Dowgiert v. Above Service Company, Inc. et al

Filing 36

PROCEDURAL ORDER re subject-matter jurisdiction. DCS defendants shall show cause on or before March 11, 2013 as outlined. Dowgiert and the other parties may respond as outlined by March 18, 2013. So Ordered by Chief Judge Joseph N. Laplante.(jb)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Eugene Dowgiert
v.

Civil No. 11-cv-416-JL

Robert Hagopian et al.
PROCEDURAL ORDER
Eugene Dowgiert commenced this action in Rockingham County
Superior Court in July 2011, bringing state-law claims of
negligence and strict products liability arising out of burns he
suffered when a gas grill allegedly caught fire.

As defendants,

Dowgiert has named:
•

Several corporations that allegedly manufactured the
grill, Dynamic Cooking Systems, Inc., Fisher & Paykel
Appliances, Inc., Fisher & Paykel Appliances, and USA
Holdings, Inc. (collectively, the “DCS defendants”);

•

Two corporations that allegedly manufactured the
regulator on the grill, Grand Hall USA, Inc. and Grand
Hall Enterprises Co., Ltd. (collectively, the “Grand
Hall defendants”); and

•

Above Service Company and its principal, Robert
Hagopian, who allegedly serviced the grill at some
point prior to the fire.

The DCS defendants removed the action to this court,
invoking its diversity jurisdiction.

See 28 U.S.C. § 1332(a)(1).

According to the notice of removal, Dowgiert is a citizen of New
Hampshire, Hagopian is a citizen of North Carolina, and the DCS
defendants and the Grand Hall defendants are all foreign
corporations with their principal places of business outside of

New Hampshire.

The notice also states that Above Service Company

“was a New Hampshire corporation that was administratively
dissolved by the Secretary of State on September 1, 2006.”
The notice of removal does not explain, however, the
significance of Above Service’s dissolution to the existence of
diversity jurisdiction here.

While the case law on this point is

not uniform, and neither the Court of Appeals nor this court has
previously addressed the question, there is a general consensus
that “state law governs the extent, nature, and period of
liability for dissolved corporations, and hence whether they are
deemed to exist for diversity jurisdiction purposes.”

13F

Charles Alan Wright et al., Federal Practice & Procedure § 3623,
at 32 (3d ed. 2009) (citing Ripalda v. Am. Operations Corp., 977
F.2d 1464 (D.C. Cir. 1992)).

Under New Hampshire law, “[a]

corporation administratively dissolved continues its corporate
existence,” albeit with limitations on its activities.

N.H. Rev.

Stat. Ann. § 293-A:14.21(b); see also Embassy Software Corp. v.
eCopy, Inc., 592 F. Supp. 2d 225, 230 (D.N.H. 2009).
If this view of the law is correct, then there is no
diversity jurisdiction here, because Above Service still exists
under New Hampshire law, meaning its citizenship counts--and its
citizenship is the same as that of the plaintiff.

Accordingly,

the DCS defendants (who, having removed the case to this court,
2

bear the burden of showing its jurisdiction, see, e.g., Pruell v.
Caritas Christi, 645 F.3d 81, 84 (1st Cir. 2011)), shall show
cause on or before March 11, 2013, why this case should not be
remanded to Rockingham County Superior Court for lack of subjectmatter jurisdiction.

The showing shall take the form of a filing

not to exceed 10 pages.

Dowgiert and the other parties may, but

need not, file a response, also not to exceed 10 pages, by March
18, 2013.

SO ORDERED.

____________________________
Joseph N. Laplante
United States District Judge
Dated:
cc:

February 28, 2013

Michael J. Iacopino, Esq.
Robert Hagopian, pro se
William A. Staar, Esq.
Ralph Suozzo, Esq.
Kenneth B. McKenzie, Esq.
Richard A. Ergo, Esq.
R. Matthew Cairns, Esq.

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