Marcus et al v. Absolut Affordable Housing, LLC et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Brandon Marcus and
Soveira Marcus
v. 	Case No. 21-cv-493-LM
Absolute Affordable Housing, LLC,
Qiayra Randolph, Selena Randolph, et al
REPORT AND RECOMMENDATION
The defendants, 1 proceeding pro se and in forma pauperis,
removed this eviction proceeding from the New Hampshire Circuit
Court, 7th Circuit, District Division, Rochester (“Rochester
District Court”), asserting federal question and diversity
jurisdiction. 	See Notice of Removal (Doc. No. 1) (“Notice”) ¶
3; 28 U.S.C. § 1441. 	Before the court for preliminary review is
the defendant’s Notice of Removal. 	See LR4.3(d)(2); 28 U.S.C. §
1447(c).
Subject Matter Jurisdiction
A removed case must be remanded to state court if, at any
time, it appears that the district court lacks subject matter
jurisdiction. 28 U.S.C. § 1447(c). 	As relevant here, subject
1 The defendants are: Absolute Affordable Housing, LC, Selena
S. Randolph, Qiayra M. Randolph, Danny Rivera, Harvey R. Keene,
Dakota Taylor, Ivanovich Manana Guzman, and “All Other
Occupants,” a moniker used by Xzavier R. Fleming, who signed the
Notice of Removal. See Notice (Doc. No. 1) at 20 (signature
page), 26 (list of defendants).
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matter jurisdiction can arise in two ways. 	Federal courts have
federal question jurisdiction when an action arises “under the
Constitution, laws, or treaties of the United States.” 	28
U.S.C. § 1331. 	Federal courts have diversity jurisdiction under
28 U.S.C. § 1332(a) when the parties are citizens of different
states and “the matter in controversy exceeds the sum or value
of $75,000, exclusive of interest and costs.” 	§ 1332(a). 	In
the context of disputes over removal jurisdiction, it is the
removing defendant’s burden to show that removal was proper.
See Fayard v. Northeast Vehicle Servs., LLC, 533 F.3d 42, 48
(1st Cir. 2008); see also Acosta—Ramirez v. Banco Popular de
P.R., 712 F.3d 14, 20 (1st Cir. 2013). 	“Furthermore, the
removal statute should be strictly construed, and any doubts
about the propriety of removal should be resolved against the
removal of an action.” 	Int'l Union of Operating Eng'rs, Local
No. 68 Welfare Fund v. AstraZeneca PLC (In re Pharm. Indus.
Average Wholesale Price Litig.), 431 F.Supp.2d 109, 116 (D.
Mass. 2006).
Discussion
Although their Notice is often difficult to follow, the
defendants plainly assert that “there are existing federal
questions and inherent diversity between the parties.” 	Notice
(Doc. No. 1) ¶ 3. 	The court therefore addresses both potential
avenues of subject matter jurisdiction.
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A. 	Diversity Jurisdiction
Federal courts have diversity jurisdiction when the amount
in controversy exceeds $75,000 and the action is between
“citizens of different states.” 	28 U.S.C. § 1332(a). 	In a case
with multiple defendants, the presence in the action of a single
defendant that is a citizen of the same state as the plaintiff
deprives the district court of diversity jurisdiction over the
entire action. 	See Picciotto v. Cont'l Cas. Co., 512 F.3d 9, 21
(1st Cir. 2008).
Here, based on the Landlord and Tenant Writ that the
defendants appended to their Notice (Doc. No. 1) at 23, it
appears that all parties are New Hampshire citizens. 	As the
defendants do not meaningfully address the citizenship question,
the court finds that the defendants have failed to demonstrate
the existence of diversity jurisdiction.
B. 	Federal Question Jurisdiction
The defendants tacitly acknowledge that the state eviction
proceeding is based on state law. 	As best as the court can
determine from the convoluted Notice, the defendants claim that
they have several defenses to eviction that implicate federal
statutory or constitutional law. 	See, e.g., Notice (Doc. No. 1)
at 2 (citing federal lending and housing agencies and statutes
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applicable to mortgages); id. at 7 (referring to landlord-tenant
proceedings as violative of substantive due process).
Under the well-pleaded complaint rule, however, the
“’plaintiff is master of his complaint,’” and “‘a case cannot be
removed if the complaint's allegations are premised only on
local law.’” 	López-Muñoz v. Triple-S Salud, Inc., 754 F.3d 1, 4
(1st Cir. 2014) (citation omitted); see also Vaden v. Discover
Bank, 556 U.S. 49, 54 (2009) (federal court jurisdiction “cannot
be invoked on the basis of a defense or counterclaim”);
Caterpillar, Inc. v. Williams, 482 U.S. 386, 392-93 (1987) (case
cannot be removed to federal court on basis of federal defense).
This case, filed initially in Rochester District Court, is
an eviction proceeding, arising under New Hampshire law. 	There
is no federal claim in the landlord-tenant action that could
provide grounds for exercising federal question jurisdiction
over this matter. 	See Fed. Nat’l Mortg. Ass’n v. Tompson, No.
17-cv-699-SM, 2018 WL 2426638, at *3 (D.N.H. May 21, 2018). 	Nor
has defendant sufficiently explained why resolution of
plaintiff's landlord-tenant claim would require the court to
address an “embedded question of federal law that is both
substantial and disputed.” 	R.I. Fishermen's All., Inc. v. R.I.
Dep't Of Envtl. Mgmt., 585 F.3d 42, 48 (1st Cir. 2009).
Accordingly, the court finds that the defendants have failed to
establish federal question jurisdiction.
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Conclusion
For the foregoing reasons, the district judge should remand
this action to the state court for lack of jurisdiction, and
deny as moot plaintiffs’ motion to remand (Doc. No. 3) and
defendants’ demand for jury trial (Doc. No. 5). 	Any objections
to this Report and Recommendation must be filed within fourteen
days of receipt of this notice. 	See Fed. R. Civ. P. 72(b)(2).
The fourteen-day period may be extended upon motion. Failure to
file specific written objections to the Report and
Recommendation within the specified time waives the right to
appeal the district court's order. 	See Santos-Santos v. Torres-
Centeno, 842 F.3d 163, 168 (1st Cir. 2016).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
July 29, 2021
cc: 	All parties and counsel of record
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