Case 1:17-cv-00499-AJ Document 12 Filed 04/11/18 Page 1 of 7
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF NEW HAMPSHIRE
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`
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`Lorraine MacDonald et al.
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`v.
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`
`
`
`Jacobs’ Family Trust
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`Case No. 17-cv-499-AJ
`Opinion No. 2018 DNH 077
`
`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. Doc. no. 4. The Trust objects. Doc.
`no. 6. 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
`
`
`
`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF NEW HAMPSHIRE
`
`
`
`Lorraine MacDonald et al.
`
`
`v.
`
`
`
`
`
`
`
`
`
`
`Jacobs’ Family Trust
`
`
`
`
`
`
`
`
`
`
`Case No. 17-cv-499-AJ
`Opinion No. 2018 DNH 077
`
`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. Doc. no. 4. The Trust objects. Doc.
`no. 6. 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
`
`
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`Case 1:17-cv-00499-AJ Document 12 Filed 04/11/18 Page 2 of 7
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`plaintiffs effected service of process on the Trust. See doc.
`no. 4-2 at 1-2. 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. On October 16, 2017, the Trust removed the
`case to this court. 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
`
`
`2
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`
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`Case 1:17-cv-00499-AJ Document 12 Filed 04/11/18 Page 3 of 7
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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 . . . .” Id. (quoting 28
`U.S.C. § 1446(b)(1)). 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. See 28
`U.S.C. § 1332(a). 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.
`
`
`
`3
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`Case 1:17-cv-00499-AJ Document 12 Filed 04/11/18 Page 4 of 7
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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.” Id.
`
`The court turns first to the complaint. 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
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`Case 1:17-cv-00499-AJ Document 12 Filed 04/11/18 Page 5 of 7
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`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. The court has little trouble
`concluding that it did. 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. See
`Romulus, 770 F.3d at 72. 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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`5
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`Case 1:17-cv-00499-AJ Document 12 Filed 04/11/18 Page 6 of 7
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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. Romulus, 770 F.3d at 80
`(citation omitted). The First Circuit has stressed, however,
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`6
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`Case 1:17-cv-00499-AJ Document 12 Filed 04/11/18 Page 7 of 7
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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.
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`______________________________
`Andrea K. Johnstone
`United States Magistrate Judge
`
`
`April 11, 2018
`
`cc: Joseph S. Hoppock, Esq.
`
`Christopher T. Hilson, Esq.
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`
`7
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