DiChiara v. Salem, NH, Town of et al

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Stephen DiChiara,
Plaintiff
v. 	Case No. 22-cv-131-SM
Opinion No. 2022 DNH 078
The Town of Salem and
The New Hampshire Attorney General,
Defendants
O R D E R
Stephen DiChiara brings this action against the Town of
Salem and the State of New Hampshire.1 	In his complaint,
DiChiara advances a variety of claims under the United States
Constitution, the New Hampshire Constitution, and New Hampshire
common law. 	He seeks both monetary and injunctive relief.
Shortly after DiChiara filed his writ in Merrimack Superior
Court, the Town of Salem removed the proceeding to this court.
But, before doing so, the Town did not obtain the State’s
consent to removal. 	The State points to that failure and,
citing the “unanimity requirement” of 28 U.S.C. § 1446(b)(2)(A),
1 	The complaint makes plain that DiChiara is proceeding
against the New Hampshire Attorney General solely in his
official capacity. 	Consequently, the State is the true party in
interest.
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moves to remand this proceeding to the state court. 	Not
surprisingly, DiChiara agrees with the State and urges the court
to remand this entire action to his preferred forum. 	The Town
of Salem, however, would rather litigate DiChiara’s claims in
this forum and objects to remand. 	According to the Town, the
State is likely immune from some or all of DiChiara’s claims by
virtue of the Eleventh Amendment. 	Consequently, says the Town,
the State’s consent to removal was not necessary.
There is, to be sure, support for the Town’s position that
the State’s consent to removal was not necessary. 	But there is
also arguable support for the State’s view that remand is
appropriate - at least as to DiChiara’s claims against the
State. 	The legal precedent upon which the parties rely in
support of their various arguments either predates or ignores a
2011 amendment to the federal removal statute. 	And, if that
amendment applies to the circumstances presented in this case,
then resolution of the State’s motion to remand is not as
straightforward as any of the parties suggests.
Discussion
In its motion, the State seeks remand of the entire case to
state court. 	That, however, would seem to be inconsistent with
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the provisions of the federal removal statute, which states, in
relevant part, that:
(1) If a civil action includes—
(A) a claim arising under the Constitution, laws,
or treaties of the United States (within the
meaning of section 1331 of this title), and
(B) a claim not within the original or
supplemental jurisdiction of the district court
or a claim that has been made nonremovable by
statute,
the entire action may be removed if the action would
be removable without the inclusion of the claim
described in subparagraph (B).
(2) Upon removal of an action described in paragraph (1),
the district court shall sever from the action all claims
described in paragraph (1)(B) and shall remand the severed
claims to the State court from which the action was
removed. 	Only defendants against whom a claim described in
paragraph (1)(A) has been asserted are required to join in
or consent to the removal under paragraph (1).
28 U.S.C.A. § 1441(c) (emphasis supplied). 	Subsection (c) was
amended by the Federal Courts Jurisdiction and Venue
Clarification Act of 2011, Pub. L. 112–63, Title I, § 103(a),
125 Stat. 758 (December 7, 2011), and would appear to address
the specific circumstances presented in this case. 	See
generally Hunter v. City of Bos., No. CV 22-10549-FDS, 2022 WL
2068188, at *1 (D. Mass. June 8, 2022).
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That is to say, if the Eleventh Amendment shields the State
from one or more of DiChiara’s claims, those claims would not be
“within the original or supplemental jurisdiction of [this]
court.” 	28 U.S.C. § 1441(c)(1)(B). 	See generally Centro de
Periodismo Investigativo, Inc. v. Fin. Oversight & Mgmt. Bd. for
Puerto Rico, 35 F.4th 1, 9 (1st Cir. 2022) (noting that “an
Eleventh Amendment sovereign immunity defense, as asserted here,
is jurisdictional”). 	See also Puerto Rico Aqueduct & Sewer
Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993) (noting
that the Eleventh Amendment represents a “withdrawal of
jurisdiction” from federal courts over claims against
unconsenting States and “effectively confers an immunity from
suit.”). 	That, in turn, would mean that the State’s consent to
removal was not necessary and the Town’s removal of this
proceeding was proper. 	28 U.S.C. § 1441(c)(2). 	But, it would
also mean that those claims against the State as to which
Eleventh Amendment immunity applies must be severed and
remanded. 	Id.
Despite the apparent application of the above-quoted
sections of 28 U.S.C. § 1441(c), none of the parties has
discussed them. 	Nor has the State actually invoked (or formally
waived) its Eleventh Amendment immunity as to any one or more of
DiChiara’s claims. 	For his part, DiChiara has not pointed to
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any statutory waiver(s) of the State’s Eleventh Amendment
immunity that might apply to one or more of his claims.
Consequently, which claims against the State might be barred by
the Eleventh Amendment and, therefore, subject to severance and
remand remains unresolved.
Conclusion
As amended by the Federal Courts Jurisdiction and Venue
Clarification Act of 2011, 28 U.S.C. § 1441(c) provides that,
when a complaint contains a claim that is removable under 28
U.S.C. § 1331 (i.e., one arising under the Constitution, laws,
or treaties of the United States), and a claim that is “not
within the original or supplemental jurisdiction of the district
court,” upon proper removal the court must sever and remand all
claims over which it lacks jurisdiction. 	Because the State has
not addressed that controlling provision, and because it has not
made clear whether it believes the Eleventh Amendment divests
this court of subject matter jurisdiction over some (or all) of
DiChiara’s claims against it, the court is disinclined to grant
the relief the State seeks absent further legal briefing. 	The
State’s Motion to Remand (document no. 10) is, therefore,
necessarily denied – albeit without prejudice.
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Any renewed motion to remand shall address the application,
if any, of 28 U.S.C. § 1441(c) to the circumstances presented in
this case. Specifically, the State should address whether it
asserts Eleventh Amendment immunity with respect to one or more
of plaintiff’s claims, and whether such an assertion implicates
the provisions of 28 U.S.C. §§ 1441(c)(1)(B) and c(2). The Town
(and DiChiara, if he chooses) may file a responsive memorandum
within 15 days of the filing of a renewed motion to remand.
SO ORDERED.
____________________________
Steven J. McAuliffe
United States District Judge
July 6, 2022
cc: 	Counsel of Record
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