United States District Court, D. New Hampshire
B. McCafferty United States District Judge
question before the court is whether to remand this case back
to state court on the basis of its improper removal. The
court answers this in the affirmative and remands the case to
Hillsborough County Superior Court Northern District.
March 2018, Keane suffered severe injuries when he was pulled
into a rotating lathe at work. He claims that the injuries
caused permanent impairment and disability and in excess of
$500, 000 in medical expenses.
citizen of New Hampshire, Keane filed this action in
Hillsborough County Superior Court Northern District against
four defendants: (1) Okuma Corporation, the designer and
manufacturer of the lathe; (2) Okuma America Corporation
("Okuma America"), allegedly responsible for
distribution and maintenance of Okuma lathes in the United
States; (3) Robert E. Morris Company, LLC, allegedly the
exclusive distributor of Okuma lathes in New Hampshire; and
(4) Northland Tool & Equipment, Inc. ("NTE"),
which Keane alleges owned the lathe in question at the time
of his accident. Like Keane, NTE is a citizen of New
America removed the case to this court, alleging diversity
jurisdiction. In the notice of removal, Okuma America
asserted simply that NTE was "improperly joined."
NTE is the only defendant with New Hampshire citizenship and,
if permitted to remain in the case, NTE would defeat
diversity jurisdiction. Keane has filed a motion to remand
and requests compensatory sanctions in the form of
attorney's fees for what he contends was a baseless
removed case must be remanded if the district court lacks
subject matter jurisdiction. 28 U.S.C. § 1447(c). The
party who removes a case from state court bears the burden of
showing that such 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). Federal courts have diversity jurisdiction
under § 1332(a) when the amount in controversy exceeds
$75, 000 and the action is between "citizens of
different states." 28 U.S.C. § 1332(a). In a case
with multiple defendants, the presence in the action of a
single defendant that is a citizen of the same state as the
plaintiff deprives the district court of diversity
jurisdiction over the entire action. See Picciotto v.
Cont'l Cas. Co., 512 F.3d 9, 21 (1st Cir. 2008).
Keane argues that remand is appropriate because Okuma America
cannot establish diversity jurisdiction. Okuma America
counters that Keane's joinder of NTE was improper and an
attempt to defeat diversity jurisdiction.
establish federal subject matter jurisdiction based upon
fraudulent or improper joinder, a defendant must plead
improper joinder in its notice of removal and demonstrate
this claim on the merits. See Nordin v. PB&J Resorts,
LLC, No. 15-cv-509-JL, 2016 WL 2757696, at *2-3 (D.N.H.
May 12, 2016). This rule is consistent with the requirement
that a "notice of removal must make the basis for the
federal court's exercise of removal jurisdiction clear
and contain enough information so that the district judge can
determine whether removal jurisdiction exists."
Id. at *2 (internal quotation marks and alteration
Okuma America must establish subject matter jurisdiction by
persuading the court that, although there is a non-diverse
party in the case, removal was appropriate because plaintiff
fraudulently or improperly joined a non-diverse defendant.
Okuma America makes no allegations of "fraud" on
Keane's behalf; rather, Okuma America alleges only that
Keane improperly joined NTE as a defendant.
seeking to remove a non-diverse party on the basis of
improper joinder must persuade the court that there is
"no reasonable possibility that the state's highest
court would find that the complaint states a cause of action
upon which relief may be granted against the non-diverse
defendant." Universal Truck & Equip. Co., Inc.
v. Southworth-Milton, Inc., 765 F.3d 103, 108 (1st Cir.
2014). In the Fourth Circuit, the analysis is described as
follows: "Once the court identifies a glimmer of hope
for the plaintiff, the jurisdictional inquiry ends."
Harris v. State Farm Fire & Cas. Co., No.
5:31-CV-61-BO, 2013 WL 3356582, at *1 (E.D. N.C. July 3,
2013) (internal citation omitted); see also Grancare, LLC
v. Thrower by & through Mills, 889 F.3d 543, 548
(9th Cir. 2018) (remand appropriate in the Ninth Circuit
where there is a "possibility" that a state court
would find a basis for the claim).
party seeking removal must demonstrate improper joinder by
"clear and convincing evidence." Nordin,
2016 WL 2757696, at *3 (internal quotations omitted). This is
"a heavy burden." Id. In deciding whether
a party has met this "heavy burden," the court may
consider additional evidence beyond the pleadings. See
Id. Contested factual issues and "any doubt as
to the propriety of the removal" shall be resolved in
favor of remand. Id. at *1 (citation omitted);
see also Arriaga v. New England Gas Co., 483
F.Supp.2d 177, 182 (D.R.I. 2007) ...