United States District Court, D. Massachusetts
SOROKIN UNITED STATES DISTRICT JUDGE
8, 2018, Defendants Caliber Home Loans, Inc., U.S. Bank
Trust, N.A., as trustee for LSF9 Master Participation Trust,
and Sandcastle Investments, Inc. (“collectively,
Defendants”) removed this case to this Court. Doc. No.
3 On June 19, 2018, Plaintiff Grazyna Orellana's counsel
wrote a letter to the “Clerk Federal District
Court” asserting that, prior to removal, he filed an
amended complaint reducing his damage claim “below $75,
000” and he asked the Clerk to “confirm that this
case shall be rejected/dismissed as a result.” Doc. No.
Rule of Civil Procedure Rule 41 establishes the framework for
a Plaintiff to dismiss its action in federal court.
Subsection (a)(1)(A) authorizes a Plaintiff to dismiss its
action “Without a Court Order” (italics
in original) provided the Plaintiff files a “notice of
dismissal before the opposing party serves either an answer
or a motion for summary judgment.” Fed.R.Civ.P.
41(a)(1)(A)(i). As of June 19, 2018, the date of
Orellana's submission, no defendant in this case had
filed an answer or motion for summary judgment. Of course a
party may not proceed by way of a letter to Clerk when
asserting that the Court lacks subject matter jurisdiction
and seeking a ruling on the question from the Court.
records establish that the Notice of Removal was filed on ECF
at 12:49 p.m. on June 8, 2018. Doc. No. 3. The record of
proceedings filed by the state court includes a document
titled “Amended Complaint” with a filing date of
June 8, 2018. See Doc. No. 12. Of note, the Amended
Complaint includes a Chapter 93A claim seeking treble damages
and the following statement in bold letters:
Plaintiff agrees to limit her claim to below the
statutory threshold should any Defendant seek to remove this
case to the Federal Court. Doc. No. 12 at 31.
counsel asserts that the Amended Complaint was filed after
defense counsel informed Orellana's counsel of the
removal. See Doc. No. 13 at 1. Orellana's
counsel asserts that he filed the Amended Complaint before
the Notice of Removal was filed. See Doc. No. 10.
the foregoing, the Court makes the following rulings:
1. While Orellana's letter, Doc. No. 10, bears many of
the indicia of a request for voluntary dismissal under Rule
41, an act that was within Orellana's rights at the time
filed, to avoid any ambiguity, Orellana shall file a notice
within seven days stating unequivocally whether Orellana
intended the letter to constitute a voluntary dismissal under
Rule 41(a)(1)(A). If Orellana asserts she intended the notice
as a voluntary dismissal, the Court will treat that as a
concession that Orellana filed the Amended Complaint in state
court after the Notice of Removal was filed in this Court.
Thus, proceeding would require the filing of a new lawsuit in
either state or federal court.
2. The Court has subject matter jurisdiction over this case
whether the operative complaint is the original or amended
complaint. The parties are diverse under both pleadings. The
amount in controversy for purposes of assessing diversity
jurisdiction includes the possibility of treble damages and
attorney fees under Massachusetts General Laws chapter 93A.
Toro v. CSX Intermodal Terminals, Inc., 199
F.Supp.3d 320, 322 (D. Mass. 2016) (citations omitted)
(“amount in controversy includes statutory multipliers
of damages, as well as statutory attorney's
fees.”); accord Law Office of Joseph J. Cariglia,
P.C. v. Jelly, 146 F.Supp.3d 251, 255 (D. Mass. 2015).
Thus, the Amended Complaint, if it is the operative pleading
(i.e. was filed prior to the Notice of Removal), supports
federal diversity jurisdiction in light of the damage
allegation of $70, 000 combined with the request for treble
damages and fees. The same analysis and conclusion apply to
the original complaint.
3. Assuming without deciding that the binding unequivocal
stipulation of a party in its complaint to limit its monetary
recovery to a specific amount below the federal
jurisdictional threshold could establish that there is no
“reasonable probability that the amount in controversy
exceeds [the statutory threshold], ” Romulus v. CVS
Pharmacy, Inc., 770 F.3d 67, 82 (1st Cir. 2014), such a
stipulation is not present in the Amended Complaint. That
Orellana purports to limits her damages “should any
defendant” seek to remove the action to federal court
is not the type of allegation or stipulation that would
defeat a reasonable probability conclusion based on the
remainder of the Amended Complaint.
4. Nonetheless, identifying the operative complaint has some
material significance in this case. If Orellana filed the
amended complaint prior to removal, then it is pending
complaint and defendant must file a new or revised Answer as
its answer responds to the original complaint. On the other
hand, if she filed it after the Notice of Removal then it
would appear to have no pleading significance as it was not
filed in the Court in which the case was pending, although
Orellana could seek to proceed here under Rule 15 with the
Amended Complaint. Accordingly, by July 13, 2018, the parties
shall file a joint statement stating their joint or separate
positions as to the operative pleading and any related
5. The Motion to Stay, Doc. No. 17, is ALLOWED and discovery
is stayed pending resolution both of the foregoing issues and
the pending ...