Oum v. Target Corp.

2018 DNH 119

• Court: District Court, D. New Hampshire
• Decided: June 12, 2018
• Docket: 18-cv-341-LM
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Sang Oum and Montha Oum

v. Civil No. 18-cv-341-LM Opinion No. 2018 DNH 119 Target Corporation

O R D E R

Sang and Montha Oum brought suit in state court alleging

claims arising from injuries Sang sustained in a fall in

defendant Target Corporation’s (“Target”) Nashua, New Hampshire

store. Target removed the case to this court, asserting

diversity jurisdiction under 28 U.S.C. § 1332. Plaintiffs move

to remand the case to state court on the ground that the amount

in controversy does not exceed the requisite jurisdictional

amount. See doc. no. 3. Target objects.

STANDARD OF REVIEW

A removed case must be remanded to state court if the

district court lacks subject matter jurisdiction. 28 U.S.C. §

1447(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 complaint does not claim a specific amount of

damages, removal from state court is proper if it is facially

apparent from the complaint that the amount in controversy

exceeds the jurisdictional requirement.” Evans v. Yum Brands,

Inc., 326 F. Supp. 2d 214, 220 (D.N.H. 2004) (internal quotation

marks and citations omitted).1 Provided a plaintiff’s claims are

“colorable,” the court’s inquiry does not focus on their

probable success but rather on “whether to anyone familiar with

the applicable law [the] claim could objectively have been

viewed as worth” the jurisdictional minimum. Jimenez Puig v.

Avis Rent–A–Car Sys., 574 F.2d 37, 40 (1st Cir. 1978). 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).

1 Consistent with New Hampshire practice, no specific amount of damages is claimed in the complaint. See RSA 508:4–c; Evans, 326 F. Supp. 2d at 218 n.3.

2 DISCUSSION

In their complaint, plaintiffs allege that as a result of

his fall, Sang “suffered the following serious injuries:

a. Six upper teeth jammed together and out of alignment;

b. Two broken teeth with exposed nerves;

c. Multiple facial bone fractures;

d. Pain and swelling of the face;

e. Broken eye glasses;

f. Pain and Suffering; and

g. Permanent Disability.”

Doc. No. 1-1 at ¶ 8. Plaintiffs assert claims for negligence on

Sang’s behalf and loss of consortium on Montha’s behalf.

In their motion to remand, plaintiffs argue that the amount

in controversy does not exceed $75,000. In support, they submit

a statement of benefits from Sang’s health insurance company,

showing that his medical bills to date for injuries sustained

from the accident total $14,770.65. They also assert that Sang

lost wages in the amount of $3,000 - $5,000 as a result of his

injuries and that, other than Sang’s “need of some minor ongoing

dental care, his need for extensive medical treatment has

essentially reached an end.” Doc. No. 3 at ¶ 3.

In response, Target notes that in addition to the damages

specified in plaintiffs’ motion to remand, Montha also seeks

3 damages for loss of consortium. Further, they assert that Sang

seeks damages for pain and suffering and permanent disability,

and that plaintiffs seek to recover the costs of litigation and

attorney’s fees. They further represent that plaintiffs would

not stipulate to a cap on damages of $75,000. Defendants

contend that, viewed objectively, plaintiffs’ claims could be

valued at more than $75,000.

Target has shown by a preponderance of the evidence that

the amount in controversy exceeds $75,000. Plaintiffs seek

damages for pain and suffering and loss of consortium, as well

as permanent injuries. Such claims could objectively be viewed

as worth more than $75,000. Evans, 326 F. Supp. 2d at 221

(“Objectively viewed, Evans’s claims for her own alleged

Hepatitis A and the loss of consortium and emotional distress

resulting from her family's allegedly coming down with the

disease could be valued at $75,000 or more.”); Stewart v.

Tupperware Corp., 356 F.3d 335, 338 (1st Cir. 2004) (holding

that married couple’s claims for slight “permanent impairment to

their total bodily functions” in addition to mental anguish and

loss of consortium not worth less than $75,000 per plaintiff).

Therefore, plaintiffs’ motion to remand is denied.

4 CONCLUSION

For the foregoing reasons, plaintiffs’ motion to remand

(doc. no. 3) is denied.

SO ORDERED.

__________________________ Landya B. McCafferty United States District Judge

June 12, 2018

cc: Counsel of Record