Denise Louise Sanders v. Luminescent Systems, Inc., et al.

2014 DNH 141

• Court: District Court, D. New Hampshire
• Decided: September 12, 2012
• Docket: 14-cv-188-PB
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Denise Louise Sanders

v. Case No. 14-cv-188-PB Opinion No. 2014 DNH 141

Luminescent Systems, Inc., et al.

O R D E R

On March 14, 2014, Denise Louise Sanders sued Luminescent

Systems, Inc. and Tony LaFromboise in New Hampshire Superior

Court for wrongful termination, retaliation, sex discrimination,

and defamation. She has based all of her claims exclusively on

state law. On May 1, defendants removed the suit to this court.

Sanders moves to remand, contending that this court lacks

jurisdiction because (1) there is not complete diversity of

citizenship between the parties; and (2) the amount in

controversy does not exceed $75,000. See 28 U.S.C. § 1332(a).

I. DIVERSITY OF CITIZENSHIP

For diversity purposes, citizenship is equated with

domicile, which can be “established by demonstrating that the

individual is physically present in the state and has an intent

to remain indefinitely.” Garcia Perez v. Santaella, 364 F.3d 348, 350 (1st Cir. 2004). Such intent may be proven by evidence

of where an individual “exercises civil and political rights,

pays taxes, has real and personal property, has a driver’s or

other license, has bank accounts, has a job or owns a business,

attends church, and has club memberships.” Rodríguez v. Señor

Frog’s de la Isla, Inc., 642 F.3d 28, 33 (1st Cir. 2011) (citing

Bank One, Tex., N.A. v. Montle, 964 F.2d 48, 50 (1st Cir.

1992)). No single consideration is dispositive, and “the

analysis focuses not simply on the number of contacts with the

purported domicile, but also on their substantive nature.”

Garcia Perez, 364 F.3d at 351. The party invoking diversity

jurisdiction must prove domicile by a preponderance of the

evidence, id. at 350, either by alleging sufficient facts in the

notice of removal, by submitting additional materials of

evidentiary quality, or by referencing the complaint. Valentin

v. Hosp. Bella Vista, 254 F.3d 358, 363 (1st Cir. 2001).

Sanders contends that LaFromboise’s assertion that he is

“residing” in Vermont is insufficient to establish his

citizenship there. She states, without support, that

LaFromboise resided in Lebanon, New Hampshire while she was

employed by Luminescent Systems.1 In contrast, the defendants

1 Sanders does not allege where LaFromboise was residing at the time suit was filed, which is the only relevant inquiry. See 2 have submitted a sworn statement from LaFromboise that he has

lived in Vermont since at least 1988, has raised his family

there, and has no intention of relocating to another state.

Doc. No. 6-2. They have submitted evidence that he owns a home

and pays property taxes in Vermont, that his car is registered

in Vermont, and that he possesses a Vermont driver’s license.

Id. Notwithstanding Sanders conclusory assertion to the

contrary, the defendants have presented sufficient evidence to

establish that LaFromboise is a citizen of Vermont.

II. AMOUNT IN CONTROVERSY

A defendant seeking removal must prove the amount in

controversy by a preponderance of the evidence. Amoche v. Guar.

Trust Life Ins. Co., 556 F.3d 41, 50 (1st Cir. 2009).

When the amount in controversy is disputed, courts require more

than a bare allegation such as that included in defendants’

notice of removal. Doc. No. 1. “However, in this Circuit, a

removal defendant can meet its burden by going outside the four

corners of the notice of removal.” Mut. Real Estate Holdings,

LLC v. Houston Cas. Co., No. 10-cv-236-LM, 2010 WL 3608043, at

*4 (D.N.H. Sep. 13, 2010). A removal defendant can meet its

burden by “alleging sufficient facts in its notice of removal,

Hall v. Curran, 599 F.3d 70, 72 (1st Cir. 2010). 3 relying on the face of the complaint in the underlying case, or

. . . submit[ting] ‘summary-judgment-type’ evidence” regarding

the amount in controversy at the time of removal. Id.

Sanders contends that the defendants have offered no

evidence to meet this burden. Here, defendants submitted an

affidavit stating that Sanders’s employment was terminated on

September 12, 2012, and that at the time of her termination her

salary was $35,672 per year, with $18,916 per year in additional

benefits. Doc. No. 6-1. Sanders’ request for lost wages and

benefits over the nineteen month period from her termination to

the removal date thus exceeds $75,000. There is consequently a

sufficient amount in controversy to invoke federal jurisdiction.

III. CONCLUSION

Defendants have alleged sufficient facts to meet their

burdens. Thus, I determine that the court has jurisdiction over

this matter pursuant to 28 U.S.C. § 1332. Sanders’ motion to

remand (Doc. No. 5) is denied.

SO ORDERED. /s/Paul Barbadoro Paul Barbadoro United States District Judge

June 23, 2014

cc: Linda B. Sullivan Leahy, Esq. Elizabeth K. Rattigan, Esq. 4