UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Robert Lowe

v. Civil No. 08-cv-00013-JL 

Opinion No. 2008 DNH 050

Sears Holding Corporation

O R D E R

The plaintiff, Robert Lowe, commenced this suit in

Hillsborough County Superior Court against his former employer,

Sears Holding Corporation, alleging wrongful termination under

New Hampshire law. Sears then removed the action to this court,

invoking its diversity jurisdiction. See 28 U.S.C. § 1332(a)(1). 

Lowe has moved to remand the action to the state court, see id.

§ 1447(c), arguing that it fails to satisfy the amount in

controversy requirement for diversity jurisdiction, $75,000, see

id. § 1332(a).

As the party seeking to proceed in this court, Sears has the

burden to show the prerequisites for subject-matter jurisdiction,

including the necessary amount in controversy. See, e.g.,

Stewart v. Tupperware Corp., 356 F.3d 335, 338 (1st Cir. 2004). 

Where, as here, the complaint does not put any number on the

plaintiff’s claimed damages, this court requires the removing

defendant to show by a preponderance of the evidence that the

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amount in controversy exceeds the jurisdictional minimum. See

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

2004) (collecting cases).

Lowe alleges that, during his efforts to secure a promotion,

he made what he believed were confidential complaints about his

supervisor which nevertheless made their way back to him. Lowe

was soon fired, on May 25, 2007. He claims that his firing was

motivated by bad faith, malice, and retaliation, and resulted

from his performing acts that public policy would encourage, thus

giving rise to a common-law wrongful termination claim under New

Hampshire law, see Cloutier v. Great Atl. & Pac. Tea Co., 121

N.H. 915, 921-22 (1981). Lowe alleges that he “has suffered and

continues to suffer, substantial injury and damage, including but

not limited to, lost wages and benefits, lost earning capacity,

[and] future lost wages and benefits.” He also seeks “punitive

and enhanced compensatory damages.”

Though the amount in controversy in a case removed to

federal court depends on the circumstances existing at the time

of removal, see Magerer v. John Sexton & Co., 912 F.2d 525, 529

(1st Cir. 1990), the calculation includes monies not yet due the

plaintiff at that point -- so long as the “judgment will clearly

and finally create an obligation to pay, over a number of years,

a sum in excess of the jurisdictional amount, even though future

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events may alter or cut off the defendant’s obligation.” 14B

Charles Alan Wright et al., Federal Practice & Procedure § 3702,

at 87 (3d ed. 1998). The amount in controversy in a wrongful

discharge suit, then, includes what the plaintiff would have

earned but for the termination of his employment, even if those

sums had not yet become due at the time of removal. See Hardemon

v. City of Boston, 144 F.3d 24, 26-27 (1st Cir. 1998); see also

White v. FCI USA, Inc., 319 F.3d 672, 675-76 (5th Cir. 2003). 

With its objection to the motion to remand, Sears has

submitted an affidavit from Lowe’s supervisor stating that, at

the time of Lowe’s termination, he was earning an annual salary

of nearly $96,000, in addition to insurance benefits. So the

value of Lowe’s claim for lost wages alone exceeds $75,000. See,

e.g., White, 319 F.3d at 675-76. Lowe does not dispute the

affidavit, which suffices to show by a preponderance of the

evidence that his case meets the amount in controversy

requirement. Instead, he submits an affidavit from his counsel

attesting that they “will not be seeking a claim in excess of

$75,000.00 exclusive of interests [sic] and costs if the claim is

remanded to State Court.” This representation has no bearing on

the amount in controversy analysis.

The Supreme Court has held that “events occurring subsequent

to removal which reduce the amount recoverable, whether beyond

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the plaintiff’s control or the result of his volition, do not

oust the district court’s jurisdiction” -- including that “the

plaintiff after removal, by stipulation, by affidavit, or by

amendment of his pleadings, reduces the claim below the requisite

amount.” St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S.

283, 291-93 (1938) (footnotes omitted). A number of circuits

have held accordingly that, where a plaintiff files suit in state

court without limiting his potential recovery below the threshold

for federal subject-matter jurisdiction, he may not attempt to do

so after the case has been removed to federal court. See, e.g.,

Werwinski v. Ford Motor Co., 286 F.3d 661, 667 (3d Cir. 2002);

Gebbia v. Wal-Mart Stores, Inc., 233 F.3d 880, 883 (5th Cir.

2000); Rogers v. Wal-Mart Stores, Inc., 230 F.3d 868, 872 (6th

Cir. 2000); In re Shell Oil Co., 970 F.2d 355, 356 (7th Cir.

1992); 14B Wright, supra, § 3702, 63-68; but see Abrego Abrego v.

Dow Chem. Co., 443 F.3d 676, 690-91 (9th Cir. 2006) (stating in

dicta that “it is clearly appropriate for the district courts, in

their discretion, to accept certain post-removal admissions as

determinative of the amount in controversy”).

Though the First Circuit has yet to pass on this issue, one

of this court’s sister districts has agreed with the majority

view “that plaintiffs may not change the amount in controversy

after removal in an effort to defeat federal jurisdiction.” 

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The court in Satterfield recognized that the St. Paul

decision does not foreclose a plaintiff from clarifying the

amount in controversy by way of post-removal filings. 334 F.

Supp. 2d at 4-5; see also, e.g., 14B Wright, supra, § 3702, at

70. Here, however, Lowe’s complaint is hardly ambiguous as to

the kinds of damages he is seeking, and his counsel’s affidavit

does not purport to clarify his claim, but to limit it in the

event remand is granted. That is not permitted under St. Paul. 

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One district court has held that the St. Paul decision was

abrogated by the subsequent amendment of 28 U.S.C. § 1447(c) to

provide for remand “[i]f at any time before final judgment it

appears that the district court lacks subject matter

jurisdiction.” Villano ex rel. Villano v. Kohl’s Dep’t Stores,

Inc., 362 F. Supp. 2d 418, 420 (S.D.N.Y. 2005). But this view

has not found any adherents, even among other judges in the same

district. See Purple Passion, Inc. v. RCN Telecom Servs., Inc.,

406 F. Supp. 2d 245, 246-47 (S.D.N.Y. 2005) (disagreeing with

Villano and citing, inter alia, contrary circuit cases). 

5

Satterfield v. F.W. Webb, Inc., 334 F. Supp. 2d 1, 4 (D. Me.

2004).1

 This court agrees that this rule makes eminent sense

and, in any event, is dictated by the Supreme Court’s decision in

St. Paul.2 As the Court there explained, “[i]f the plaintiff

could, no matter how bona fide his original claim in the state

court, reduce the amount of his demand to defeat federal

jurisdiction the defendant’s supposed statutory right of removal

would be subject to the plaintiff’s caprice.” 303 U.S. at 294. 

Lowe’s motion to remand (document no. 6) is DENIED.

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SO ORDERED.

____________________________

Joseph N. Laplante

United States District Judge

March 4, 2008

cc: Elizabeth B. Olcott, Esq.

Peter Bennett, Esq.

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