MacDonald et al v. Jacobs

Filing 12

ORDER denying 4 plaintiffs' motion to remand. So Ordered by Magistrate Judge Andrea K. Johnstone.(lat)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Lorraine MacDonald et al.
v.

Case No. 17-cv-499-AJ
Opinion No. 2018 DNH 077

Jacobs’ Family Trust

O R D E R
Plaintiffs Lorraine and Peter MacDonald bring this action
against the Jacobs’ Family Trust through its trustee, Arthur
Jacobs, alleging two counts of negligence and one count of
intentional infliction of emotional distress.

The plaintiffs

contend that Arthur Jacobs’s sister, Lisa Jacobs, harassed and
threatened the plaintiffs and made false reports against them
while residing with the Trust’s permission at a property the
Trust owned that abutted the plaintiffs’ property.

Originally

filed in state court, the Trust removed the matter to this court
based on diversity jurisdiction.

See doc. no. 1.

The

plaintiffs move to remand the case to state court, arguing that
the removal was untimely.
no. 6.

Doc. no. 4.

The Trust objects.

Doc.

For the reasons that follow, the motion to remand is

denied.

Background
The plaintiffs first filed this action in state court on
January 26, 2017.

See doc. no. 1-1 at 5.

On June 6, 2017, the

plaintiffs effected service of process on the Trust.
no. 4-2 at 1-2.

See doc.

The plaintiffs concede that this service did

not comply with New Hampshire law.

See doc. no. 4-1 ¶ 2.

The

Trust moved to dismiss the action for, among other things, lack
of personal jurisdiction.

See doc. no. 1-5 at 3-30.

On

September 12, 2017, the state court denied that motion on
personal jurisdiction grounds, but directed the plaintiffs to
effect proper service within 60 days.

See doc. no. 1-7 at 20.

The plaintiffs properly served the Trust on September 14,
2017.

See doc. no. 1-4.

On September 22, 2017, the plaintiffs

received a $160,000 jury verdict against Lisa Jacobs in a
separate action.

Doc. no. 6-2 at 2-3.

On that same day,

plaintiffs’ counsel emailed counsel for the Trust and indicated
that this award would “constitute an element of damages in
connection” with this case.

Id. at 1.

Plaintiffs’ counsel

referenced the jury verdict form, which he attached to the
email.

Id. at 2-3.

case to this court.

On October 16, 2017, the Trust removed the
Doc. no. 1.

Discussion
The procedure for removing civil actions is governed by 28
U.S.C. § 1446.

Section 1446(b) sets forth two thirty-day

windows for removal.

See Romulus v. CVS Pharmacy, Inc., 770

F.3d 67, 73 (1st Cir. 2014).

Section 1446(b)(1) generally

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requires that removal occur “within 30 days after the receipt by
the defendant, through service or otherwise, of a copy of the
initial pleading setting forth the claim for relief upon which
such action or proceeding is based . . . .”
U.S.C. § 1446(b)(1)).

Id. (quoting 28

But if that pleading does not state a

removable case, § 1446(b)(3) allows for removal “within 30 days
after receipt by the defendant, through service or otherwise, of
a copy of an amended pleading, motion, order or other paper from
which it may first be ascertained that the case is one which is
or has become removable.”

Id. (quoting 28 U.S.C. § 1446(b)(3)).

The removing defendant has the burden of showing that removal is
proper.

Fayard v. Ne. Vehicle Servs., LLC, 533 F.3d 42, 48 (1st

Cir. 2008).
As the Trust solely invokes this court’s diversity
jurisdiction, and there is no dispute the parties reside in
different states, the removability of this action depends on
whether the amount in controversy exceeds $75,000.
U.S.C. § 1332(a).

See 28

The plaintiffs contend that this was

ascertainable from the complaint, 1 and that the Trust therefore
should have removed this matter no later than thirty days after

1

Though the plaintiffs do not explicitly raise this contention,
it is implied in their more general argument that the Trust “had
sufficient information to ascertain the action was removable”
once it received the complaint. Doc. no. 4-1 ¶ 11.

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it received the complaint. 2

The Trust counters that it could not

ascertain that this matter was removable until it received the
September 22, 2017 email indicating that the plaintiffs would
seek to recover the $160,000 verdict against Lisa Jacobs as part
of this lawsuit.

Only then, according to the Trust, was it

clear that there was a sufficient amount in controversy for this
matter to fall within this court’s diversity jurisdiction.
“[A] plaintiff’s pleading or later paper will trigger the
deadlines in Section 1446(b) if [it] includes a clear statement
of the damages sought or . . . sets forth sufficient facts from
which the amount in controversy can easily be ascertained by the
defendant by simple calculation.”

Romulus, 770 F.3d at 75.

“The defendant has no duty, however, to investigate or to supply
facts outside of those provided by the plaintiff.”
The court turns first to the complaint.

Id.

This pleading

plainly does not include a clear statement of the damages
sought.

The court therefore must determine whether it sets

forth sufficient facts from which the Trust could have easily
ascertained the amount in controversy by simple calculation.

2

The plaintiffs alternatively argue that this occurred on June
6, 2017, when they initially, but improperly, served the Trust,
on September 12, 2017, when the state court denied the Trust’s
motion to dismiss and directed service, or on September 14,
2017, when they properly served process. As there is no dispute
that the Trust did not file its notice of removal within thirty
days of any of these dates, the court need not determine which
date is operative.
4

The court concludes that it does not.

Though the complaint

makes certain references to damages, see doc. no. 1-1 ¶¶ 1, 29,
31, 33, and at one point states that the plaintiffs are entitled
to a “substantial monetary reward,” see id. ¶ 31, there is no
indication that the plaintiffs seek to recover an amount
exceeding $75,000 as part of this action. 3

Thus, there was no

way for the Trust to ascertain from the complaint that this case
was removable.

Receipt of the complaint accordingly did not

trigger the 30-day period under § 1446(b).
The September 22, 2017 email is the only other document
that could have indicated to the Trust that this case met the
court’s jurisdictional threshold.

The court must therefore

determine whether that email provided sufficient basis for the
Trust to remove this action.
concluding that it did.

The court has little trouble

The First Circuit has previously held

that an email sent by a plaintiff constitutes the type of “other
paper” that can trigger § 1446(b)(3)’s thirty-day deadline.
Romulus, 770 F.3d at 72.

See

The September 22, 2017 email

specifically indicated that the plaintiffs would seek to recover

3

Indeed, the only discussion of the amount in controversy in the
complaint is several references to the New Hampshire superior
court’s jurisdictional limits and minimums. See doc. no. 1-1 ¶¶
39, 31, 33. These references do not put the action within the
jurisdictional limits of this court, however, because the
superior court has a significantly lower threshold for both
concurrent jurisdiction ($1,500) and exclusive jurisdiction
($25,000). See N.H. Rev. Stat. Ann §§ 491:7; 502-A:14.
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the jury verdict they received in their action against Lisa
Jacobs as part of this action.

Doc. no. 6-2 at 1.

And the jury

verdict form, referenced in and attached to the email, indicated
that the verdict totaled $160,000.

Id. at 2-3.

Based on this

information, the Trust could easily ascertain that the amount in
controversy exceeded $75,000.

The September 22, 2017 email

therefore triggered the thirty-day period under § 1446(b)(3).
As the Trust filed its removal within thirty days of that email,
see doc. no. 1-1, removal was timely.
Though the parties only address timeliness in their papers,
the court has an independent obligation to ensure there is a
substantive basis for federal jurisdiction.

See Henderson ex

rel. Henderson v. Shinseki, 562 U.S. 428, 434 (2011).

While in

some cases this requires a separate analysis of whether the
amount actually in controversy meets the jurisdictional
threshold, see, e.g., Romulus, 770 F.3d 80-81; Thomas v. Adecco
USA, Inc., No. 1:13-cv-00070-JAW, 2013 WL 6119073, at *4-7 (D.
Me. Nov. 21, 2013), in this case this analysis is coextensive
with the above determination with respect to timeliness.

Though

the First Circuit has never addressed the specific circumstances
at issue in this case, it has held in a similar context that a
removing defendant “must show a ‘reasonable probability’” that
the amount in controversy is met.
(citation omitted).

Romulus, 770 F.3d at 80

The First Circuit has stressed, however,

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that “the pertinent question is what is in controversy in the
case, not how much the plaintiffs are ultimately likely to
recover.”

Id. (emphasis in original) (citations omitted).

Here, the September 22, 2017 email plainly establishes that the
amount in controversy exceeds $75,000.

As there is no dispute

that the parties are diverse, there is a substantive basis for
diversity jurisdiction over this action.

See 28 U.S.C. §

1332(a).

Conclusion
In sum, the court concludes that the Trust timely removed
this action and that it falls within the court’s diversity
jurisdiction.

The plaintiffs’ motion to remand (doc. no. 4) is

accordingly denied.
SO ORDERED.
______________________________
Andrea K. Johnstone
United States Magistrate Judge
April 11, 2018
cc:

Joseph S. Hoppock, Esq.
Christopher T. Hilson, Esq.

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