Jackson v . Morse CV-03-264-JD 07/28/03
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
William C . Jackson and
Donna Jackson
v. Civil N o . 03-264-JD
Opinion N o . 2003 DNH 131
Charles W . Morse, J r . and
Ameritrade Holding Corp., Trustee
O R D E R
The plaintiffs, William C . Jackson and Donna Jackson,
brought suit in Belknap County (New Hampshire) Superior Court
alleging claims arising from their financial relationship with
Charles W . Morse, J r . and seeking an attachment of his assets
held by Ameritrade Holding Corporation. Morse, proceeding pro
s e , removed the case to this court under 28 U.S.C. § 1441 and
asserting diversity jurisdiction pursuant to
18 U.S.C. § 1332. 1
The Jacksons move to remand the case, asserting that the action
was not removable for a number of reasons.
On June 2 7 , 2003, Josephine Morse, proceeding pro s e , moved
to intervene in the action. On July 3 , 2003, the Jacksons moved
to stay all further proceedings until the motion to remand was
1
Although Morse indicates in his objection to the Jacksons’
motion to remand that he practiced law at one time, he does not
indicate that he is currently a member of the bar of this or any
other state. In any event, he is proceeding on his own behalf.
decided. The Jacksons did not file any response to Josephine
Morse’s motion to intervene. On July 1 7 , 2003, the magistrate
judge granted Josephine Morse’s motion to intervene due to the
lack of opposition. On July 1 8 , 2003, the magistrate granted the
Jacksons’ motion to stay all further proceeding. The Jacksons
move for reconsideration of the magistrate’s decision to allow
Josephine Morse to intervene.
I. Motion to Remand
Under § 1441(b), a civil action may be removed from state to
federal court, based on the parties’ diversity of citizenship,
only if none of the defendant parties is a citizen of the state
where the action was brought. If the plaintiffs object to
removal and the resident defendant is not present due to
fraudulent joinder, the case must be remanded. See, e.g.,
Hurley v . Motor Coach Indus., 222 F.3d 3 7 7 , 378-79 (7th Cir.
2000); Farm Constr. Servs., Inc. v . Fudge,
831 F.2d 1 8 , 21-22
(1st Cir. 1987); Mills v . Allegiance Health Corp.,
178 F. Supp.
2d 1 , 4 (D. Mass. 2001). A defendant seeking to remove a state
court action also bears the burden of demonstrating that the
federal court has subject matter jurisdiction. See Danca v .
Private Health Care Sys., Inc.,
185 F.3d 1 , 4 (1st Cir. 1999)
In this case, it is undisputed that Morse is a citizen of
2
New Hampshire. Since the action originated in New Hampshire
state court, removal was not proper.
In addition, Morse has not carried his burden of
demonstrating that subject matter jurisdiction exists under §
1332. Under § 1332, the amount in controversy must exceed
$75,000, exclusive of interest and costs. The amount claimed in
the complaint controls the amount in controversy unless the party
seeking to invoke the jurisdiction of the court shows “that it is
not a legal certainty that the claim involves less than the
jurisdictional amount.” Spielman v . Genzyme Corp., 251 F.3d 1 , 5
(1st Cir. 2001 (quotation omitted). For purposes of determining
the amount in controversy, attorneys’ fees are considered only if
they are provided by statute or contract.
Id. at 7 .
The Jacksons seek $53,000 in damages and attorneys’ fees,
under a common law theory of recovery, as stated in the state
court writ. Morse provides no basis to believe that it is not a
legal certainty that the Jacksons’ claim involves only $53,000,
less than the requisite jurisdictional amount. Therefore, Morse
has not demonstrated that subject matter jurisdiction exists in
this court.
Because removal of the case was improper under § 1441(b) and
subject matter jurisdiction is lacking, the case must be remanded
to state court. The Jacksons also seek, pursuant to 28 U.S.C. §
3
1447(c), an award of attorneys’ fees and costs incurred because
of the removal proceeding. The court declines to make such an
award under the circumstances of this case.
II. Motion for Reconsideration
Because the case is remanded to state court and this court
lacks subject matter jurisdiction to proceed on any matters in
the case, the order granting Josephine Morse’s motion to
intervene is vacated.
Conclusion
For the foregoing reasons, the plaintiffs’ motion to remand
(document n o . 6 ) and the plaintiffs’ motion for reconsideration
(document n o . 10) are granted. The order entered on July 1 7 ,
2003, granting Josephine Morse’s motion to intervene (document
n o . 4 ) is vacated.
The clerk of court shall remand the action to Belknap County
Superior Court and close the case in this court.
SO ORDERED.
Joseph A . DiClerico, J r .
United States District Judge
July 2 8 , 2003
c c : Thomas B.S. Quarles Jr., Esquire
Charles W . Morse, pro se
Josephine F. Morse, pro se
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