UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Karen M. Weinhold, et al.

v. Case No. 18-cv-383-PB Opinion No.

The Phoenix Insurance Company, et al.

MEMORANDUM AND ORDER

The Weinholds and the State of New Hampshire (“State”)

jointly filed this insurance declaratory judgment case in New

Hampshire Superior Court pursuant to Section 491:22 of the New

Hampshire Revised Statutes. The defendants removed the action

to federal court, invoking this court’s jurisdiction pursuant to

and § 1441(a) on the basis that there is

complete diversity of citizenship between the parties and the

amount of controversy exceeds $75,000. The issue before me is

whether there is diversity jurisdiction over the case given that

the State is a party to the action.

I. BACKGROUND 1

The Weinholds obtained a jury verdict against the State and

two other defendants in the underlying state tort action. The

State’s share of the verdict totaled $3.6 million, exclusive of

1 A more detailed summary of facts of this case appears in my order denying the defendants’ motion to dismiss the action on ripeness grounds. See

. interest. Its liability, however, is subject to a statutory cap

that limits the State’s tort liability to the greater of

$475,000 or the amount of available insurance coverage. See

-B:14, I. The State maintains that

its share of the verdict is covered in full under three policies

that its contractor, Audley Construction, Inc., obtained from

Travelers for the benefit of the State.

The State’s contract with Audley required Audley to secure

owner’s protective liability coverage for the benefit of the

State, a commercial general liability policy that names the

State as an additional insured, and a commercial umbrella

policy. Audley procured three different policies from

Travelers: an owner’s protective liability policy with $2

million in coverage per occurrence and $3 million in aggregate

(“Owner’s Policy”), a commercial general liability policy with

$1 million in coverage per occurrence and $2 million in

aggregate (“CGL Policy”), and a commercial excess liability

policy with $10 million in coverage (“Umbrella Policy”).

After the jury verdict in the underlying action, Travelers

agreed that the State is covered under the Owner’s Policy, which

has $1.85 million in coverage remaining. 2 Travelers, however,

2 Travelers previously paid $150,000 from that policy to settle claims against the State brought by another individual.

2 took the position that the CGL Policy and the Umbrella Policy do

not cover the State’s liability.

The Weinholds and the State jointly sued Travelers in New

Hampshire Superior Court, seeking a declaratory judgment that

the State is covered as an additional insured under the CGL

Policy and the Umbrella Policy. Travelers removed the case to

federal court based on diversity of citizenship, alleging that

the State and the Weinholds are citizens of New Hampshire and

that the Travelers entities sued are citizens of Connecticut.

See Doc. No. 2.

I subsequently raised the question whether removal was

improper because it appeared that the State’s presence as a real

party in interest destroyed complete diversity of citizenship.

See Doc. No. 26. During a telephone conference held on October

9, 2018, the Weinholds and Travelers argued that the State is a

nominal party whose presence can be disregarded for the purpose

of diversity jurisdiction. The State disagreed and argued that

it is a real party to the action. I directed the parties to

file briefs presenting their respective positions on this issue.

II. STANDARD OF REVIEW

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,

(1st Cir. 2004). When jurisdiction is questioned, “the party

3 invoking the jurisdiction of a federal court carries the burden

of proving its existence.” Murphy v. United States,

(1st Cir. 1995) (internal quotation marks omitted).

Thus, if a plaintiff sues in federal court, the burden to

establish jurisdiction is on the plaintiff. See

When the

plaintiff instead files suit in state court and the defendant

removes the action to federal court, the onus shifts to the

defendant to demonstrate that federal jurisdiction exists.

Danca v. Private Health Care Sys., Inc.,

(1st Cir.

1999). If federal jurisdiction is challenged after removal is

accomplished, however, the burden is assigned to the party

asserting jurisdiction at that time. See DaimlerChrysler Corp.

v. Cuno,

, 342 n.3 (2006); Culhane v. Aurora Loan

Servs. of Neb.,

(1st Cir. 2013).

When Travelers removed this case to federal court, neither

the State nor the Weinholds challenged the propriety of removal.

Once I inquired into the existence of complete diversity of

citizenship, the State challenged subject-matter jurisdiction,

and the Weinholds and Travelers asserted that it exists.

Accordingly, it is incumbent on the Weinholds and Travelers to

demonstrate that the court has jurisdiction over the case.

Because the relevant facts are undisputed, the existence of

subject-matter jurisdiction is a question of law. See Skwira v.

United States,

(1st Cir. 2003)

4 III. ANALYSIS

Diversity jurisdiction requires complete diversity of

citizenship between all plaintiffs on one side and all

defendants on the other side. Caterpillar Inc. v. Lewis,

(1996). A state is not a citizen of a state for

jurisdictional purposes; it is instead considered a stateless

entity. Moor v. Alameda Cty.,

(1973);

Petroleum Expl. v. Pub. Serv. Comm’n of Ky.,

(1938); U.S.I. Props. Corp. v. M.D. Constr. Co.,

(1st Cir. 2000). As a result, when it is a real party in

interest, a “[s]tate’s presence as a party will destroy complete

diversity.” Miss. ex rel. Hood v. AU Optronics Corp.,

(2014). A state’s presence as a real party to the

controversy spoils diversity jurisdiction even if there are

otherwise diverse parties on the same side of the lawsuit as the

State. See Newman-Green, Inc. v. Alfonzo-Larrain,

(1989) (presence of “stateless” party destroyed complete

diversity even though remaining parties were completely

diverse); D.B. Zwirn Special Opportunities Fund, L.P. v.

Mehrotra,

(1st Cir. 2011) (no diversity

jurisdiction if any member of plaintiff LLC was “a stateless

person, or an entity treated like a stateless person”; noting by

analogy that “states are not ‘citizens’ for purposes of the

diversity statute”); Ninigret Dev. Corp. v. Narragansett Indian

5 Wetuomuck Hous. Auth.,

(1st Cir. 2000)

(“notwithstanding the joinder of other diverse parties, the

presence of an Indian tribe destroys complete diversity” given

that “a tribe is analogous to a stateless person”).

If a state is a nominal party with no real interest in the

litigation, its presence must be disregarded for jurisdictional

purposes. See Navarro Sav. Ass’n v. Lee,

(1980) (“[A] federal court must disregard nominal or formal

parties and rest jurisdiction only upon the citizenship of real

parties to the controversy.”). “In contrast to a real party in

interest, a formal or nominal party is one who, in a genuine

legal sense, has neither an interest in the result of the suit,

nor an actual interest in or control over the subject matter of

the litigation.” 15 Moore’s Federal Practice § 102.15 at 102-36

(3d. ed. 2018).

I conclude that the State is a real party to this

controversy, and thus its presence defeats diversity

jurisdiction. Two factors, taken together, compel this

conclusion.

First, the State is an insured suing its insurer to

determine the extent of coverage for the State’s tort liability

in the underlying action. An insured ordinarily is not

considered a nominal party in an action against its insurer

regarding its own coverage. See, e.g., Geismann v. Am. Econ.

6 Ins. Co., No. 4:11-CV-1185-CDP,

, at *2 (E.D. Mo.

Sept. 28, 2011) (“An insured party has more than a nominal

interest in the outcome of a declaratory judgment action

regarding the terms of its policy.”).

Second, in requiring Audley to purchase significant

insurance coverage for the State’s benefit, the State sought to

ensure that victims of its negligence, such as the Weinholds,

would be made whole. The State has a substantial and real

interest in litigation that will determine whether this

important policy goal will be achieved. This interest is “one

in the state as an artificial person,” as distinguished from

general governmental interests such as the welfare of its

citizens or enforcement of its laws that have been deemed

insufficient. See Mo., Kan., & Tex. Ry. Co. v. Hickman,

(1901); see also Am. Lung Ass’n of N.H. v. Am. Lung

Ass’n, No. CIV. 02-108-B,

, at *2 (D.N.H. July

25, 2002) (citing Hickman for the proposition that the state was

a nominal party where it had no “interest in the action apart

from its general interest in protecting its citizens”).

Travelers and the Weinholds maintain that the State is

nonetheless a nominal party because it has no financial stake in

the outcome of the dispute. Section 541-B:14 caps the State’s

liability at the greater of $475,000 or the amount of available

insurance coverage. Because the State has $1.85 million in

7 available coverage under the Owner’s Policy, win or lose, it

will not be liable to pay the Weinholds any monies from the

public treasury.

But the State is not necessarily a nominal party simply

because it lacks a pecuniary interest in the outcome of the

litigation. The Fifth Circuit’s decision in Louisiana v. Union

Oil Company of California,

(5th Cir. 2006) is

instructive on this point. There, the State of Louisiana and a

local school board filed suit in state court against out-of-

state oil companies for harm to “Section 16” public lands.

. The federal government had dedicated Section 16 lands

for the use of public education before Louisiana was admitted

into the Union.

. As a result, although Louisiana

held the legal title to the lands, local school boards were

entitled to use them for educational purposes.

at 366 &

n.1. After the oil companies removed the case to federal court

on diversity grounds, the plaintiffs sought remand on the basis

that Louisiana’s presence destroyed complete diversity.

. Despite the fact that Louisiana’s public coffers could not

benefit from the action, the Fifth Circuit concluded that the

state was a real party to the controversy. See

. The

court reasoned that Louisiana owned the lands and had a “moral

obligation” to ensure that any revenues derived from them were

8 used for school purposes.

Accordingly, Louisiana had “more

than a ‘nominal’ interest” in the case.

Here, the State’s status as an insured whose coverage is in

dispute and the fact that it sought this coverage in the

interest of protecting victims of its negligence are likewise

sufficient, in tandem, to make the State a real party in

interest. The State’s presence in this action therefore

destroys complete diversity of citizenship.

IV. CONCLUSION

For the foregoing reasons, there is no federal subject-

matter jurisdiction over this case. The case is remanded to New

Hampshire Superior Court.

SO ORDERED.

/s/ Paul Barbadoro Paul Barbadoro United States District Judge

December 13, 2018

cc: John P. Graceffa, Esq. Brian A. Suslak, Esq. Scott H. Harris, Esq. Ashley B. Campbell, Esq. Mary Elizabeth Tenn, Esq. Vincent A. Wenners, Jr., Esq. Dianne H. Martin, Esq. Lawrence M. Slotnick, Esq.

9