UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

James P. Hart

v. Civil No. 05-cv-148-JD

Performance Marketing, Inc.

O R D E R

James P. Hart brought suit in state court, alleging that his

former employer, Performance Marketing, Inc., breached his

employment contract or, alternatively, wrongfully discharged him

because he reported a work accident to the Occupational Safety

and Health Administration and to the Lebanon police. Performance

Marketing, Inc., removed the case to this court, asserting

subject matter jurisdiction based on a federal question. Hart

sought remand on the grounds that he had not alleged a federal

claim and that the amount in controversy was less than $75,000. 

Performance objected to remand, asserting that Hart’s claims were

based on a federal question because he alleges that he was

discharged after filing an Occupational Health and Safety Act

(“OSHA”) complaint. 

The magistrate judge denied Hart’s motion to remand on the

grounds stated by Performance. Hart objects to the magistrate

judge’s decision denying remand. Performance responds to Hart’s

objection, again asserting that Hart alleges a whistleblower

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claim derived from OSHA. 

Contrary to Performance’s argument and the magistrate

judge’s ruling, it appears that Hart has not stated a federal

claim. In McElroy v. SOS Int’l, Inc., 730 F. Supp. 803 (N.D.

Ill. 1989), relied upon by Performance, the court concluded the

plaintiff stated a federal claim because he relied exclusively on

OSHA without making any reference to state law. In this case,

Hart’s wrongful discharge claim and his breach of contract claim

arise under New Hampshire law. Although he references OSHA in

his declaration, he does not assert a claim under OSHA. See,

e.g., Sandoval v. N.M. Tech. Group, 174 F. Supp. 2d 1224, 1233

(D.N.M. 2001); Kozar v. AT&T, 923 F. Supp. 67, 70 (D.N.J. 1996).

Therefore, subject matter jurisdiction does not exist under 28

U.S.C. § 1331.

In reviewing the declaration, however, the court noted that

Hart is a Vermont resident while Performance is located in New

Hampshire. Therefore, if the parties are citizens of different

states, as it appears, and the amount in controversy equals or

exceeds $75,000, subject matter jurisdiction may exist under 28

U.S.C. § 1332. Hart asserts that the amount in controversy

requirement is not met in this case. The party seeking removal,

Performance in this case, bears the burden of showing that

subject matter jurisdiction exists. Rossello-Gonzalez v.

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Calderon-Serra, 398 F.3d 1, 11 (1st Cir. 2005); Warner v.

Atkinson Freight Lines Corp., 350 F. Supp. 2d 108, 114 (D. Me.

2004); Evans v. Yum Brands, Inc., 326 F. Supp. 2d 214, 219-20

(D.N.H. 2004). A question remains as to whether subject matter

jurisdiction exists or whether the case must be remanded to state

court.

Conclusion

For the foregoing reasons, the magistrate judge’s decision

denying the plaintiff’s motion to remand (document no. 5) is

vacated. The defendant shall file a memorandum on or before June

24, 2005, in support of its assertion of subject matter

jurisdiction. The plaintiff will then have ten days to file a

response. 

SO ORDERED.

Joseph A. DiClerico, Jr.

United States District Judge

June 3, 2005

cc: K. William Clauson, Esquire

Debra Weiss Ford, Esquire

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