Peabody v. Wal-Mart Stores, Inc. et al

Filing 9

ORDER granting 3 Motion to Remand to State Court. CASE REMANDED to Cheshire County County Superior Court. (Case Closed). So Ordered by Judge Steven J. McAuliffe.(vln)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Kaitlyn Peabody,
Plaintiff
v.

Case No. 12-cv-209-SM
Opinion No. 2012 DNH 181

Wal-Mart Stores, Inc.,
and George Savage,
Defendants
O R D E R
Plaintiff’s motion to remand (doc. no. 3) is granted.

Plaintiff objects to removal on the basis that the amount in
controversy does not exceed $75,000.

Her argument is probably

not supportable, but remand is warranted in any event.

Under the

removal statute, 28 U.S.C. § 1441(b)(2), “[a] civil action
otherwise removable solely on the basis of [diversity
jurisdiction], . . . may not be removed if any of the parties in
interest properly joined and served as defendants is a citizen of
the State in which such action is brought.”

Here, defendant

George Savage is a citizen of New Hampshire.

That defect is procedural in nature, and may, therefore, be
waived.

Samaan v. St. Joseph Hosp., 670 F.3d 21, 28 (1st Cir.

2012) (citing 28 U.S.C. § 1447(c)).

A plaintiff waives the

Section 1442(b)(2) requirement where she “proceed[s] in federal

court without objection.”

Stromberg v. Costello, 456 F. Supp.

848, 849 (D. Mass. 1978).

Here, although the plaintiff advances

an argument in support of remand that misses the mark, there is
no question that she is objecting to removal and is not
voluntarily proceeding in this federal forum.

Compare Samaan,

670 F.3d at 28 (finding waiver where plaintiff, in addition to
“not rais[ing] the defendants’ Maine citizenship in support of
his motion to remand,” also “litigated the case for years”).

Accordingly, the court finds that removal was defective and
plaintiff has not waived the defect.

Her motion to remand (doc.

no. 3) is granted.

SO ORDERED.
____________________________
Steven J. McAuliffe
United States District Judge
October 16, 2012
cc:

Richard E. Fradette, Esq.
Christopher B. Kaczmarek, Esq.

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