Kelleher v. Marvin Lumber & Cedar CV-00-065-JD 06/13/00 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

John J. Kelleher, Jr.

v. Civil No. 00-65-JD Opinion No.

Marvin Lumber and Cedar Co. and Marvin Windows of Tennessee, Inc.

O R D E R

The plaintiff, John Kelleher, brought suit against the

defendants in state court alleging claims based on state law and

the Magnuson-Moss Warranty Act ("MMWA"),

, et

seq. The defendants removed the case to this court, asserting

federal question jurisdiction under the MMWA and, alternatively

diversity jurisdiction. The plaintiff moves to remand the case

to state court, contending that this court lacks subject matter

jurisdiction based on the amount-in-controversy requirements of

both the MMWA, § 2310(d)(3)(B), and diversity jurisdiction,

.

Background

The plaintiff alleges that the Marvin windows installed in

his house in Ogunquit, Maine, were represented to have a

guaranteed life of fifteen years. He alleges that the windows

were defective and were disposed to rot in an unreasonably short time. As a result, he contends "[t]he defects in the windows

will cause, if not replaced, substantial injury to other property

of the plaintiff by allowing the entry of water and other

elements into the walls and interior of the building, which the

windows were intended to protect." Compl. at I 11. The

plaintiff also claims that he "has sustained and will sustain

substantial damages as a result of defects in the windows . . .

including the cost of repair and replacement, loss of value of

the house in which the windows are installed, damage to other

property including that resulting from entry of moisture, and

loss of use of the windows themselves." I d . at 5 12.

The plaintiff brings state law claims alleging breach of

express and implied warranties, strict product liability,

negligence, and negligent misrepresentation, and a claim alleging

violation of the MMWA. The plaintiff seeks damages under the

MMWA including "without limitation, costs of repair and

replacement." Compl. at I 47. The plaintiff also seeks an award

of his litigation expenses, including attorneys' fees.

The complaint does not include an allegation of damages as

to any of the claims. In the motion to remand, the plaintiff

states that information has been provided to the defendants that

the cost of installing replacement windows would be approximately

$43,000. The defendants present evidence that the cost of

2 installing replacement windows would be approximately $46,261.

The parties have not provided any evidence as to the value of the

other damages alleged, and the plaintiff has not stipulated to

the amount of damages he seeks.

Discussion

Under the removal statutes, a defendant may remove an action

from state court to an appropriate federal court that has subject

matter jurisdiction. See

, 1446.

" [D]efendants have the burden of showing the federal court's

jurisdiction." Danca v. Private Health Care Svs., Inc.,

(1st Cir. 1999) . "Removal statutes should be strictly

construed against removal and doubts resolved in favor of

remand." Therrien v. Hamilton.

, 7 8 (D. Mass.

19 95); accord Danca,

.

The plaintiff challenges this court's subject matter

jurisdiction and asks that the case be remanded to state court

pursuant to

(c). The plaintiff also seeks

recovery of his costs and expenses expended in pursuing a remand

order. The parties appear to agree that when, as here, the

complaint does not include a specific amount in damages, the

defendant must show the jurisdictional amount by a preponderance

of the evidence. See, e.g., Grubbs v. Pioneer Housing, Inc., 75

(M.D. Ala. 1999).

The MMWA sets a jurisdictional requirement that no claim may

be brought in a federal court "if the amount in controversy is

less than the sum or value of $50,000 (exclusive of interest and

costs) computed on the basis of all claims to be determined in

this suit."

(d)(3)(B). Courts have

interpreted that section to exclude any amount claimed for

attorneys' fees and to exclude any damages based on state law

claims. See Ansari v. Bella Automotive Group, Inc.,

(11th Cir. 1998) (citing cases). The defendants

have not pursued diversity jurisdiction under

,

which requires an amount in controversy in excess of $75,000.

In this case, the defendants have fallen just short of

showing that the plaintiff's MMWA claim puts an amount in

controversy in excess of $50,000. They have established a

likelihood that replacement windows and labor for their

installation will cost $46,260. To make up the difference, the

defendants point to the claimed consequential damages related to

diminution in value of the house, loss of use of the windows, and

damage to other property. The defendants, however, offer no

evidence as to the possible value of those claimed losses.

Absent proof by a preponderance of the evidence, the defendants

have not carried their burden of establishing the requisite

4 amount in controversy, and the court will not speculate as to the

possible value of any additional damages claimed under the MMWA.

Construing the removal statute strictly and resolving doubt

in favor of remand, the court finds that the defendants have not

shown by a preponderance of the evidence that the plaintiff's

MMWA claim meets the jurisdictional amount-in-controversy

requirement. For that reason, the defendants have not shown that

federal subject matter jurisdiction exists as to this case.

Therefore, the case is remanded to state court. See § 1447(c).

The court, in its discretion, denies an award of costs and

expenses as allowed under § 1447 (c) .

Conclusion

For the foregoing reasons, the plaintiff's motion to remand

(document no. 6) is granted except as to an award of costs and

expenses. The defendants' pending motion to dismiss (document

no. 4) is denied for lack of subject matter jurisdiction. The

clerk of court shall remand the case to Hillsborough County

Superior Court, Northern District.

SO ORDERED.

Joseph A. DiClerico, Jr. District Judge June 13, 2000 cc: John R. Harrington, Esquire Robert E. Dunn Jr., Esquire

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