UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Debra Chase

v. Civil No. 14-cv-392-JD Opinion No.

Corning, Inc.

O R D E R

Debra Chase brought suit in state court alleging that her

former employer, Corning, Inc., discriminated against her in

violation of RSA 354-A, retaliated against her, and wrongfully

terminated her employment. Corning removed the case to this

court, asserting diversity jurisdiction under

.

Chase moves to remand the case to state court on the ground that

the amount in controversy does not exceed the jurisdictional

amount. Corning objects.

Standard of Review

A removed case must be remanded to state court if the

district court lacks subject matter jurisdiction.

(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,

, 342 n.3 (2006); Pruell v. Caritas Christi,

(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.”

(c). When, as in this

case, the state court pleading seeks a money judgment but the

state practice does not permit a demand for damages, “the notice

of removal may assert the amount in controversy.”1

§ 1446(c)(2)(A). 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).

Discussion

Chase moves to remand the case, arguing that the amount in

controversy does not exceed $75,000. She contends that although

she seeks back pay, front pay, compensatory damages, enhanced

compensatory damages, punitive damages, and attorneys’ fees, the

amount in controversy does not exceed $75,000 because she was

seriously injured in a car accident and her resulting inability

to work eliminates her claim for front pay and severely restricts

her claim for back pay. In response, Corning contends that

Corning mistakenly argues that the amount in controversy is apparent on the face of the complaint. Consistent with New Hampshire practice, no specific amount of damages is claimed in the complaint. See RSA 508:4-c; Evans v. Yum Brands, Inc.,

, 218 n.3 (D.N.H. 2004).

2 only attempted to restrict her damages after the case was

removed, challenges her evidence, and argues that her claims for

compensatory, enhanced, and punitive damages would meet the

jurisdictional amount without considering whether her front and

back pay claims are diminished.

Chase provides opinion evidence that her injuries in the

accident will likely prevent her from working. Corning argues

that Chase improperly presented evidence of her inability to

work. Corning also contends that the evidence Chase offers

cannot be considered because it does not pertain to the

appropriate time and does not meet the summary judgment standard.

Corning provides evidence of Chase’s wages and benefits through

the affidavit of Kristin Kowaliw, Human Resource Manager at

Corning’s Keene facility where Chase worked.

A. Materials to Be Considered

Corning challenges the evidence Chase submitted in support

of her motion to remand, which consists of two expert opinion

reports. One is a psychological report prepared by Eric G. Mart,

Ph.D., ABPP, and the other is a vocational assessment prepared by

James T. Parker, CVRP, CRC. The psychological report is dated

September 2, 2014, with an addendum dated September 19, 2014, and

the vocational assessment is dated September 22, 2014. Both

reports address Chase’s abilities and deficits after her

accident. The psychological report identifies significant

3 symptoms and difficulties related to her injuries from the

accident, and the vocational assessment concluded that Chase is

totally disabled from competitive employment and is likely to

remain disabled from work.

1. Who May Submit Evidence

Corning asserts that only the defendant, who bears the

burden of proof on the jurisdictional issue, may provide evidence

to the court. While the cases Corning cites discuss the evidence

submitted by the defendants, that is to be expected when the

court is assessing whether the defendant met its burden.

Contrary to Corning’s theory, the First Circuit directs that

“deciding whether a defendant has shown a reasonable probability

that the amount in controversy exceeds [the jurisdictional

amount] may well require analysis of what both parties have

shown.” Amoche v. Guarantee Tr. Life Ins. Co.,

(1st Cir. 2009); see also Hogan v. Wal-Mart Stores East, L.P.,

, at *3 (D.R.I. Jan. 8, 2014) (explaining that

plaintiff may overcome defendant’s showing on the amount of

damages by establishing to a legal certainty that the amount is

less than $75,000). Therefore, the court may consider evidence

provided by both Corning and

2. Timing

Corning argues that the opinion evidence Chase submitted

does not pertain to the pertinent time for assessing whether the

amount in controversy exceeds $75,000. In support, Corning

argues both that the amount in controversy is determined as of

the time the complaint was filed and that the amount is

determined as of the time of removal. In the context of a motion

to remand, the amount in controversy is determined as of the date

of removal. Amoche,

.

Noting the removal date of September 10, 2014, Corning

contends that the opinion evidence is not relevant to the amount

in controversy because one of the reports submitted by Chase is

dated September 22, 2014. The reports assess Chase’s symptoms,

deficits, and abilities in light of her injuries caused by the

accident in January of 2014. Both reports pertain to Chase’s

ability to work at the time of removal, and the reports also

offer prognoses about Chase’s ability to work in the future.

Corning has not shown that the reports are not relevant to

Chase’s ability to work at the time of removal.

3. Competent Evidence

For purposes of determining the amount in controversy,

courts may consider extrinsic evidence when the complaint does

not include allegations of specific damages. Huston v. FLS

Language Ctrs., --- F. Supp. 2d ---,

(D.

5 Mass. Feb. 21, 2014). Summary judgment-type evidence is

competent to show facts pertaining to the amount in controversy.

Sanders v. Luminescent Sys., Inc.,

, at *1 (D.N.H.

June 23, 2014); Messier v. Ace Am. Ins. Co.,

, at

*3 (D.R.I. Sept. 26, 2013); Composite Co., Inc. v. Am. Int’l

Grp., Inc.,

(D. Mass. 2013).

Corning challenges Chase’s expert reports on the grounds

that the reports are hearsay. To preclude consideration of

evidence submitted for or against summary judgment, the objecting

party must show that the evidence “cannot be presented in a form

that would be admissible in evidence.” Fed. R. Civ. P. 56(c)(2)

(emphasis added). Because experts could appear at trial and

testify to opinions, which then would not be hearsay, an expert

report submitted for purposes of summary judgment could meet the

requirements of Rule 56(c). See Jeffers v. Farm Bureau Prop. &

Cas. Ins. Co.,

, at *3 (D. Ariz. Aug. 28, 2014);

Greater St. Louis Constr. Laborers Welfare Fund v. Symmetry

Landscaping, Inc.,

, at *6 (E.D. Mo. Jan. 13,

2012); Crouch v. Teledyne Cont’l Motors, Inc.,

,

at *1, n.3 (S.D. Ala. Apr. 21, 2011). Therefore, Corning has not

shown that the reports are inadmissible hearsay under the summary

judgment standard.

Corning also contends that the reports Chase offers cannot

be considered because they are not authenticated and because the

experts have not been qualified. Corning cites no case, rule, or

6 other authority to support its theory that the reports must be

authenticated and the experts must be qualified before the

opinions may be considered.

An opposing party may challenge an expert’s opinion offered

to support or oppose summary judgment on the ground that the

opinion does not meet the requirements of Federal Rule of

Evidence 702. See, e.g., Kumho Tire Co., Ltd. v. Carmichael,

(1999). Corning, however, has not challenged

the reports on those grounds. Further, the jurisdictional

assessment done for purposes of a motion to remand is to proceed

expeditiously without extensive fact finding. Huston, --- F.

Supp. 2d at ---,

, at *2-*3 (D. Mass. Feb. 21,

2014) (citing Reynolds v. World Courier Ground, Inc.,

(D. Mass. 2011)).

Corning has not shown that the expert opinion reports

submitted by Chase cannot be considered for purposes of the

motion to remand.

5. Corning’s Evidence

Chase does not object to the evidence Corning submitted to

show Chase’s earnings and benefits. In her affidavit, Kowaliw

states that, while she was employed at Corning, Chase earned

$17.97 per hour as a Machinist II employee. Based on an average

of forty hours, Chase earned approximately $718.80 per week and

$37,378.00 per year. Chase also participated in Corning’s health

7 and disability plans which had a value of $11,856.00 in 2013.

Chase’s last day of work was November 21, 2013.

B. Damages

Chase represents that her injuries from the accident are

debilitating and provides the two expert opinion reports which

she interprets to mean that she is not likely to be able to work

again. As a result, Chase asserts, her claim for back pay is

reduced to the two month period between November 21, 2013, and

January 28, 2014, and her claim for front pay is eliminated by

her inability to work. Based on those limitations, Chase’s claim

for back pay, including benefits, would be under $10,000.

In addition, however, Chase seeks compensatory, enhanced,

and punitive damages and attorneys’ fees and costs.2 Chase

contends that those damages will be restricted because of the low

amount of back pay at issue in the case. Corning presents

evidence from awards in three other cases in New Hampshire to

show that compensatory, enhanced, and punitive damages awards can

far exceed the amount of lost pay.

2 As long as the claims are “colorable”, they may be considered for purposes of determining the jurisdictional amount. Evans,

. The court notes, however, that there appears to be no colorable basis for punitive damages as relief under Chase’s state law claims. See RSA 507:16; State v. Hynes,

(2009); Stewart v. Bader,

(2006).

8 In Miller v. Colonial Vill. Pharmacy, No. C93-326-L, 1994

Nat. Jury Verdict Review LEXIS 821, the plaintiff brought a claim

under Title VII of the Civil Rights Act of 1964 for sexual

harassment and state law claims of constructive discharge and

negligent infliction of emotional distress. A jury returned a

verdict of $110,000, which included $15,000 in lost wages for all

three claims, $10,000 in enhanced compensatory damages on the

constructive discharge claim, $2,500 in compensatory damages and

$22,500 in enhanced compensatory damages on the emotional

distress claim, and $60,000 in punitive damages on the Title VII

claim.

In this case, Chase brings only state law claims, not a

claim under Title VII which provides for punitive damages. Using

the verdict in Miller as a template, Chase’s damages might total

as much as $50,000, but that amount is far below the

jurisdictional requirement of $75,000.

The second example Corning provides is cited only as “2005

N.H. Jury Verdicts Review LEXIS 31 (November 2005)” without a

case name or docket number. That case could not be found with

the information Corning provided. As represented by Corning,

however, that case involved violations of the Family and Medical

Leave Act, along with claims for disability discrimination and

wrongful termination. The verdict of $480,000 included $55,000

in lost wages and benefits and $425,000 in compensatory and

enhanced compensatory damages. Without additional detail, the

9 case does not appear to be sufficiently similar to Chase’s case

to provide guidance as to the amount in controversy here.

Corning also cites Snelling v. City of Claremont,

(N.H. 2007). In Snelling, the plaintiff brought a

state law claim for wrongful termination and a claim under

for violation of his First Amendment rights. Id.

at 1277. The jury awarded the plaintiff $151,000 in past wages

and benefits, $50,000 for emotional distress, $151,000 in

enhanced compensatory damages, and $3,780 in punitive damages.

Id. Corning has not shown how the claims and amounts involved in

Snelling indicate the likely amount in controversy here.

Corning has not shown by a preponderance of the evidence

that the amount in controversy in this case exceeds the

jurisdictional amount.

C. Stipulation

A plaintiff may avoid federal jurisdiction by a legally

binding stipulation that the amount of her damages is

unequivocally below the jurisdictional amount. See Standard Fire

Ins. Co. v. Knowles,

(2013); Raymond v.

Lane Constr. Corp.,

(D. Me. 2007). Counsel

for Corning represents that she “indicated to [Chase’s counsel]

that if he stipulated that Plaintiff’s total recovery would not

exceed $75,000, Corning would assent to the forthcoming Motion to

Remand” but Chase’s counsel “failed to so stipulate and instead

10 filed the instant Motion to remand.” Because the burden is on

the defendant to show the jurisdictional amount by a

preponderance of the evidence, the plaintiff is not required to

enter a stipulation to limit her damages for purposes of

supporting her motion to remand. See Williams v. Best Buy Co.,

Inc.,

(11th Cir. 2001); see also Lottinger v.

State Farm Fire & Cas. Co.,

, at *2 (E.D. La.

Sept. 5, 2014) (explaining that in the Fifth Circuit if a

defendant meets the jurisdictional burden a plaintiff can still

avoid federal jurisdiction by stipulation and waiver); Elliott v.

Tractor Supply Co.,

, at *3 (N.D. W.Va. Aug. 21,

2014) (noting that plaintiffs are not required to provide proof

of the jurisdictional amount “or provide any type of stipulation

stating they are seeking less than $75,000 in damages”).

Conclusion

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

(document no. 5) is granted. The case is remanded to state court

pursuant to § 1447(c).

SO ORDERED.

____________________________ Joseph A. DiClerico, Jr. United States District Judge

October 30, 2014

cc: Stacie Boeniger Collier, Esq. John P. Sherman, Esq.

11