United States District Court, D. New Hampshire
B. McCafferty United States District Judge
and Montha Oum brought suit in state court alleging claims
arising from injuries Sang sustained in a fall in defendant
Target Corporation's (“Target”) Nashua, New
Hampshire store. Target removed the case to this court,
asserting diversity jurisdiction under 28 U.S.C. § 1332.
Plaintiffs move to remand the case to state court on the
ground that the amount in controversy does not exceed the
requisite jurisdictional amount. See doc. no. 3.
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).
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 complaint does not claim a
specific amount of damages, removal from state court is
proper if it is facially apparent from the complaint that the
amount in controversy exceeds the jurisdictional
requirement.” Evans v. Yum Brands, Inc., 326
F.Supp.2d 214, 220 (D.N.H. 2004) (internal quotation marks
and citations omitted). Provided a plaintiff's claims are
“colorable, ” the court's inquiry does not
focus on their probable success but rather on “whether
to anyone familiar with the applicable law [the] claim could
objectively have been viewed as worth” the
jurisdictional minimum. Jimenez Puig v. Avis Rent-A-Car
Sys., 574 F.2d 37, 40 (1st Cir. 1978). 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).
their complaint, plaintiffs allege that as a result of his
fall, Sang “suffered the following serious injuries:
upper teeth jammed together and out of alignment; b. Two
broken teeth with exposed nerves; c. Multiple facial bone
fractures; d. Pain and swelling of the face; e. Broken eye
glasses; f. Pain and Suffering; and g. Permanent
Disability.” Doc. No. 1-1 at ¶ 8.
Plaintiffs assert claims for negligence on Sang's behalf
and loss of consortium on Montha's behalf.
their motion to remand, plaintiffs argue that the amount in
controversy does not exceed $75, 000. In support, they submit
a statement of benefits from Sang's health insurance
company, showing that his medical bills to date for injuries
sustained from the accident total $14, 770.65. They also
assert that Sang lost wages in the amount of $3, 000 - $5,
000 as a result of his injuries and that, other than
Sang's “need of some minor ongoing dental care, his
need for extensive medical treatment has essentially reached
an end.” Doc. No. 3 at ¶ 3.
response, Target notes that in addition to the damages
specified in plaintiffs' motion to remand, Montha also
seeks damages for loss of consortium. Further, they assert
that Sang seeks damages for pain and suffering and permanent
disability, and that plaintiffs seek to recover the costs of
litigation and attorney's fees. They further represent
that plaintiffs would not stipulate to a cap on damages of
$75, 000. Defendants contend that, viewed objectively,
plaintiffs' claims could be valued at more than $75, 000.
has shown by a preponderance of the evidence that the amount
in controversy exceeds $75, 000. Plaintiffs seek damages for
pain and suffering and loss of consortium, as well as
permanent injuries. Such claims could objectively be viewed
as worth more than $75, 000. Evans, 326 F.Supp.2d at
221(“Objectively viewed, Evans's claims for her own
alleged Hepatitis A and the loss of consortium and emotional
distress resulting from her family's allegedly coming
down with the disease could be valued at $75, 000 or
more.”); Stewart v. Tupperware Corp., 356 F.3d
335, 338 (1st Cir. 2004) (holding that married couple's
claims for slight “permanent impairment to their total
bodily functions” in addition to mental anguish and
loss of consortium not worth less than $75, 000 per
plaintiffs' motion to remand is denied.
foregoing reasons, plaintiffs' motion to remand ...