United States District Court, D. Massachusetts
Cristina Barbuto, Plaintiff: Adam D. Fine, LEAD ATTORNEY,
Vicente Sederberg, LLC, Boston, MA; Matthew J. Fogelman, LEAD
ATTORNEY, Fogelman & Fogelman, Newton, MA.
Advantage Sales and Marketing, LLC, Joanne Meredith Villaruz,
Defendants: Michael K. Clarkson, LEAD ATTORNEY, Ogletree
Deakins Nash Smoak & Stewart, Boston, MA; M. Tae Phillips,
PRO HAC VICE, Ogletree Deakins Nash Smoak & Stewart, P.C.,
Talwani, United States District Judge.
Cristina Barbuto filed this action in the Superior Court of
Suffolk County, Massachusetts, against Defendants Advantage
Sales and Marketing, LLC (" ASM" ) and Joanne
Meredith Villaruz over alleged employment discrimination and
unlawful termination due to Plaintiff's use of medical
removed the matter to this court, asserting diversity
jurisdiction. Notice Removal [#1]. The Notice of Removal
contends that Plaintiff's six state law claims and her
prayer for unspecified damages for lost wages, lost benefits,
liquidated damages, attorneys' fees, emotional distress,
reputational harm, and damage to her future career place the
amount in controversy above $75,000. Notice Removal Ex. 1
(Compl. ¶ ¶ 46, 52, 57, 65, Prayer for Relief at 2)
[#1-1]. Plaintiff moves to remand the matter on the ground
that the required amount in controversy of Case
1:15-cv-13574-IT Document 32 Filed 12/04/15 Page 2 of 7 more
than $75,000 is not met. Pl.'s Mot. Remand [#24].
Plaintiff also moves for costs and fees associated with its
Motion for Remand
the removing party, " has the burden of establishing
that the court has subject matter jurisdiction over the
case." Amoche v. Guar. Trust Life Ins. Co., 556
F.3d 41, 48 (1st Cir. 2009). ASM must show to a "
reasonable probability" that the amount in controversy
exceeds $75,000. Amoche, 556 F.3d
at 50; see also 28 U.S.C. § 1446(c)(2) (where removal is
based on diversity jurisdiction, " the sum demanded in
good faith in the initial pleading shall be deemed to be the
amount in controversy, except that the notice of removal may
assert the amount of controversy" if the state practice
permits recovery of damages in excess of the amount demanded
and " if the district court finds, by the preponderance
of the evidence, that the amount in controversy exceeds
assessing whether ASM has met its burden, the "
determination of the value of the matter in controversy for
purposes of federal jurisdiction is a federal question to be
decided under federal standards" but the court "
must, of course, look to state law to determine the nature
and extent of the right to be enforced.'"
Stewart v. Tupperware Corp., 356 F.3d 335, 339 (1st
Cir 2004)), quoting Horton v. Liberty Mut. Ins. Co.,
367 U.S. 348, 352-53, 81 S.Ct. 1570, 6 L.Ed.2d 890 (1961).
court's assessment " may well require analysis of
what both parties have shown."
Amoche, 556 F.3d at 51 (emphasis in
the original). The court must also adhere to its "
particular responsibility to police the border of federal
jurisdiction." Spielman v. Genzyme Corp., 251
F.3d 1, 4 (1st Cir. 2001). The " removal statute should
be strictly construed against removal."
Rossello-Gonzalez v. Calderon-Serra, 398 F.3d 1, 11
(1st Cir. 2004) (citing Shamrock Oil & Gas Corp. v.
Sheets, 313 U.S. 100, 108, 61 S.Ct. 868, 85 L.Ed. 1214
ASM has not shown to a reasonable probability that the amount
in controversy exceeds $75,000. The only evidence in the
record as to Plaintiff's lost wages is an email attached
to Plaintiff's remand motion. In that email, litigation
counsel for ASM asserts that Plaintiff was " hired to
work for a . . . project [ofJ limited duration." Mot.
Remand Ex. 2. As part of that project, Plaintiff was to work
" 4 weeks (every other week over an 8 week period) 4
days a week, for 4 hours per shift" and to be paid $20
dollars per hour for a total of $1,280. Id.
points to Plaintiff's civil cover sheet which claims
total damages of $72,500. That form lists " lost wages
and compensation" of $50,000. Plaintiffs' complaint,
however, alleges only that: ASM's recruiter told
Plaintiff that she would start off in an entry-level role but
would soon be promoted and that people advance quickly within
the company; Plaintiff was sent an offer letter and accepted
the offer; Plaintiff worked one day on an assignment at Stop
& Shop to promote ASM's customers' products; and
Plaintiff was terminated after that single date of work.
Notice Removal Ex. 1 (Compl. ¶ ¶ 9, 11, 28-29). The
complaint includes no allegations of a contract or implied
contract of employment for any duration or any rate of pay,
let alone substantial pay. Even assuming the allegations
should be given evidentiary weight, they do not show a
reasonable probability that the amount in controversy for
lost wages is greater than the $1,280 set forth in the
e-mail, let alone anywhere near the $50,000 claimed.
points to Plaintiff's claim of other forms of monetary
relief that she is entitled to, such as severe emotional
distress and reputational and career damages. Opp'n
Pl.'s Mot. Remand at 3. As to these damages, the civil
cover sheet lists a total of $22,500. ASM has not brought
forth any evidence showing any different amount in
controversy for such damages. Even accepting the allegations
in the complaint that Plaintiff suffered harm to her
reputation and emotional distress and the valuation of
$22,500 set forth in the civil cover sheet, ASM has not
demonstrated to a reasonable probability that the total
amount in controversy for these damages and the lost wages
also notes that Plaintiff is seeking attorneys' fees. The
court must take into account attorneys' fees when the
award of those fees is authorized by statute.
Spielman, 251 F.3d at 7. Such fees
are authorized here, as Massachusetts General Laws chapter
151B, the basis of counts I-III, states that if " the
court finds for the petitioner, it shall . . . award the
petitioner reasonable attorney's fees and costs unless
special circumstances would render such an award
unjust." Mass. Gen. Laws ch. 151B § 9. The First
Circuit has not directly addressed whether the court should
include in the calculation only attorneys' fees incurred
to date or should predict the reasonable fees that may be
incurred over the course of the entire matter. The First
Circuit's direction more generally, however, is to
determine the amount in controversy " at the time of
removal," Amoche, 556
F.3d at 51 (emphasis in the original). Fees that have not yet
been incurred cannot be said to be in controversy at the time
of removal. Excluding fees that have not yet been incurred is
also consistent with the overall statutory scheme, which
excludes " costs" from the amount of controversy,
an exclusion justified by ...