Chase v. Corning, Inc.
Filing
11
///ORDER granting 5 Motion to Remand; case remanded to state court pursuant to Section 1447(c). So Ordered by Judge Joseph A. DiClerico, Jr.(dae)
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Debra Chase
v.
Civil No. 14-cv-392-JD
Opinion No. 2014 DNH 229
Corning, Inc.
O R D E R
Debra Chase brought suit in state court alleging that her
former employer, Corning, Inc., discriminated against her in
violation of RSA 354-A, retaliated against her, and wrongfully
terminated her employment.
Corning removed the case to this
court, asserting diversity jurisdiction under 28 U.S.C. § 1332.
Chase moves to remand the case to state court on the ground that
the amount in controversy does not exceed the jurisdictional
amount.
Corning objects.
Standard of Review
A removed case must be remanded to state court if the
district court lacks subject matter jurisdiction.
§ 1447(c).
28 U.S.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).
“If 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 state court pleading seeks a money judgment but the
state practice does not permit a demand for damages, “the notice
of removal may assert the amount in controversy.”1
§ 1446(c)(2)(A).
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).
Discussion
Chase moves to remand the case, arguing that the amount in
controversy does not exceed $75,000.
She contends that although
she seeks back pay, front pay, compensatory damages, enhanced
compensatory damages, punitive damages, and attorneys’ fees, the
amount in controversy does not exceed $75,000 because she was
seriously injured in a car accident and her resulting inability
to work eliminates her claim for front pay and severely restricts
her claim for back pay.
In response, Corning contends that Chase
1
Corning mistakenly argues that the amount in controversy is
apparent on the face of the complaint. Consistent with New
Hampshire practice, no specific amount of damages is claimed in
the complaint. See RSA 508:4-c; Evans v. Yum Brands, Inc., 326
F. Supp. 2d 214, 218 n.3 (D.N.H. 2004).
2
only attempted to restrict her damages after the case was
removed, challenges her evidence, and argues that her claims for
compensatory, enhanced, and punitive damages would meet the
jurisdictional amount without considering whether her front and
back pay claims are diminished.
Chase provides opinion evidence that her injuries in the
accident will likely prevent her from working.
Corning argues
that Chase improperly presented evidence of her inability to
work.
Corning also contends that the evidence Chase offers
cannot be considered because it does not pertain to the
appropriate time and does not meet the summary judgment standard.
Corning provides evidence of Chase’s wages and benefits through
the affidavit of Kristin Kowaliw, Human Resource Manager at
Corning’s Keene facility where Chase worked.
A.
Materials to Be Considered
Corning challenges the evidence Chase submitted in support
of her motion to remand, which consists of two expert opinion
reports.
One is a psychological report prepared by Eric G. Mart,
Ph.D., ABPP, and the other is a vocational assessment prepared by
James T. Parker, CVRP, CRC.
The psychological report is dated
September 2, 2014, with an addendum dated September 19, 2014, and
the vocational assessment is dated September 22, 2014.
Both
reports address Chase’s abilities and deficits after her
accident.
The psychological report identifies significant
3
symptoms and difficulties related to her injuries from the
accident, and the vocational assessment concluded that Chase is
totally disabled from competitive employment and is likely to
remain disabled from work.
1.
Who May Submit Evidence
Corning asserts that only the defendant, who bears the
burden of proof on the jurisdictional issue, may provide evidence
to the court.
While the cases Corning cites discuss the evidence
submitted by the defendants, that is to be expected when the
court is assessing whether the defendant met its burden.
Contrary to Corning’s theory, the First Circuit directs that
“deciding whether a defendant has shown a reasonable probability
that the amount in controversy exceeds [the jurisdictional
amount] may well require analysis of what both parties have
shown.”
Amoche v. Guarantee Tr. Life Ins. Co., 556 F.3d 41, 51
(1st Cir. 2009); see also Hogan v. Wal-Mart Stores East, L.P.,
2014 WL 66658, at *3 (D.R.I. Jan. 8, 2014) (explaining that
plaintiff may overcome defendant’s showing on the amount of
damages by establishing to a legal certainty that the amount is
less than $75,000).
Therefore, the court may consider evidence
provided by both Corning and Chase.
4
2.
Timing
Corning argues that the opinion evidence Chase submitted
does not pertain to the pertinent time for assessing whether the
amount in controversy exceeds $75,000.
In support, Corning
argues both that the amount in controversy is determined as of
the time the complaint was filed and that the amount is
determined as of the time of removal.
In the context of a motion
to remand, the amount in controversy is determined as of the date
of removal.
Amoche, 556 F.3d at 51.
Noting the removal date of September 10, 2014, Corning
contends that the opinion evidence is not relevant to the amount
in controversy because one of the reports submitted by Chase is
dated September 22, 2014.
The reports assess Chase’s symptoms,
deficits, and abilities in light of her injuries caused by the
accident in January of 2014.
Both reports pertain to Chase’s
ability to work at the time of removal, and the reports also
offer prognoses about Chase’s ability to work in the future.
Corning has not shown that the reports are not relevant to
Chase’s ability to work at the time of removal.
3.
Competent Evidence
For purposes of determining the amount in controversy,
courts may consider extrinsic evidence when the complaint does
not include allegations of specific damages.
Huston v. FLS
Language Ctrs., --- F. Supp. 2d ---, 2014 WL 757681, at *4 (D.
5
Mass. Feb. 21, 2014).
Summary judgment-type evidence is
competent to show facts pertaining to the amount in controversy.
Sanders v. Luminescent Sys., Inc., 2014 WL 2815810, at *1 (D.N.H.
June 23, 2014); Messier v. Ace Am. Ins. Co., 2013 WL 5423716, at
*3 (D.R.I. Sept. 26, 2013); Composite Co., Inc. v. Am. Int’l
Grp., Inc., 988 F. Supp. 2d 61, 74 (D. Mass. 2013).
Corning challenges Chase’s expert reports on the grounds
that the reports are hearsay.
To preclude consideration of
evidence submitted for or against summary judgment, the objecting
party must show that the evidence “cannot be presented in a form
that would be admissible in evidence.”
(emphasis added).
Fed. R. Civ. P. 56(c)(2)
Because experts could appear at trial and
testify to opinions, which then would not be hearsay, an expert
report submitted for purposes of summary judgment could meet the
requirements of Rule 56(c).
See Jeffers v. Farm Bureau Prop. &
Cas. Ins. Co., 2014 WL 4259485, at *3 (D. Ariz. Aug. 28, 2014);
Greater St. Louis Constr. Laborers Welfare Fund v. Symmetry
Landscaping, Inc., 2012 WL 113535, at *6 (E.D. Mo. Jan. 13,
2012); Crouch v. Teledyne Cont’l Motors, Inc., 2011 WL 1539854,
at *1, n.3 (S.D. Ala. Apr. 21, 2011).
Therefore, Corning has not
shown that the reports are inadmissible hearsay under the summary
judgment standard.
Corning also contends that the reports Chase offers cannot
be considered because they are not authenticated and because the
experts have not been qualified.
Corning cites no case, rule, or
6
other authority to support its theory that the reports must be
authenticated and the experts must be qualified before the
opinions may be considered.
An opposing party may challenge an expert’s opinion offered
to support or oppose summary judgment on the ground that the
opinion does not meet the requirements of Federal Rule of
Evidence 702.
See, e.g., Kumho Tire Co., Ltd. v. Carmichael, 526
U.S. 137, 146-48 (1999).
Corning, however, has not challenged
the reports on those grounds.
Further, the jurisdictional
assessment done for purposes of a motion to remand is to proceed
expeditiously without extensive fact finding.
Huston, --- F.
Supp. 2d at ---, 2014 WL 757681, at *2-*3 (D. Mass. Feb. 21,
2014) (citing Reynolds v. World Courier Ground, Inc., 272 F.R.D.
284, 286 (D. Mass. 2011)).
Corning has not shown that the expert opinion reports
submitted by Chase cannot be considered for purposes of the
motion to remand.
5.
Corning’s Evidence
Chase does not object to the evidence Corning submitted to
show Chase’s earnings and benefits.
In her affidavit, Kowaliw
states that, while she was employed at Corning, Chase earned
$17.97 per hour as a Machinist II employee.
Based on an average
of forty hours, Chase earned approximately $718.80 per week and
$37,378.00 per year.
Chase also participated in Corning’s health
7
and disability plans which had a value of $11,856.00 in 2013.
Chase’s last day of work was November 21, 2013.
B.
Damages
Chase represents that her injuries from the accident are
debilitating and provides the two expert opinion reports which
she interprets to mean that she is not likely to be able to work
again.
As a result, Chase asserts, her claim for back pay is
reduced to the two month period between November 21, 2013, and
January 28, 2014, and her claim for front pay is eliminated by
her inability to work.
Based on those limitations, Chase’s claim
for back pay, including benefits, would be under $10,000.
In addition, however, Chase seeks compensatory, enhanced,
and punitive damages and attorneys’ fees and costs.2
Chase
contends that those damages will be restricted because of the low
amount of back pay at issue in the case.
Corning presents
evidence from awards in three other cases in New Hampshire to
show that compensatory, enhanced, and punitive damages awards can
far exceed the amount of lost pay.
2
As long as the claims are “colorable”, they may be
considered for purposes of determining the jurisdictional amount.
Evans, 326 F. Supp. 2d at 221. The court notes, however, that
there appears to be no colorable basis for punitive damages as
relief under Chase’s state law claims. See RSA 507:16; State v.
Hynes, 159 N.H. 187, 198 (2009); Stewart v. Bader, 154 N.H. 75,
88 (2006).
8
In Miller v. Colonial Vill. Pharmacy, No. C93-326-L, 1994
Nat. Jury Verdict Review LEXIS 821, the plaintiff brought a claim
under Title VII of the Civil Rights Act of 1964 for sexual
harassment and state law claims of constructive discharge and
negligent infliction of emotional distress.
A jury returned a
verdict of $110,000, which included $15,000 in lost wages for all
three claims, $10,000 in enhanced compensatory damages on the
constructive discharge claim, $2,500 in compensatory damages and
$22,500 in enhanced compensatory damages on the emotional
distress claim, and $60,000 in punitive damages on the Title VII
claim.
In this case, Chase brings only state law claims, not a
claim under Title VII which provides for punitive damages.
Using
the verdict in Miller as a template, Chase’s damages might total
as much as $50,000, but that amount is far below the
jurisdictional requirement of $75,000.
The second example Corning provides is cited only as “2005
N.H. Jury Verdicts Review LEXIS 31 (November 2005)” without a
case name or docket number.
That case could not be found with
the information Corning provided.
As represented by Corning,
however, that case involved violations of the Family and Medical
Leave Act, along with claims for disability discrimination and
wrongful termination.
The verdict of $480,000 included $55,000
in lost wages and benefits and $425,000 in compensatory and
enhanced compensatory damages.
Without additional detail, the
9
case does not appear to be sufficiently similar to Chase’s case
to provide guidance as to the amount in controversy here.
Corning also cites Snelling v. City of Claremont, 931 A.2d
1272, 1289 (N.H. 2007).
In Snelling, the plaintiff brought a
state law claim for wrongful termination and a claim under 42
U.S.C. § 1983 for violation of his First Amendment rights.
at 1277.
Id.
The jury awarded the plaintiff $151,000 in past wages
and benefits, $50,000 for emotional distress, $151,000 in
enhanced compensatory damages, and $3,780 in punitive damages.
Id.
Corning has not shown how the claims and amounts involved in
Snelling indicate the likely amount in controversy here.
Corning has not shown by a preponderance of the evidence
that the amount in controversy in this case exceeds the
jurisdictional amount.
C.
Stipulation
A plaintiff may avoid federal jurisdiction by a legally
binding stipulation that the amount of her damages is
unequivocally below the jurisdictional amount.
See Standard Fire
Ins. Co. v. Knowles, 133 S. Ct. 1345, 1350 (2013); Raymond v.
Lane Constr. Corp., 527 F. Supp. 156, 157 (D. Me. 2007).
Counsel
for Corning represents that she “indicated to [Chase’s counsel]
that if he stipulated that Plaintiff’s total recovery would not
exceed $75,000, Corning would assent to the forthcoming Motion to
Remand” but Chase’s counsel “failed to so stipulate and instead
10
filed the instant Motion to remand.”
Because the burden is on
the defendant to show the jurisdictional amount by a
preponderance of the evidence, the plaintiff is not required to
enter a stipulation to limit her damages for purposes of
supporting her motion to remand.
See Williams v. Best Buy Co.,
Inc., 269 F.3d 1316, 1320 (11th Cir. 2001); see also Lottinger v.
State Farm Fire & Cas. Co., 2014 WL 4403440, at *2 (E.D. La.
Sept. 5, 2014) (explaining that in the Fifth Circuit if a
defendant meets the jurisdictional burden a plaintiff can still
avoid federal jurisdiction by stipulation and waiver); Elliott v.
Tractor Supply Co., 2014 WL 4187691, at *3 (N.D. W.Va. Aug. 21,
2014) (noting that plaintiffs are not required to provide proof
of the jurisdictional amount “or provide any type of stipulation
stating they are seeking less than $75,000 in damages”).
Conclusion
For the foregoing reasons, the plaintiff’s motion to remand
(document no. 5) is granted.
The case is remanded to state court
pursuant to § 1447(c).
SO ORDERED.
____________________________
Joseph A. DiClerico, Jr.
United States District Judge
October 30, 2014
cc:
Stacie Boeniger Collier, Esq.
John P. Sherman, Esq.
11
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?