United States District Court, D. New Hampshire
Lorraine MacDonald et al.
Jacobs' Family Trust
K. Johnstone United States Magistrate Judge.
Plaintiffs Lorraine and Peter MacDonald bring this action
against the Jacobs' Family Trust through its trustee,
Arthur Jacobs, alleging two counts of negligence and one
count of intentional infliction of emotional distress. The
plaintiffs contend that Arthur Jacobs's sister, Lisa
Jacobs, harassed and threatened the plaintiffs and made false
reports against them while residing with the Trust's
permission at a property the Trust owned that abutted the
plaintiffs' property. Originally filed in state court,
the Trust removed the matter to this court based on diversity
jurisdiction. See doc. no. 1. The plaintiffs move to remand
the case to state court, arguing that the removal was
untimely. Doc. no. 4. The Trust objects. Doc. no. 6. For the
reasons that follow, the motion to remand is denied.
plaintiffs first filed this action in state court on January
26, 2017. See doc. no. 1-1 at 5. On June 6, 2017, the
plaintiffs effected service of process on the Trust. See doc.
no. 4-2 at 1-2. The plaintiffs concede that this service did
not comply with New Hampshire law. See doc. no. 4-1 ¶ 2.
The Trust moved to dismiss the action for, among other
things, lack of personal jurisdiction. See doc. no. 1-5 at
3-30. On September 12, 2017, the state court denied that
motion on personal jurisdiction grounds, but directed the
plaintiffs to effect proper service within 60 days.
See doc. no. 1-7 at 20.
plaintiffs properly served the Trust on September 14, 2017.
See doc. no. 1-4. On September 22, 2017, the plaintiffs
received a $160, 000 jury verdict against Lisa Jacobs in a
separate action. Doc. no. 6-2 at 2-3. On that same day,
plaintiffs' counsel emailed counsel for the Trust and
indicated that this award would “constitute an element
of damages in connection” with this case. Id.
at 1. Plaintiffs' counsel referenced the jury verdict
form, which he attached to the email. Id. at 2-3. On
October 16, 2017, the Trust removed the case to this court.
Doc. no. 1.
procedure for removing civil actions is governed by 28 U.S.C.
§ 1446. Section 1446(b) sets forth two thirty-day
windows for removal. See Romulus v. CVS Pharmacy,
Inc., 770 F.3d 67, 73 (1st Cir. 2014). Section
1446(b)(1) generally requires that removal occur
“within 30 days after the receipt by the defendant,
through service or otherwise, of a copy of the initial
pleading setting forth the claim for relief upon which such
action or proceeding is based . . . .” Id.
(quoting 28 U.S.C. § 1446(b)(1)). But if that pleading
does not state a removable case, § 1446(b)(3) allows for
removal “within 30 days after receipt by the defendant,
through service or otherwise, of a copy of an amended
pleading, motion, order or other paper from which it may
first be ascertained that the case is one which is or has
become removable.” Id. (quoting 28 U.S.C.
§ 1446(b)(3)). The removing defendant has the burden of
showing that removal is proper. Fayard v. Ne. Vehicle
Servs., LLC, 533 F.3d 42, 48 (1st Cir. 2008).
Trust solely invokes this court's diversity jurisdiction,
and there is no dispute the parties reside in different
states, the removability of this action depends on whether
the amount in controversy exceeds $75, 000. See 28 U.S.C.
§ 1332(a). The plaintiffs contend that this was
ascertainable from the complaint,  and that the Trust therefore
should have removed this matter no later than thirty days
after it received the complaint. The Trust counters that it
could not ascertain that this matter was removable until it
received the September 22, 2017 email indicating that the
plaintiffs would seek to recover the $160, 000 verdict
against Lisa Jacobs as part of this lawsuit. Only then,
according to the Trust, was it clear that there was a
sufficient amount in controversy for this matter to fall
within this court's diversity jurisdiction.
plaintiff's pleading or later paper will trigger the
deadlines in Section 1446(b) if [it] includes a clear
statement of the damages sought or . . . sets forth
sufficient facts from which the amount in controversy can
easily be ascertained by the defendant by simple
calculation.” Romulus, 770 F.3d at 75.
“The defendant has no duty, however, to investigate or
to supply facts outside of those provided by the
court turns first to the complaint. This pleading plainly
does not include a clear statement of the damages sought. The
court therefore must determine whether it sets forth
sufficient facts from which the Trust could have easily
ascertained the amount in controversy by simple calculation.
The court concludes that it does not. Though the complaint
makes certain references to damages, see doc. no. 1-1
¶¶ 1, 29, 31, 33, and at one point states that the
plaintiffs are entitled to a “substantial monetary
reward, ” see Id. ¶ 31, there is no
indication that the plaintiffs seek to recover an amount
exceeding $75, 000 as part of this action. Thus, there was
no way for the Trust to ascertain from the complaint that
this case was removable. Receipt of the complaint accordingly
did not trigger the 30-day period under § 1446(b).
September 22, 2017 email is the only other document that
could have indicated to the Trust that this case met the
court's jurisdictional threshold. The court must
therefore determine whether that email provided sufficient
basis for the Trust to remove this action. The court has
little trouble concluding that it did. The First Circuit has
previously held that an email sent by a plaintiff constitutes
the type of “other paper” that can trigger §
1446(b)(3)'s thirty-day deadline. See Romulus, 770 F.3d
at 72. The September 22, 2017 email specifically indicated
that the plaintiffs would seek to recover the jury verdict
they received in their action against Lisa Jacobs as part of
this action. Doc. no. 6-2 at 1. And the jury verdict form,
referenced in and attached to the email, indicated that the
verdict totaled $160, 000. Id. at 2-3. Based on this
information, the Trust could easily ascertain that the amount
in controversy exceeded $75, 000. The September 22, 2017
email therefore triggered the thirty-day period under §
1446(b)(3). As the Trust filed its removal within thirty days
of that email, see doc. no. 1-1, removal was timely.
the parties only address timeliness in their papers, the
court has an independent obligation to ensure there is a
substantive basis for federal jurisdiction. See Henderson
ex rel. Henderson v. Shinseki, 562 U.S. 428, 434 (2011).
While in some cases this requires a separate analysis of
whether the amount actually in controversy meets the
jurisdictional threshold, see, e.g., Romulus, 770 F.3d 80-81;
Thomas v. Adecco USA, Inc., No. 1:13-cv-00070-JAW,
2013 WL 6119073, at *4-7 (D. Me. Nov. 21, 2013), in this case
this analysis is coextensive with the above determination
with respect to timeliness. Though the First Circuit has
never addressed the specific circumstances at issue in this
case, it has held in a similar context that a removing
defendant “must show a ‘reasonable
probability'” that the amount in controversy is
met. Romulus, 770 F.3d at 80 (citation omitted). The First
Circuit has stressed, however, that “the pertinent
question is what is in controversy in the case, not how much
the plaintiffs are ultimately likely to recover.”
Id. (emphasis in original) (citations omitted).
Here, the September 22, 2017 email plainly establishes that
the amount in controversy exceeds $75, 000. As there is no
dispute that the parties are diverse, there is a substantive
basis for diversity jurisdiction over this action. See 28
U.S.C. § 1332(a) .
In sum, the court concludes that the Trust timely removed
this action and that it falls within the court's
diversity jurisdiction. The plaintiffs' ...