Nollet v . Palmer CV-02-265-JD 07/18/02
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Elaine Nollet
v.
Opinion N o . 2002 DNH 136
John Palmer
O R D E R
The plaintiff, Elaine Nollet, filed suit in state court
against the defendant, John Palmer, alleging that Palmer entered
her property and cut down and removed a number of trees without
her permission. Nollet alleges claims of intentional trespass in
Count I , and negligent trespass in Count I I . Palmer filed a
timely notice of removal pursuant to 28 U.S.C. § 1446, alleging
that this court has original jurisdiction over the action based
on diversity of citizenship under
28 U.S.C. § 1332. See
28
U.S.C. § 1441(b).
Nollet moves for summary dismissal of the action with remand
to state court, on the ground that this court lacks subject
matter jurisdiction. See 28 U.S.C. § 1447(c). She asserts that
the amount in controversy in this case is less than $75,000, and
therefore fails to satisfy the statutory requirement for the
court to exercise diversity jurisdiction. See
28 U.S.C. § 1332.
Palmer objects.
Background
Nollet lives in New Castle, New Hampshire, in a home on
property that abuts property owned by Adelbert and Agnes Palmer.
The defendant, John Palmer, is the Palmers’ adult son who lives
in Boston, Massachusetts. Nollet alleges that Palmer frequently
visits his parents at their home in New Hampshire. In September
of 1999, Nollet discovered that a number of trees in the rear of
her property had been cut down and removed without her
permission. She claims that she subsequently learned that Palmer
was responsible for the felled trees. She brought this action
against Palmer in state court in a writ of summons (hereinafter
“complaint”) dated April 3 0 , 2002. 1
In Count I of the complaint, Nollet brings a claim of
intentional trespass. She alleges that in the spring of 1999,
Palmer “with force and arms broke and entered” her property and
cut down and removed a number of trees, causing injury. She
seeks damages in “a sum within the jurisdictional limits of this
[state court] . . . enhanced damages as a result of willful and
wanton acts of the Defendant given the flagrant nature of such
trespass and . . . multiple damages pursuant to [Revised Statutes
Annotated (“RSA”) 227-J:8(II)].”
1
She previously filed a separate suit against Adelbert and
Agnes Palmer in state court.
2
In Count I I , Nollet brings a claim of negligent trespass.
She alleges that in the spring of 1999, Palmer entered her
property and removed trees. She claims that Palmer had a duty to
act in a careful manner, in order to avoid entering her property
and removing trees located on her property. Nollet alleges that
Palmer negligently, carelessly, and unlawfully entered her
property and removed trees, causing injury. For the negligent
trespass claim she seeks damages in “a sum within the
jurisdictional limits of this [state court]; provided further,
that the Plaintiff is entitled to multiple damages for the
wrongful cutting and removing of her trees all pursuant to [RSA
227-J:8(II)].”
Discussion
Palmer filed a notice of removal on the basis of diversity
of citizenship. See 28 U.S.C. § 1441 and § 1446. He asserts
that at the time Nollet filed the suit, a review of her complaint
and the discovery materials from the elder Palmers’ case showed
that the amount in controversy exceeded $75,000. Under
28 U.S.C.
§ 1441 and § 1446, a defendant may remove an action from state
court to a federal court that has subject matter jurisdiction
over the action. A party seeking to remove an action from state
to federal court has the burden of showing that jurisdiction is
3
proper. See Danca v . Private Health Care Sys., Inc., 185 F.3d 1 ,
4 (1st Cir. 1999); see also
28 U.S.C. § 1441. Removal statutes
are to be “strictly construed.” Danca,
185 F.3d at 4 .
Uncertainties regarding the amount in controversy are resolved in
favor of remand. See Martin v . Franklin Capital Corp.,
251 F.3d
1284, 1290 (10th Cir. 2001); Burns v . Windsor Ins. Co.,
31 F.3d
1092, 1095 (11th Cir. 1994); Therrien v . Hamilton,
881 F. Supp.
7 6 , 78 (D. Mass. 1995). “[The court has] a responsibility to
police the border of federal jurisdiction.” Spielman v . Genzyme
Corp.,
251 F.3d 1 , 4 (1st Cir. 2001) (quotation omitted).
To establish subject matter jurisdiction based on diversity,
the defendant must show that the amount in controversy in the
action exceeds the sum of $75,000. See 28 U.S.C. § 1332(a); see
also Bull N.H. Info. Sys., Inc. v . Hutson,
229 F.3d 321, 328 (1st
Cir. 2000). “For the purpose of establishing diversity
jurisdiction, the amount in controversy is determined by looking
to the circumstances at the time the complaint [was] filed.”
Coventry Sewage Assocs. v . Dworkin Realty Co.,
71 F.3d 1 , 4 (1st
Cir. 1995). In general, the sum of damages claimed by the
plaintiff provides the amount in controversy, if the claim is
made in good faith. See S t . Paul Mercury Indem. C o . v . Red Cab
Co.,
303 U.S. 283, 288-89 (1938); Coventry Sewage,
71 F.3d at 4 .
However, in this case Nollet has not claimed a specific sum
4
in damages.2 The First Circuit has not yet articulated the
defendant’s burden of proving the amount in controversy where the
plaintiff has not claimed a specific amount of damages in the
pleadings. See Kivikovski v . Smart Prof. Photocopying Corp., N o .
00-524-B, 2001 WL 274763, at *1 (D.N.H. Feb. 2 0 , 2001). In the
majority of circuits, “when the plaintiff's damages are
unspecified, courts generally require that a defendant establish
the jurisdictional amount by a preponderance of the evidence.”3
Martin,
251 F.3d at 1290; see, e.g., S t . Paul Reinsurance C o . v .
Greenberg,
134 F.3d 1250, 1253 (5th Cir. 1998); Chase, 110 F.3d
at 427; Sanchez v . Monumental Life Ins. Co.,
102 F.3d 398, 404
(9th Cir. 1996); United Food & Commercial Workers Union, Local
919 v . CenterMark Prop. Meridan Square, Inc.,
30 F.3d 298, 305
(2d Cir. 1994); Gafford, 997 F.2d at 157-58; see also McNutt v .
General Motors Acceptance Corp.,
298 U.S. 178, 189 (1936) (noting
that party asserting jurisdiction has burden of showing
2
RSA 508:4-c provides that a plaintiff shall not specify or
allege the amount of damages claimed in an affirmative pleading.
3
The “preponderance of evidence” standard is articulated
both as “more likely than not” and as “proof to a reasonable
probability.” See Chase v . Shop ‘N Save Warehouse Foods, 110
F.3d 424, 427 (7th Cir. 1997); Gafford v . Gen. Elec. Co.,
997
F.2d 150, 158 (6th Cir. 1993). “These two variations of the
preponderance standard appear largely identical.” Penn v . Wal-Mart Stores, Inc.,
116 F. Supp. 2d 557, 564-65 (D.N.J. 2000);
Kivikovski,
2001 WL 274763, at *1 & n.4.
5
jurisdiction by preponderance of evidence). Accordingly, Palmer
will meet his burden if he shows by a preponderance of the
evidence that the value of Nollet’s claims, if successful, will
exceed $75,000. See Kivikovski, 2001 WL 274763, at *1 n.4 & * 2 .
Palmer contends that Nollet’s complaint seeks compensatory
damages, enhanced damages, and statutory damages, which if
awarded together would exceed the requisite sum of $75,000.
Nollet seeks all three types of damages in Count I . In Count I I ,
Nollet seeks compensatory and statutory damages, but not enhanced
damages. Presumedly, Palmer bases his argument on Count I
because it has potential to yield higher damages than Count II. 4
Accordingly, the court will first determine whether Palmer has
shown by a preponderance of the evidence that the damages alleged
in Count I exceed $75,000, as required to support diversity
jurisdiction.
4
Nollet asserts that in Count I and Count II she alleged two
alternate theories of recovery for the same claim, and Palmer
does not seem to dispute that characterization of her complaint.
Indeed, Palmer’s calculation of the amount in controversy
includes only one award of compensatory damages and one award of
statutory damages, suggesting that he expects Nollet would
recover on only one of her two claims.
6
I. Count I : Intentional Trespass
In Count I , the intentional trespass claim, Nollet seeks
compensatory and enhanced damages, and statutory damages pursuant
to RSA 227-J:8. Enhanced compensatory damages may be properly
applied in tort cases “when the act[] complained of ha[s] been
accompanied by aggravation, insult, oppression, or malice.”
Vratsenes v . N.H. Auto. Inc., 112 N.H. 7 1 , 73 (1972) (holding
that enhanced damages my be awarded in trespass case). Enhanced
damages are not punitive, and they are not awarded in addition to
or separate from actual damages. See Johnson v . Fernald,
120
N.H. 440, 443 (1980); Vratsenes,
112 N.H. at 7 3 ; see also RSA
507:16 (prohibiting punitive damages in New Hampshire). Enhanced
compensatory damages are simply the actual damages incurred,
“estimated by the more liberal rule that prevails in the case of
malicious wrongs.” Johnson,
120 N.H. at 443. To justify
enhanced damages, a plaintiff must show actual malice. See
id.
at 441-42. “There must be ill will, hatred, hostility, or evil
motive on the part of the defendant.” Munson v . Raudonis,
118
N.H. 474, 479 (1978).
Both parties rely on a report prepared for Nollet by
consulting arborist Carl A . Cathcart to establish actual
7
damages.5 Cathcart fixes the value of the lost trees at $7,220.
Even if Nollet could show malice on Palmer’s part, awarding
enhanced compensatory damages ten times the amount of the actual
damages would appear impermissibly punitive. Where the amount in
controversy is uncertain, the issue is resolved in favor of
remand. See Therrien, 881 F. Supp. at 7 8 . Palmer has not met
his burden of showing by a preponderance of the evidence that
enhanced compensatory damages would reach $75,000 for the
intentional trespass claim in Count I .
In addition to enhanced damages, Nollet seeks damages in
Count I under RSA 227-J:8. Section 227-J:8(I) provides: “No
person shall negligently cut, fell, destroy, injure, or carry
away any tree, timber, log, wood, pole, underwood or bark which
is on the land of another person . . . without the permission of
that person or the person’s agent.”6 Section 227-J:8(II)
provides a civil penalty for violation of RSA 227-J:8(I): “In
addition to any other civil or criminal penalty allowed by law,
any person who violates [RSA 227-J:8(I)] shall forfeit to the
person injured no less than 3 and no more than 10 times the
5
Cathcart prepared the report for Nollet’s use in pending
litigation against the elder Palmers.
6
RSA 227-J:8 replaced the former RSA 539:1, which was
repealed effective January 1 , 1996. See McNamara v . Moses, 146
N.H. 729, 733 (2001).
8
market value of every such tree, . . . .”
Nollet asserts that, even considering the maximum damages
allowable under RSA 227-J:8(I), her damages would not exceed
$72,220, therefore falling short of the $75,000 amount in
controversy required to establish diversity jurisdiction. In
further support of her argument, Nollet concedes that her damages
are limited to $72,220, which caps her damages to that amount.7
Palmer argues that the statutory damages may be augmented by
$7,220 in compensatory damages, amounting to $79,440, plus an
unspecified amount of enhanced damages.
The multiple damages provided in RSA 227-J:8(II) are
available “[i]n addition to any other civil . . . penalty allowed
by law.” The penalty may be awarded in addition to the
compensatory damages for the lost trees. See McNamara, 146 N.H.
at 731-32, 734-35; see also Woodburn v . Chapman,
116 N.H. 503,
505 (1976) (construing RSA 539:1 to allow compensatory damages as
7
Palmer contends that Nollet’s concession of damages is not
relevant because a subsequent reduction of the amount in
controversy does not defeat diversity jurisdiction. See Coventry
Sewage, 71 F.3d at 4 . That principle relates to reductions
resulting from discovery or a factual error by a third-party,
that occur after the case is successfully removed. See
id. at 6-
7 (holding that third-party billing error that reduced amount in
controversy below threshold for diversity jurisdiction did not
divest court of jurisdiction). Here, Nollet’s concession applies
to the value of her claim at the time she filed suit in state
court.
9
well as statutory penalty when a tree confers benefit of
enjoyment on plaintiff aside from the tree’s value as a
marketable commodity). The parties do not dispute at this stage
of the proceedings that the value of the trees lost in this case
is $7,220. Therefore, the maximum penalty available under the
statute is $72,200, in addition to the compensatory damages.
To avoid remand, Palmer has the burden of showing that it is
more likely than not that the value of Nollet’s claims exceeds
$75,000. Because the value of the trees is only $7,200, Palmer
must show that Nollet, if successful, would be entitled to a
forfeiture of at least nine times that amount under RSA 227-J:8.
In McNamara, the New Hampshire Supreme Court affirmed a
penalty of quintuple damages under RSA 227-J:8 in the amount of
$6,000, in addition to compensatory damages in the amount of
$1,200, the market value of the lost trees. See 146 N.H. at 7 3 1 ,
734-35. The court found that the defendant’s actions were
willful, and “amply justifi[ed]” a penalty at the “low end of the
range” of the statute.
Id. at 734. The defendants were informed
numerous times that they were cutting trees on someone else’s
property, they indicated that they did not care, and they
continued to cut after the plaintiffs denied them permission to
do s o .
Id. at 734-35.
Based on the analysis in McNamara, Palmer must show by a
10
preponderance of evidence that his actions were at least willful
and would justify a penalty larger than that the quintuple
damages awarded in McNamara. Palmer has made no showing of
willfulness or of any other circumstances that would support an
award of nine or ten times the value of the trees.
II. Count II
In Count I I , the negligent trespass claim, Nollet also seeks
compensatory and statutory damages pursuant to RSA 227-J:8. For
the reasons discussed above, Palmer has not met his burden of
showing by a preponderance of the evidence that Nollet, if
successful, would be entitled to a penalty under RSA 227-J:8
sufficient to elevate the amount in controversy beyond the
$75,000 threshold for the intentional trespass claim.
Furthermore, negligent trespass would result in an even lower
showing of wilfulness, and consequently a smaller penalty under
RSA 227-J:8. See McNamara, 146 N.H. at 734.
The court concludes that Palmer has not shown by a
preponderance of evidence that the amount in controversy in this
case exceeds $75,000, as required to maintain diversity
jurisdiction under 28 U.S.C. § 1332(a). The case is dismissed
for lack of subject matter jurisdiction and remanded to state
court, pursuant to
28 U.S.C. § 1447(c).
11
Conclusion
For the foregoing reasons, the plaintiff’s motion to remand
to state court (document n o . 5 ) is granted. In light of this
ruling, the defendant’s motion to dismiss for failure to state a
claim is moot. The clerk shall enter judgment accordingly and
close the case.
SO ORDERED.
Joseph A . DiClerico, J r .
District Judge
July 1 8 , 2002
cc: Lawrence M. Edelman, Esquire
John P. McGee Jr., Esquire
12
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Elaine Nollet
v. Civil N o . 02-265-JD
John Palmer
PROCEDURAL ORDER
On page 12 of the court’s order issued on July 1 8 , 2002, the
phrase “enter judgment accordingly and” shall be struck from the
last sentence on said page.
SO ORDERED.
Joseph A . DiClerico, Jr.
United States District Judge
July 1 9 , 2002
cc: Lawrence M. Edelman, Esquire
John P. McGee Jr., Esquire
