Roberge v. James River Paper Co.

• Court: District Court, D. New Hampshire
• Decided: July 6, 1998
• Docket: CV-98-118-SD
• Status: Published

Opinion

Roberge v. James River Paper Co. CV-98-118-SD 1/S/9S UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Harvey G. Roberge, Jr.

_____ v. Civil No. 98-118-SD

James River Paper Co., Inc., n/k/a Fort James Operating Co., Inc.

O R D E R

Plaintiff Harvey Roberge initiated this negligence action in

Coos County Superior Court. His complaint alleges that he was

injured when he slipped on snow and ice while delivering oil at

defendant's premises. As a result of the fall, plaintiff tore

his rotator cuff and suffers pain in his shoulder and loss of

motion. Defendant James River Paper Co., Inc., n/k/a Fort James

Operating Co., Inc. (James River), removed the case to this court

based on diversity jurisdiction. Currently before the court is

Roberge's motion to remand the case to state court.

"Removal statutes are strictly construed with doubts

resolved in favor of state court jurisdiction." Chin v. Holiday

Cruises II, Inc., 141 F.R.D. 367, 368 (D. Mass. 1992). If, after

removal, it appears that the district court lacks subject matter

jurisdiction, the court must remand the case to state court. See

28 U.S.C. § 1447. In this case, the alleged basis for

jurisdiction is diversity, which requires that the amount in

controversy be at least $75,000. See 28 U.S.C. § 1332. The parties do not contest the existence of diversity of citizenship;

at issue is the amount in controversy.

According to James River, it "bears no burden of producing

affirmative evidence concerning the amount-in-controversy

requirement for diversity jurisdiction." Memorandum of Law in

Support of Defendant's Objection to Plaintiff's Motion to Remand

at 3-4. This, however, is not an accurate statement of the law.

Whenever jurisdiction is challenged, the party alleging

jurisdiction must support its allegation of jurisdictional facts

by competent proof. See 15 M o o r e 's F e d e r a l P r a c t i c e 3d § 102.107[1];

McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189

(1936) ("If [the party asserting jurisdiction's] allegations of

jurisdictional facts are challenged by his adversary in any

appropriate manner, he must support them by competent proof.");

United Food Local 919 v. Centermark Properties, 30 F.3d 298, 304-

OS (2d Cir. 1994). This is no less true when the defendant has

removed the case and it is the plaintiff who is challenging

jurisdiction. See United Food, supra, 30 F.3d at 305. Thus

James River, as the party defending jurisdiction, bears the

burden of establishing jurisdiction by competent evidence.

Although courts are split over the standard of proof the

defendant is required to meet, it is clear that "[t]he simple

allegation that the amount in controversy exceeds the

jurisdictional amount neither overcomes the strong presumption

against removal nor satisfies the defendant's burden of setting

2 forth facts that support [the] amount of [the] claim in [the]

removal notice." 16 M o o r e 's F e d e r a l P r a c t i c e 3d § 107.14[2][g] [v] .

In this case, James River has not overcome the presumption

in favor of state court jurisdiction. Defendant's assertion that

plaintiff's torn rotator cuff and chronic frozen shoulder

indicate he has a realistic expectation of recovering more than

$75,000 is insufficient. James River simply has not set forth

competent evidence indicating that the amount in controversy is

sufficient to support diversity jurisdiction.

Conclusion

For the abovementioned reasons, plaintiff's motion to remand

(document 7) must be and herewith is granted.

SO ORDERED.

Shane Devine, Senior Judge United States District Court

July 6, 1998

cc: Clare M. Hinkley, Esq. Jeffrey S. Cohen, Esq.