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Barbuto v. Advantage Sales & Mktg., LLC

United States District Court, D. Massachusetts

December 4, 2015


          For Cristina Barbuto, Plaintiff: Adam D. Fine, LEAD ATTORNEY, Vicente Sederberg, LLC, Boston, MA; Matthew J. Fogelman, LEAD ATTORNEY, Fogelman & Fogelman, Newton, MA.

         For 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., Birmingham, AL.


         Indira Talwani, United States District Judge.

         I. Introduction

         Plaintiff 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 marijuana.

         ASM 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. Id.[1]

         II. Motion for Remand

         ASM, as 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 [$75.000]" ).

         In 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).

         The 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 (U.S. 1941)).

         Here, 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.

         ASM 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.

         ASM 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 approaches $75,000.

         ASM 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 ...

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