule 19(a), a party is “required” if:
(A) in that person's absence, the court cannot accord
complete relief among existing parties; or
(B) that person claims an interest relating to the subject of
the action and is so situated that disposing of the action in
the person's absence may:
(i) as a practical matter impair or impede the person's
ability to protect the interest; or
(ii) leave an existing party subject to a substantial risk of
incurring double, multiple, or otherwise inconsistent