Toglan v. Boston Copley Place Marriott Corporation et al

Filing 14

Chief Judge Mark L. Wolf: ORDER entered. MEMORANDUM AND ORDER In view of the foregoing, it is hereby ORDERED that Toglan's Motion for Remand Under 28 U.S.C. §1447(c) (Docket No. 6) is ALLOWED and this case is REMANDED to Suffolk Superior Court.(Hohler, Daniel)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CHRISTIAN TOGLAN,
Plaintiff,
v.
MARRIOTT INTERNATIONAL, INC.
Defendant.

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C.A. No. 10-10954-MLW

MEMORANDUM AND ORDER
WOLF, D.J.
I.

August 15, 2011

INTRODUCTION
On February 23, 2010, plaintiff Christian Toglan ("Toglan")

filed a complaint in Suffolk Superior Court against defendant
Marriott International, Inc. ("Marriott").1 The complaint alleges
that defendant violated Massachusetts General Laws chapter 151B in
two ways, by: (1) discriminating against Toglan by failing to
promote him because of his race, color, and national origin; and
(2) retaliating against Toglan by harassing him after he complained
about discrimination. The complaint's two counts raise solely state
law claims.
Defendant timely filed a notice of removal pursuant to 28
U.S.C. §§1441 and 1446, stating that this court has jurisdiction
over this case pursuant to 28 U.S.C. §1332(a) because there is

1

The complaint also improperly named Boston Copley Place
Marriott Corporation as a defendant. The complaint was
subsequently amended to name only Marriott as a defendant. See
Am. Compl. at 1. However, in its Answer, "Marriott [still] states
that Plaintiff has misnamed the Defendant. The correct Defendant
is Marriott Hotel Services, Inc., not Marriott International,
Inc." Answer at 1 n.1.

diversity of citizenship between the parties and the amount in
controversy exceeds $75,000.
Pursuant to 28 U.S.C. §1447(c), Toglan timely filed a motion
to remand (the "Motion"), stating that the amount in controversy
requirement of 28 U.S.C. §1332(a) has not been met because the
complaint does not assert that the amount in controversy exceeds
$75,000. Marriott opposes the Motion on the grounds that Toglan
has, in fact, alleged claims that would, if successful, likely
yield more than $75,000 in damages and attorneys' fees.
For the reasons described below, the Motion is being allowed
and this case is being remanded.
II.

LEGAL STANDARDS
A.

Removal Pursuant to Diversity Jurisdiction and Remand

When a plaintiff files suit in state court and asserts
exclusively state causes of action, a defendant may remove the case
to the appropriate district court if the case is one in which the
district court could have exercised original jurisdiction, meaning
that the case involves an amount in controversy greater than
$75,000 and pits citizens of different states against one another.
See 28 U.S.C. §1332(a), (a)(1) (diversity jurisdiction); 28 U.S.C.
§1441(a) (removability); 28 U.S.C. §1446 (procedure for removal).
However, a plaintiff may respond to a notice of removal by
filing a motion to remand the case to state court if, among other
reasons, the plaintiff believes that the district court lacks

2

subject matter jurisdiction. See 28 U.S.C. §1447(c). Indeed, even
if no such motion is filed, the court has "an unflagging duty to
ensure that it has jurisdiction over the subject matter of the
cases it proposes to adjudicate [and, therefore, is] obliged to
address the propriety of removal." Am. Policyholders Ins. Co. v.
Nyacol

Prods.,

Inc.,

989

F.2d

1256,

1258

(1st

Cir.

1993)

(considering whether removal was proper, despite parties' agreement
that the federal courts had subject matter jurisdiction). On this
point, 28 U.S.C. §1447(c) states that, "[i]f at any time before
final judgment it appears that the district court lacks subject
matter jurisdiction, the case shall be remanded."

The First

Circuit has recently made clear that "[t]his command is obligatory
. . . ." Hudson Savings Bank v. Austin, 479 F.3d 102, 108-09 (1st
Cir. 2007).
B.

The Burden of Establishing Federal Diversity Jurisdiction

"Under our dual sovereign system, the plaintiff is the 'master
to decide what law he will reply upon.'" Danca v. Private Health
Care Sys., Inc., 185 F.3d 1, 4 (1st Cir. 1999) (quoting Fair v.
Kohler Die & Specialty Co., 228 U.S. 22, 25 (1913)). In light of
that fundamental premise, when a plaintiff files a complaint in
state

court

and

the

defendant

responds

by

invoking

federal

jurisdiction through removal, the defendant has the burden of
establishing that removal to the district court is proper. See
Valentin v. Hosp. Bella Vista, 254 F.3d 358, 366 (1st Cir. 2001);

3

Danca, 185 F.3d at 4; MB Auto Care Mgmt., Inc. v. Plaza Carolina
Mall, L.P., 695 F. Supp. 2d 1, 2 (D.P.R. 2010) ("[I]n case of
removal, the removing party bears the burden of showing that no
plaintiff is a citizen of the same state as any of the defendants,
and that the matter in controversy exceeds $75,000, excluding
interests and costs."). This includes "the burden to show that the
amount in controversy meets the jurisdictional threshold." Ciardi
v. F. Hoffman-La Roche, Ltd., C.A. No. 99-11936-GAO, 2000 WL
159320, at *1 (D. Mass. Feb. 7, 2000).
"Subject

matter

jurisdiction

is

not

a

'nicety

of

legal

metaphysics' but rests instead on 'the central principle of a free
society that courts have finite bounds of authority.' Courts must
be careful to respect these limits on their authority." Christopher
v. Stanley-Bostitch, Inc., 240 F.3d 95, 101 (1st Cir. 2001)
(internal

citations

omitted).

When

federal

subject

matter

jurisdiction is doubtful, those doubts should be resolved in favor
of remand. See Boyer v. Snap-on Tools Corp., 913 F.2d 108, 111 (3d
Cir. 1990); Padilla-Gonzalez v. Local 1575, 635 F. Supp. 2d 105,
108 (D.P.R. 2009); In re Mass. Diet Drug Litig., 338 F. Supp. 2d
198, 202 (D. Mass. 2004).
In this case, the parties agree that the complete diversity
requirement of §1332(a)(1) has been met, and the court concurs.
Toglan is a citizen of Massachusetts. See Am. Compl. at 2. Marriott
is a Delaware corporation with its principal place of business in

4

Maryland. See Answer at 3. The sole issue is whether more than
$75,000 is in controversy in this case, as required by §1332(a).
The analytical process for determining whether a party seeking
removal has established that the amount in controversy requirement
is met depends on whether the plaintiff has, in good faith, pled an
amount in controversy above or below the jurisdictional threshold.
See Karofsky v. Abbott Labs., 921 F. Supp. 18, 20 n.3 (D. Me.
1996). In this case, Toglan's complaint does not specify the amount
in controversy. It states only that the "amount in controversy
exceeds $25,000." Am. Compl. at 1.
"The First Circuit has not yet articulated the defendant's
burden of proving the amount in controversy where the plaintiff has
not claimed a specific amount of damages in the pleadings." Nollett
v. Palmer, C.A. No. 02-265-JD, 2002 WL 1674379, at *2 (D.N.H. July
18, 2002). As a whole, "[t]he federal courts are split on which
standard to use to determine whether a case can be removed if no
[precise] amount in controversy was pleaded at the state court
level, but all seem to agree that the burden of proof remains with
the defendant." 14AA Charles A. Wright, et al., Federal Practice
and Procedure §3702 (3d ed. 2009).
The majority approach favors a preponderance of the evidence
standard. "When the plaintiff's damages are unspecified, courts
generally require that a defendant establish the jurisdictional
amount by a preponderance of the evidence." Martin v. Franklin

5

Capital Corp., 251 F.3d 1284, 1290 (10th Cir. 2001); see, e.g.,
Bell v. Hershey Co., 557 F.3d 953, 956 (8th Cir. 2009) (stating
that this standard applies "whether the complaint alleges no
specific amount of damages or an amount under the jurisdictional
minimum") (internal quotation marks and citation omitted); In re
1994 Exxon Chemical Fire, 558 F.3d 378, 387 (5th Cir. 2009);
Lowdermilk v. U.S. Bank Nat'l Ass'n, 479 F.3d 994, 998 (9th Cir.
2007); Smith v. Nationwide Prop. & Cas. Ins. Co., 505 F.3d 401,
404-05 (6th Cir. 2007); Miedema v. Maytag Corp., 450 F.3d 1322,
1330 (11th Cir. 2006); Gilman v. BHC Sec., Inc., 104 F.3d 1418,
1421 (2d Cir. 1997); cf. Bartnikowski v. NVR, Inc., 307 F. App'x
730, 734 & n.7 (4th Cir. 2009) (applying preponderance of the
evidence standard with the agreement of the parties, without
explicitly adopting it as law of the circuit, but noting that
several circuits have explicitly adopted this approach "where
plaintiffs leave damages unspecified"). But see Samuel-Bassett v.
KIA

Motors

America,

Inc.,

357

F.3d

392,

398

(3d

Cir.

2004)

(requiring the "defendant to show to a legal certainty that the
amount in controversy exceeds the statutory minimum").
While

not

explicitly

adopted

by

the

First

Circuit,

the

majority approach has been used by several courts within it. See,
e.g., Lowe v. Sears Holding Corp., 545 F. Supp. 2d 195, 196 (D.N.H.
2008) ("Where, as here, the complaint does not put any number on
the plaintiff's claimed damages, this court requires the removing

6

defendant to show by a preponderance of the evidence that the
amount

in

controversy

exceeds

the

jurisdictional

minimum.");

Doughty v. Hyster New England, Inc., 344 F. Supp. 2d 217, 219 (D.
Me. 2004) (remanding case because defendant failed to "establish[]
by a preponderance of the evidence that the amount in controversy
exceeds $75,000"); Karofsky, 921 F. Supp. at 20 ("The burden is on
the defendants, as the removing parties . . . to show that it is
more likely than not that [plaintiff's] recovery [would] exceed the
jurisdictional amount."); Gabrielle v. Allegro Resorts Hotels, 210
F. Supp. 2d 62, 65 (D.R.I. 2002) (same). But see In re M3Power
Razor Sys. Mktg. Practices Litig., C.A. No. 05-111777-DPW, 2007 WL
128846, at *4 (D. Mass. Jan. 11, 2007) (denying plaintiff's motion
to remand because the court could "not fairly find to a legal
certainty that the amount in controversy is $75,000 or less");
Harvard Real Estate-Allston, Inc. v. KMART Corp., 407 F. Supp. 2d
317, 321 (D. Mass. 2005) (explaining propriety of remand because
"it is apparent to a legal certainty that the amount in controversy
does not meet the requisite threshold").
Notably, the First Circuit employs a similar "preponderance of
the evidence" framework in analogous circumstances. For example, if
a defendant seeks removal pursuant to diversity jurisdiction, and
the plaintiff challenges the defendant's assertion that the parties
are not domiciled in the same state, "the party invoking diversity
jurisdiction

must

prove

domicile

7

by

a

preponderance

of

the

evidence." Garcia Perez v. Santaella, 364 F.3d 348, 350 (1st Cir.
2004) (emphasis added). Even more closely analogous are cases in
which a defendant seeks removal pursuant to the Class Action
Fairness Act of 2005 ("CAFA"), 28 U.S.C. §§1332(d), 1453. In such
cases, "the removing defendant must show a reasonable probability
that the amount in controversy exceeds $5 million." Amoche v. Guar.
Trust Life Ins. Co., 556 F.3d 41, 43 (1st Cir. 2009) (emphasis
added). "[T]he reasonable probability standard is . . . for all
practical purposes identical to the preponderance standard adopted
by several circuits." Id.

at 50. However, the First Circuit

concluded that "[t]he 'reasonable probability' language better
captures the preliminary nature of this inquiry, reserving the
preponderance of the evidence terminology for other conclusions."
Id. At least one other court in the First Circuit has recognized
that

Amoche's

holding

provides

support

for

adopting

the

preponderance standard for determining the amount in controversy
question in non-CAFA cases, as well. See JGCA Holding Corp. v.
McCarthy, C.A. No. 09-358-JD, 2010 WL 99089, at *1 (D.N.H. Jan. 6,
2010) (recognizing that Amoche's holding comports with the majority
approach and applying that standard in a non-CAFA case).
In this case, the court is employing the majority approach, in
light of the fact that it comports with analogous First Circuit law
and because the weight of authority within this Circuit and across
the nation supports it. Accordingly, Toglan's Motion must be

8

allowed unless the court concludes that Marriott has proven by a
preponderance of the evidence that the amount in controversy
exceeds $75,000.
C.

Calculating the Amount In Controversy

In calculating the amount in controversy, a federal court must
examine relevant state law to determine the nature and extent of
the damages which may be awarded. See Stewart v. Tupperware Corp.,
356 F.3d 335, 339 (1st Cir. 2004); Evans v. Yum Brands, Inc., 326
F. Supp. 2d 214, 220-21 (D.N.H. 2004). For example, "[w]hen a
plaintiff

makes

a

claim

under

a

statute

including

a

damage

multiplier, a court must apply that factor in evaluating the amount
in controversy." Evans, 326 F. Supp. 2d at 222 (citing cases). In
addition, a court must take into account attorneys' fees, where, as
here, the award of those fees is statutorily authorized. See
Spielman v. Genzyme Corp., 251 F.3d 1, 6 (1st Cir. 2001). In this
case, Toglan's claims are raised pursuant to Massachusetts General
Laws chapter 151B, which provides that, "[i]f the court finds for
the petitioner[,] it shall, in addition to any other relief and
irrespective of the amount in controversy, award the petitioner
reasonable attorney's fees and costs unless special circumstances
would render such an award unjust." Mass. Gen. Laws ch. 151B, §9.
III. ANALYSIS
As indicated earlier, Toglan's complaint makes no allegation
as to the specific amount of damages sought, stating only that

9

"[t]he amount in controversy exceeds $25,000." Am. Compl. at 1. The
question is whether that amount also exceeds $75,000. See 28 U.S.C.
§1332(a).
As explained previously, both counts in Toglan's complaint
assert violations of Massachusetts General Laws chapter 151B.
Toglan

contends

that

Marriott's

alleged

discrimination

and

retaliation were both "outrageous and beyond the pale of what our
society tolerates in the work place," and, in both counts, Toglan
"seeks damages for back pay, front pay, loss of benefits, emotional
distress and punitive damages . . . [as well as] attorney's fees
and costs and such other relief as this Court deems just and
equitable." Am. Compl. at 5-6. Accordingly, in calculating the
amount in controversy in this case, the court must take into
account these possible means of recovery. See Mass. Gen. Laws ch.
151B, §§5, 9; McCarthy v. Bank of New York/Mellon, C.A. No. 1010486-GAO,

2010

WL

2144241,

at

*1

(D.

Mass.

May

27,

2010)

(considering these means of recovery in determining whether a
successful claim was "likely [to] rise above the jurisdictional
threshold").
Marriott cites a number of chapter 151B cases in which
plaintiffs recovered more than $75,000. See, e.g., Cummings v.
Standard Register Co., 265 F.3d 56, 67 & n.9 (1st Cir. 2001)
(calculating $494,712 as the appropriate front pay award and noting
that $287,331.50 in attorneys' fees were awarded to plaintiff after

10

trial); Fryer v. A.S.A.P. Fire and Safety Corp., Inc., 680 F. Supp.
2d 317, 327-28 (D. Mass. 2010) (finding emotional distress damages
of $289,000 not to be excessive); McDonough v. City of Quincy, 353
F. Supp. 2d 179, 192 (D. Mass. 2005) (awarding successful plaintiff
in

chapter

151B

and

Title

VII

action

more

than

$90,000

in

attorneys' fees). However, the fact that damages of more than
$75,000 have been awarded in some chapter 151B cases is not
"evidence" at all, let alone sufficient proof that Toglan is likely
to be awarded more than $75,000 if he prevails in this case. Every
case is unique. There are chapter 151B cases in which a prevailing
plaintiff has been awarded less than $75,000, including attorneys'
fees. See, e.g., Joyce v. Town of Dennis, C.A. No. 08-10277-NMG,
2011

WL

2632148,

at

*6

(D.

Mass.

June

30,

2011)

(plaintiff

recovered $15,000 in damages, costs of $4,600, and attorneys' fees
of $30,000); Augis Corp. v. Mass. Comm'n Against Discrimination, 75
Mass. App. Ct. 398, 410 (Mass. App. Ct. 2009) (affirming award of
$10,000 in damages and $17,863 in fees and costs). The issue before
this court is whether Marriott has proven by a preponderance of the
evidence that the jurisdictional amount is satisfied in this
particular case.
In violation of the requirements of Rule 7.1(B)(2) of the
Local Rules of the United States District Court for the District of
Massachusetts, Marriott has not submitted "[a]ffidavits and other
documents setting forth or evidencing facts on which the opposition

11

[to the request to remand] is based." Marriott presumably has
evidence of what Toglan was earning when the Motion was filed and
what he would have been paid if he had been promoted. However,
neither this nor any other evidence necessary to calculate the
amount in controversy in this particular case has been submitted.
Therefore, in the absence of any true, case-specific evidence,
Marriott has failed to prove by a preponderance of the evidence
that Toglan has a reasonable probability of recovering more than
$75,000 if he prevails in this case. Accordingly, the Motion is
meritorious

and

this

case

is

being

remanded.

See

28

U.S.C.

§1447(c).
IV.

ORDER
In view of the foregoing, it is hereby ORDERED that Toglan's

Motion for Remand Under 28 U.S.C. §1447(c) (Docket No. 6) is
ALLOWED and this case is REMANDED to Suffolk Superior Court.

/s/ Mark L. Wolf
UNITED STATES DISTRICT JUDGE

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