Stephen Andrews v. Earl’s Restaurants USA Inc. and Earl’s Restaurants Ltd.

2019 DNH 204

• Court: District Court, D. New Hampshire
• Decided: December 3, 2019
• Docket: 19-cv-817-PB
• Status: Published

Opinion

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 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.

2 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).

3 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.