Andrews v. Earl's Restaurants USA Inc. et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Stephen Andrews
v. 	Case No. 19-cv-817-PB
Opinion No. 2019 DNH 204
Earl’s Restaurants USA Inc. and
Earl’s Restaurants Ltd.
ORDER
Pro se plaintiff Stephen Andrews (“Plaintiff” or “Andrews)
initiated a civil suit against Earl’s Restaurants USA Inc. and
Earl’s Restaurants Ltd. (collectively “Defendants” or “Earl’s
Restaurants”) in Rockingham County Superior Court on July 2,
2019. On August 6, 2019, Earl’s Restaurants removed the action
to federal court, invoking this court’s jurisdiction pursuant to
28 U.S.C. § 1332 and § 1441 on the basis that there is complete
diversity of citizenship between the parties and the amount of
controversy exceeds $75,000.
As courts of limited jurisdiction, federal courts have a
duty to inquire sua sponte into the existence of their own
subject-matter jurisdiction. McCulloch v. Velez, 364 F.3d 1, 5
(1st Cir. 2004). The parties have clearly established that
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diversity of citizenship exists,1 leaving only the amount in
controversy in question.
Generally, “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)(2). If the complaint does not provide for
such a sum, then “the notice of removal may assert the amount in
controversy . . . .” Id. § 1446(c)(2)(A); accord Forrence v.
Koch, 18-cv-134-LM, 2018 WL 3360760, at *3 (D.N.H. July 9,
2018). Nonetheless, “a removing defendant’s simple say-so will
not suffice to demonstrate that a case meets the jurisdictional
threshold.” Evans v. Yum Brands, Inc., 326 F. Supp. 2d 214, 220
(D.N.H. 2004); accord McNutt v. Gen. Motors Acceptance Corp. of
Ind., 298 U.S. 178, 189 (1936) (“If [a defendant’s] allegations
of jurisdictional facts are challenged by his adversary in any
appropriate manner, he must support them by competent proof. And
where they are not so challenged the court may still insist that
the jurisdictional facts be established or the case be
dismissed.”).
When “the court questions . . . the defendant’s
allegation,” Dart Cherokee Basin Operating Co., LLC v. Owens,
574 U.S. 81, 89 (2014), then “both sides submit proof and the
1 Andrews is a citizen of New Hampshire. Notice of Removal, Doc.
No. 1 at 1 ¶ 3. Earl’s Restaurants USA Inc. is a citizen of
Nevada and Canada. Doc. No. 1 at 2 ¶ 4. Earl’s Restaurants Ltd.
is a citizen of Canada. Doc. No. 1 at 2 ¶ 5.
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court decides, by a preponderance of the evidence, whether the
amount-in-controversy requirement has been satisfied,” id. at
88; see 28 U.S.C. § 1444(c)(2)(B). To that end, the parties may
“submit summary-judgment-type evidence, relevant to the amount
in controversy at the time of removal.” Evans, 326 F. Supp. 2d
at 220 (quoting Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1336
(5th Cir. 1995)).
“Consistent with New Hampshire practice, no specific amount
of damages is claimed in the complaint,” Forrence, 2018 WL
3360760, at *3 n.2 (citing N.H. Rev. Stat. Ann. § 508:4-c),
initially filed by Andrews in state court.2 Asserting that
removal is valid under this court’s diversity jurisdiction,
Earl’s Restaurants has alleged only that “the matter in
controversy exceeds the sum or the value of $75,000.00,
exclusive of interest and costs, and is between citizens of
different states.” Notice of Removal, Doc. No. 1 at 1 ¶2. This
“simple say-so” does not suffice to establish the amount in
2 Andrews’s service document states, “Claim: $400,000,” Doc. No.
1-1, but it is not clear that this perfunctory statement
satisfies the removal procedure outlined in 28 U.S.C. §
1446(c)(2). Regardless, because Earl’s Restaurants gave equally
fleeting attention to the basis for the amount in controversy in
the notice of removal, I am obligated to inquire sua sponte
whether I may exercise diversity jurisdiction over this case,
which triggers the evidentiary requirement in 28 U.S.C. §
1446(c)(2)(B).
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controversy required upon removal to this court. See Evans, 326
F. Supp. 2d at 220.
Accordingly, defendants shall have fourteen (14) days to
file a memorandum with any supporting materials demonstrating
that this court has subject matter jurisdiction. Plaintiff shall
have seven (7) days to respond to defendants’ memorandum. If the
defendants fail to file this memorandum, I will determine the
existence of subject matter jurisdiction on the parties’ current
filings.
SO ORDERED.
/s/ Paul J. Barbadoro
Paul J. Barbadoro
United States District Judge
December 3, 2019
cc: 	Stephen Andrews, pro se
Michael D. Ramsdell, Esq.
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