UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Fredrick Amoche, Jon Valliere,

and Diane Dauphinais, for 

themselves and on behalf of all

others similarly situated

v. Civil No. 07-cv-371-JD

Guarantee Trust Life

Insurance Company

O R D E R

 In July of 2007, Fredrick Amoche, Jon Valliere, and Diane

Dauphinais (“plaintiffs”) filed an amended complaint in state

court as a putative class action for breach of contract against

Guarantee Trust Life Insurance Company (“GTL”). GTL removed the

action to this court based on diversity jurisdiction under the

Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1332(d)(2)(A). 

Plaintiffs move the court to remand the proceeding to state

court. GTL objects. 

Case 1:07-cv-00371-JD Document 29 Filed 08/14/08 Page 1 of 18
1Amoche and Valliere later filed a Second Amended

Declaration, adding Diane Dauphinais as an additional party

plaintiff.

2Amoche and Valliere brought claims against GTL for breach

of contract (Count I), breach of the implied covenant of good

faith and fair dealing (Count II), restitution (Count III), and

equitable relief (Count IV).

2

Background

 Fredrick Amoche and Jon Valliere1 brought a class action

lawsuit against GTL alleging various state law contract claims2

in the New Hampshire Superior Court, Hillsborough County,

Northern District (“Superior Court”). GTL, an Illinois company,

is a credit insurer that underwrites “single premium” credit life

insurance and credit disability insurance policies that are

marketed through agents and automobile dealers. Initially, the

plaintiffs sought to represent a class of automobile purchasers

who acquired credit life and/or credit disability insurance

coverage from GTL in New Hampshire only. The plaintiffs alleged

that they paid off their credit-insured loans prior to the

coverage expiration dates, but GTL failed to refund to them the

unused portion of insurance premiums, after the insurance

terminated. 

The Superior Court granted class certification as to Count

I, the breach of contract claim. In May of 2006, the Superior

Court granted summary judgment in favor of the plaintiffs for

Case 1:07-cv-00371-JD Document 29 Filed 08/14/08 Page 2 of 18
3The Superior Court held that GTL breached its promise “that

it would refund unearned premiums to insured debtors who prepaid

their loan indebtedness in full prior to the full scheduled

termination date.” GTL Notice of Removal, Ex. 4, at 11. 

4The plaintiffs name nine creditors as the beneficiaries of

the credit insurance: (1) American Honda Finance Corporation; (2)

DaimlerChrysler Financial Services; (3) Ford Motor Credit

Corporation; (4) General Motors Acceptance Corporation; (5)

Nissan Motor Acceptance Corporation; (6) Toyota Motor Credit

Corporation; (7) Chase Manhattan Automotive Finance Corporation;

(8) Citizens Bank; or (9) Bank of New Hampshire (n/k/a/ TD

Banknorth). 

3

their breach of contract claim on liability only.3 

Over a year later, on July 12, 2007, the plaintiffs filed a

motion seeking leave to file a proposed Third Amended Declaration

to expand the scope of the class. In October, the Superior Court

granted this motion. The class, as defined in the Third Amended

Declaration (hereinafter “Complaint”) is “comprised of all

persons who: (a) Purchased a motor vehicle and allowed the

dealership to obtain vehicle financing for them; (b) The

dealership charged them for GTL credit life and/or credit

disability insurance coverage on the motor vehicle financing; (c)

GTL’s certificate of insurance evidencing the coverage identified

any of the following creditors as the beneficiary4; (d) They paid

off their credit-insured loan prior to the coverage expiration

date; (e) GTL’s files show it never processed the unearned

premium; and (f) They never received their unearned premium.” 

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4

GTL Notice of Removal (“Notice”), Ex. 5, Complaint, ¶36.

 In the October 2007 Order granting the plaintiffs leave to

file an amended declaration, the Superior Court stated

“plaintiffs seek to expand the class to include consumers from

sixteen (16) other states that have enacted consumer protection

legislation similar to that of New Hampshire.” GTL Notice, Ex.

6, at 1. A few days later, the plaintiffs filed a motion to

amend, stating that the “Plaintiffs are not locked into that

number [of sixteen states], but want the [Superior] Court to

amend its order to merely say a range, which would be from 10 to

20 other states. This is not a substantive change, but one that

would more accurately reflect a likely national scenario.” GTL

Notice, Ex. 7, at 1.

On November 15, 2007, GTL filed a Notice of Removal to

remove this case from the Hillsborough County Superior Court to

this court pursuant to CAFA, based on diversity jurisdiction. 

The plaintiffs moved to remand the case to state court. GTL

objected to the plaintiffs’ motion to remand, attaching an

affidavit from Reed Gass, the Vice President of the Credit

Insurance Division of GTL. The plaintiffs filed a reply. 

Case 1:07-cv-00371-JD Document 29 Filed 08/14/08 Page 4 of 18
5

 Discussion

GTL asserts that removal to federal court is warranted under

CAFA because it is an Illinois corporation and the amount in

controversy exceeds the statutory minimum. The plaintiffs

contend that the court should remand the case to state court

because GTL has not demonstrated that the amount in controversy

exceeds five million dollars.

A. Standard of Review

 CAFA “added a new provision governing diversity

jurisdiction, which requires that the amount in controversy

exceed $5,000,000.” Scott v. First Am. Title Ins. Co., 2007 WL

135909, at *1 (D.N.H. Jan. 17, 2007) (citing § 1332(d)(2)). 

“That amount is determined based on the aggregate amount of the

class members’ claims.” Id. (citing Frazier v. Pioneer Americas

LLC, 455 F.3d 542, 545 (5th Cir. 2006)). “Despite the new

requirements under [CAFA], the burden remains on the defendant in

a removed case to establish that federal subject matter

jurisdiction exists.” Scott, 2007 WL 135909, at *1. 

Where a plaintiff has alleged an unspecified or

indeterminate demand for damages in the complaint, the defendant

must show by a preponderance of the evidence that the amount in

Case 1:07-cv-00371-JD Document 29 Filed 08/14/08 Page 5 of 18
5By contrast, if the plaintiff expressly limits the claim

below the jurisdictional amount as a precise statement in the

complaint, the proponent of federal subject matter jurisdiction

must show to a legal certainty that the amount in controversy

exceeds the statutory threshold. Frederico v. Home Depot, 507

F.3d 188, 196-197 (3d Cir. 2007).

6“The First Circuit has not yet decided the standard that

applies when the defendant argues that the plaintiff has

understated her claim for damages to preclude federal

jurisdiction.” Satterfield v F.W. Webb, Inc., 334 F. Supp. 2d.

1, 3 (D. Me. 2004). In this district, the court has applied the

preponderance of the evidence standard when the plaintiff does

not allege a specific amount of damages in the complaint. Evans

v. Yum Brands, Inc., 326 F. Supp. 2d 214, 219-220 (D.N.H. 2004);

see also Lowe v. Sears Holding Corp., 545 F. Supp. 2d. 195, 196

(D.N.H. 2008); Kelleher v. Marvin Lumber & Cedar Co., 2000 WL

1507433, at *2 (D.N.H. June 13, 2000).

6

controversy is above the statutory minimum.5 Miedema v. Maytag

Corp., 450 F.3d 1322, 1330 (11th Cir. 2006); Abrego Abrego v. Dow

Chem. Co., 443 F.3d 676, 683 (9th Cir. 2006). The preponderance

of the evidence standard means “the defendant must provide

evidence establishing that it is more likely than not that the

amount in controversy exceeds [the statutory minium].”6 Sanchez

v. Monumental Life Ins. Co., 102 F.3d 398, 404 (9th Cir. 1996)

(internal quotation marks omitted); Kivikovski v. Smart Prof.

Photocopying Corp., 2001 WL 274763, at *1 (D.N.H. Feb. 20, 2001). 

 In this case, the Complaint does not state a determinate

amount of damages. Instead, the plaintiffs allege that “GTL has

failed to refund over a million dollars in unearned premiums owed

Case 1:07-cv-00371-JD Document 29 Filed 08/14/08 Page 6 of 18
7

to them and the class members.” GTL Notice, Ex. 5, ¶3. The

Complaint does not allege how much over a million dollars is in

dispute. Because the plaintiffs allege an unspecified demand for

damages, the preponderance of the evidence standard applies. 

B. Determining the Amount in Controversy

GTL offers two alternative theories to show that the

jurisdictional amount is satisfied. GTL contends that either:

(1) it is facially apparent from the Complaint that this case

exceeds five million dollars; or (2) the Reed Gass Affidavit,

submitted with GTL’s opposition to the plaintiffs’ motion to

remand, provides sufficient evidence to show that the amount in

controversy exceeds the statutory threshold. The plaintiffs

argue that both of GTL’s theories fail because they are based on

speculation and are insufficient to show by a preponderance of

the evidence that over five million dollars are in dispute. 

The preponderance of the evidence standard “may be fulfilled

in one of two ways.” Garcia v. Koch Oil Co. of Texas Inc., 351

F.3d 636, 639 (5th Cir. 2003). “First, jurisdiction will be

proper if it is facially apparent from the plaintiffs’ complaint

that their claims are likely above [the jurisdictional minimum].” 

Id. (internal quotation marks and citations omitted); see also

Lowdermilk v. U.S. Bank Nat’l Ass’n, 479 F.3d 994, 998 (9th Cir.

Case 1:07-cv-00371-JD Document 29 Filed 08/14/08 Page 7 of 18
7By multiplying two hundred dollars by 25,000, GTL asserts

that this case exceeds five million dollars. 

8

2007) (the court’s “starting point” is the facially apparent

test). Second, if the value of the claim is not facially

apparent from the complaint, the court may consider “summaryjudgment-type” evidence. Yum Brands, 326 F. Supp. 2d. at 220

(quoting Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1336 (5th

Cir. 1996)). Under either standard, if the dollar figure per

claim is apparent from the complaint, “the number of class

members will determine the amount in controversy through the

operation of simple multiplication.” Vanyo v. CitiFinancial,

Inc., 2007 WL 1795959, at *1 (N.D. Ohio June 20, 2007).

1. Facially Apparent

GTL argues that it is facially apparent from the Complaint

that this case exceeds the jurisdictional minimum because the

Complaint estimates that the amount per claim is two hundred

dollars and the allegations in the Complaint suggest that there

will be over 25,000 claimants.7 The plaintiffs disagree,

contending that it is not facially apparent that this case

exceeds the jurisdictional minimum because: (1) GTL’s calculation

is based on speculation and (2) the Complaint alleges that “over

a million dollars” are in dispute and does not expressly state

Case 1:07-cv-00371-JD Document 29 Filed 08/14/08 Page 8 of 18
8In reply, GTL argues that the plaintiffs have

mischaracterized the allegations in their pleadings by reading in

limitations that do not appear in the Complaint to limit the

amount in controversy. The court did not consider any changes to

the allegations in the Complaint because plaintiffs may not alter

the amount in controversy post-removal to avoid federal

jurisdiction. Spielman v. Genzyme Corp., 251 F.3d 1, 5 (1st Cir.

2001)(quoting St. Paul Mercury Indemn. Co. v. Red Cab Co., 303

U.S. 283, 289-90 (1938))(“events occurring subsequent to the

institution of suit which reduce the amount recoverable below the

statutory limit do not oust jurisdiction”). 

9

that over five million dollars are in controversy.8

“‘[W]here the district court is making the facially apparent

determination, the proper procedure is to look only at the face

of the complaint[.]’” Yum Brands, 326 F. Supp. 2d. at 220

(quoting Allen, 63 F.3d at 1336). The defendant may rely solely

on the plaintiffs’ allegations in the complaint without offering

additional evidence. Yum Brands, 326 F. Supp. 2d. at 220. A

defendant’s “simple say-so,” however, without sufficient

information in the complaint, will not suffice to meet the

facially apparent test. Id.; see also Valdez v. Allstate Ins.

Co., 372 F.3d 1115, 1117 (9th Cir. 2004)(court held that it was

not facially apparent that case exceeded $75,000 minimum where

“the only discrete sum requested” in the plaintiff’s complaint is

“general damages . . . in excess of $50,000"). 

In this case, the plaintiffs’ Complaint does not seek a

specific amount of damages but instead alleges that “GTL has

Case 1:07-cv-00371-JD Document 29 Filed 08/14/08 Page 9 of 18
9GTL has not submitted any other evidence to support

removal.

10

failed to refund over a million dollars.” GTL Notice, Ex. 5, ¶3

(emphasis supplied). Although the Complaint alleges that each

claim is approximately two hundred dollars, the Complaint is far

less specific as to the number of claimants. GTL’s conclusion

that there are over 25,000 claimants is based on conjecture

because the Complaint does not allege what “a substantial

percentage” of “hundreds of thousands” of credit insurance

certificates is except for stating that the class includes

“thousands of members” and “is composed of persons who bought

GTL’s credit insurance from motor vehicle dealers throughout New

Hampshire and a number of other states.” GTL Notice, Ex. 5, ¶3

and ¶39(a) and (e)(iii) (emphasis supplied). Because the

Complaint does not allege a specific or determinate number of

claimants, a simple multiplication cannot be done and it is not

facially apparent from the Complaint that there are over five

million dollars at stake in this litigation. 

2. Summary Judgment-Type Evidence

GTL also argues that removal is warranted based on the Reed

Gass affidavit which was not provided in its original removal

notice.9 Reed Gass is the Vice President of the Credit Insurance

Case 1:07-cv-00371-JD Document 29 Filed 08/14/08 Page 10 of 18
10In contrast, the Eleventh Circuit requires the defendant

to establish that removal is proper solely on the basis of the

notice of removal. Lowery v. Alabama Power Co., 483 F.3d 1184,

1215-1217 (11th Cir. 2007).

11

Division at GTL and has held that position since November 1,

2005. Gass concludes that the amount in controversy in this case

“almost certainly exceeds $5 million” based on two theories. 

First, he argues that the jurisdictional minimum is satisfied

because GTL conducts business in forty-one states and the credit

finance companies listed in the Complaint conduct business

nationwide. Second, Gass concludes that the amount in

controversy exceeds five million dollars because GTL has paid

$452,472.29 in credit insurance refunds in New Hampshire alone. 

The plaintiffs disagree with both of Gass’s conclusions. 

When the facially apparent test is not satisfied, the

defendant must offer summary-judgment-type evidence that the

amount in controversy exceeds the jurisdictional minimum. Yum

Brands, 326 F. Supp. 2d. at 220. The defendant may offer such

evidence after filing the notice of removal as long as the

evidence is relevant to the amount in controversy at the time of

removal.10 Valdez, 372 F.3d at 1117; Yum Brands, 326 F. Supp.

2d. at 220. A defendant may prove the jurisdictional amount by

providing, “‘contentions, interrogatories or admissions in state

court[;] by calculation from the complaint’s allegations[;] by

Case 1:07-cv-00371-JD Document 29 Filed 08/14/08 Page 11 of 18
11Although the court in Lowdermilk applied the legal

certainty test, the court’s language cautioning courts to reject

a defendant’s evidence that is based on speculation and

conjecture is applicable when a court utilizes the preponderance

of the evidence standard. See e.g. Miedema, 450 F.3d at 1332.

12

reference to the plaintiff’s informal estimates or settlement

demands[;] or by introducing evidence, in the form of affidavits

from the defendant’s employees about how much it would cost to

satisfy the plaintiff’s demands.’” McPhail v. Deere & Co., 529

F.3d. 947, 954 (10th Cir. 2008) (quoting Meridian Sec. Ins. Co.

v. Sadowski, 441 F.3d 536, 541-42 (7th Cir. 2006)). 

Absent such evidence, or if the defendant relies on

guesswork, removal will not be warranted because a court “cannot

base [its] jurisdiction on [a] [d]efendant’s speculation and

conjecture.”11 Lowdermilk, 479 F.3d at 1002. A court cannot

rely on conjecture because “[u]ncertainties regarding the amount

in controversy are resolved in favor of remand.” Nollet v.

Palmer, 2002 WL 1674379, at *2 (D.N.H. July 18, 2002); see e.g.

Miedema, 450 F.3d at 1332 (where defendant’s declaration was not

based on actual data and was “merely a guess,” court held that

“great uncertainty” remained about the amount in controversy

requiring a remand to state court). 

In this case, the Gass affidavit provides facts that are

relevant to the amount in controversy at the time of removal,

Case 1:07-cv-00371-JD Document 29 Filed 08/14/08 Page 12 of 18
12Gass explains that the reason that GTL cannot quantify the

amount of potential purchasers who are entitled to a refund is

“because the primary situation in which an unearned premium would

not have been paid occurs when GTL does not receive notice from

the insured or the loan holder or lender that the underlying loan

was paid prior to the coverage expiration date[.]” GTL Opp., Ex.

1, ¶12 (emphasis in original). 

13

November 15, 2007, and therefore, may be considered. Gass

concludes that the claims will exceed five million dollars

because GTL conducts business in forty-one states and because of

the “volume of motor vehicle financing” and the “nationwide

scope” of the credit finance companies listed in the Complaint

that are identified as the beneficiaries of the GTL credit

insurance. GTL Opp., Ex. 1, Gass. Aff., ¶11. The allegations in

the plaintiffs’ Complaint, however, relate to those consumers who

purchased GTL credit insurance through certain listed agents or

dealers and were entitled to a refund of the unearned premiums. 

Because of these limitations, the class is not as broad as all

GTL customers in every state where GTL conducts business who also

identify one of the motor vehicle financing companies listed in

the Complaint as the beneficiary of the insurance. 

 Gass admits that GTL “cannot itemize and quantify the

specific number of persons who paid their loans prior to the

coverage expiration date and who did not receive an unearned

premium refund.”12 GTL Opp., Ex. 1, ¶12. Without such evidence,

Case 1:07-cv-00371-JD Document 29 Filed 08/14/08 Page 13 of 18
14

Gass’s conclusion that the class size is composed of all GTL

customers in forty-one states is based on speculation. Where a

defendant offers evidence about the class size that is overly

broad and “encompasses a broader universe” of claimants than

alleged in the plaintiff’s complaint, the defendant does not

satisfy its burden. Pittman v. Chase Home Fin., LLC, 2007 WL

2156395, at *4 (N.D. Ohio July 25, 2007). Compare Nowak v.

Innovative Aftermarket Sys. L.P., 2007 WL 2454118, at *5 (E.D.

Mo. Aug. 23 2007)(where “[defendants] offered no evidence

indicating the actual number of persons that are potential class

members nor the exact amount of damages for each of those

persons,” the court held that “defendants’ calculation [wa]s

based on mere speculation”); with Brill v. Countrywide Home

Loans, Inc., 427 F.3d 446, 449 (7th Cir. 2005) (where the maximum

amount per claim was $1500 per offending fax, “Countrywide did

all that is necessary by admitting that one of its employees sent

at least 3,800 fax ads” because $1500 multiplied by 3800 is over

five million dollars). 

Gass’s second theory is that over five million dollars are

in controversy because GTL owes $452,472.29 in credit insurance

refunds to New Hampshire claimants. Gass reasons that New

Hampshire is one of the smaller states where GTL conducts

business and therefore, “most, if not all, combinations of ten to

Case 1:07-cv-00371-JD Document 29 Filed 08/14/08 Page 14 of 18
13Twelve multiplied by $452,472.29 equals $5,429,667.48.

15

twenty states in addition to New Hampshire would have to include

states in which GTL conducts more business than in New

Hampshire.” GTL Opp., Ex. 1, ¶19. He concludes that if just

eleven more states in addition to New Hampshire (totaling twelve)

are included in this lawsuit, the jurisdictional amount will be

satisfied because the amount in controversy will be in “excess of

$5,400,000.”13 Id. 

The plaintiffs, however, have cast doubt on the $452,472.29

figure Gass uses and offer their own estimate that indicates that

the amount GTL has paid in credit refunds in New Hampshire may be

far less. Specifically, the plaintiffs contend that Gass’s

analysis of the New Hampshire data is misleading because: (1) he

includes refunds generated for New Hampshire class members whose

loans were held by creditors not implicated in the class

definition; (2) he ignores state-to-state differences in GTL’s

business practices; (3) he does not factor in differences in the

credit insurance contracts that GTL uses in each state; and (4)

he fails to take into account that many of GTL’s credit insurance

loans are issued directly through credit unions and banks rather

than automobile dealerships which are the only type of loans that

are at issue in this case. 

Case 1:07-cv-00371-JD Document 29 Filed 08/14/08 Page 15 of 18
14Twenty-three multiplied by $221,912 equals $5,103,976. 

15In the plaintiffs’ motion to amend, they estimate that

claimants from ten to twenty states are in the class. Even using

twenty states, the amount in controversy is also below five

million dollars because twenty multiplied by $221,912 equals

$4,438,240. 

16

After removing the creditors that are not implicated in the

class, the plaintiffs contend that GTL has paid at most $221,912

in credit insurance refunds in New Hampshire and that in order to

reach five million dollars worth of damages, GTL would have to

establish that there are claimants from a total of twenty-three

states.14 The Superior Court, however, limited the class size to

sixteen states. Therefore, using the lower amount of New

Hampshire refunds alleged by the plaintiffs, the jurisdictional

amount would be below five million dollars because sixteen states

multiplied by $221,912 equals $3,550,592.15 Where, as here, a

plaintiff successfully rebuts the evidence that the defendant

relies upon, the defendant cannot meet the preponderance of the

evidence burden. See Lowe’s Ok’d Used Cars, Inc. v. Acceptance

Ins. Co., 995 F. Supp. 1388, 1393 (M.D. Al. 1998); see also

Heinhuis v. Wilkes, 2002 WL 1610963, at *4 (E.D. La. July 17,

2002)(unreported decision) (“Having nothing but minimal

offsetting evidence as to the amount in controversy, the Court

concludes that the removing defendants have not met their burden

Case 1:07-cv-00371-JD Document 29 Filed 08/14/08 Page 16 of 18
16On March 25, 2008, the plaintiffs moved for leave to file

a declaration of Edward K. O’Brien, counsel for the plaintiffs. 

On April 7, 2008, GTL objected to this motion. The court did not

consider this declaration in reaching its conclusion. Because

the court determines that remand is necessary, the issues raised

in these motions are now moot and the court need not consider

them. 

17

of establishing that the amount in controversy exceeds the

jurisdictional amount.”). 

The plaintiffs’ theory that the total amount of damages is

less than five million dollars is as persuasive as Gass’s

conclusion that the damages in this case are in excess of

$5,400,000. Without more specific information as to the number

of claimants nationwide or the amount paid by GTL in credit

insurance refunds in states other than New Hampshire, the amount

in controversy is uncertain. Because uncertainties exist

regarding the amount in controversy, doubts must be resolved in

favor of remand. See Nollet, 2002 WL 1674379, at *2.

GTL has failed to show by a preponderance of the evidence

that the amount in controversy exceeds five million dollars. 

Therefore, this court lacks subject matter jurisdiction and this

case must be remanded to state court.16

Case 1:07-cv-00371-JD Document 29 Filed 08/14/08 Page 17 of 18
18

Conclusion

For the foregoing reasons, the plaintiffs’ motion to remand

this case to New Hampshire Superior Court, Hillsborough County,

Northern District (document no. 6) is granted. The clerk of

court shall remand the state case to Hillsborough County Superior

Court, Northern District.

SO ORDERED.

/s/Joseph A. DiClerico, Jr.

Joseph A. DiClerico, Jr.

 United States District Judge

August 14, 2008

cc: Charles G. Douglas, III, Esq.

 Edward K. O'Brien, Esq.

 Jason R.L. Major, Esq.

 Christopher Cole, Esq.

 Francis A. Citera, Esq.

 James P. Harris, Esq.

Case 1:07-cv-00371-JD Document 29 Filed 08/14/08 Page 18 of 18