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 105
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.
See 28 U.S.C. §§ 1441 and 1446. 	See also 28 U.S.C. § 1331.
But, before doing so, the Town neglected to obtain the consent
of the other named defendant: the State of New Hampshire.
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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Pointing to that failure and citing the “unanimity requirement”
of 28 U.S.C. § 1446(b)(2)(A), DiChiara asserts that this
proceeding was not properly removed and should be remanded, in
its entirety, to the state court.
The State, on the other hand, invokes its Eleventh
Amendment immunity and urges the court to dismiss all of
DiChiara’s claims against it. 	In the alternative, however, the
State agrees that DiChiara’s claims against it should be
resolved in state court and says the court should sever and
remand them to the state court. 	See 28 U.S.C. § 1441(c)(2).
Finally, the Town of Salem does not object to the remand of
DiChiara’s claims against the State, but urges the court to
retain jurisdiction over the claims advanced against it. 	Not
surprising (since it removed this proceeding), the Town of Salem
would prefer to litigate DiChiara’s claims in federal court.
Discussion
The procedural posture of this case is somewhat unusual and
the parties are at odds over the proper (or at least their
preferred) forum in which to litigate DiChiara’s claims.
Turning first to DiChiara’s assertion that this entire
proceeding was improperly removed and should be remanded to
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state court, that view is plainly incorrect. 	The relevant
portions of the federal removal statute provide 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, because the Eleventh Amendment deprives
this court of jurisdiction to hear DiChiara’s claims for
monetary damages against the State, those claims are not “within
the original or supplemental jurisdiction of [this] court.” 	28
U.S.C. § 1441(c)(1)(B). 	See 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.”). 	See also 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”). 	That, in turn, means 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).
The next issue presented is what must be done with
DiChiara’s claims against the State. 	Those for monetary damages
are plainly barred by the Eleventh Amendment, this court lacks
jurisdiction over them, and they must be remanded to state
court. 	Id. 	But, as DiChiara notes, some of his claims seek
prospective equitable relief in the form of an injunction
against the State. 	While it is conceivable that this court
could exercise jurisdiction over DiChiara’s claims for
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injunctive relief - an issue the court need not address - that
would not represent an efficient use of the parties’ time or
judicial resources, given that the monetary claims against the
State cannot be litigated in this forum. 	Moreover, both the
State and DiChiara would prefer to litigate this matter in state
court. 	Accordingly, the court will sever and remand to state
court all of DiChiara’s claims against the State.2
Parenthetically, the court notes that the limited caselaw
upon which DiChiara relies in support of his argument that this
court must retain jurisdiction over his claims against the State
for injunctive relief is not particularly helpful or persuasive.
Those cases deal with claims originally filed against States in
federal court and discuss the authority of federal courts to
issue prospective injunctive relief against state actors. 	They
2 	Although the court need not address the merits of
DiChiara’s claims at this juncture, his request for injunctive
relief against the State of New Hampshire would appear to be
weak. 	The conduct alleged in the complaint is unlikely to be
repeated with respect to DiChiara (and, of course, he cannot
advance hypothetical claims of other citizens). 	Moreover, once
informed of the law’s requirements, state officials can be
presumed to act in a lawful manner and consistent with the
court’s direction, without the need for injunctive relief.
Consequently, federal courts are hesitant to issue injunctions
against state officials that simply direct them to act in a
lawful or constitutional manner. 	See, e.g., LMG R.I. Holdings
v. R.I. Sup. Ct., No. 18-cv-297-SJM-AKJ (R.I.D. Dec. 21, 2018)
(collecting cases); Rideout v. Gardner, 123 F. Supp. 3d 218, 236
(D.N.H. 2015).
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do not address the situation presented here: whether claims
against a State that implicate the State’s Eleventh Amendment
Immunity that have been removed to federal court must be
remanded in their entirety, or whether the federal court may (or
should): (a) dismiss or remand the claims for monetary relief,
and (b) retain jurisdiction over only the claims for prospective
injunctive relief. 	The court is disinclined to unnecessarily
create such piecemeal litigation of DiChiara’s claims against
the State. 	All of his claims against the State of New Hampshire
are properly and most efficiently litigated in the state courts.
Of course, DiChiara’s claims against the Town of Salem will
remain in this forum because, as noted above, those claims were
properly removed. 	But, severance of DiChiara’s claims against
the State cannot be avoided since the State has affirmatively
invoked its Eleventh Amendment immunity and, therefore, this
court lacks jurisdiction over them.
Conclusion
DiChiara’s claims against the Town of Salem were properly
removed from state court and will remain in this court. 	All
claims against the State of New Hampshire, however, shall be
remanded to state court. 	See 28 U.S.C. § 1441(c)(2).
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The State’s “Motion to Dismiss or Alternatively to Remand
the Claims Against it to Merrimack Superior Court” (document no.
16) is granted to the extent it seeks remand. 	In all other
respects, it is denied. 	DiChiara’s “Motion to Add N.H. Attorney
General John Formella Individually as a Defendant” (document no.
18) is denied as moot. 	The Clerk of Court shall sever
DiChiara’s claims against the State of New Hampshire and remand
them to the Merrimack, New Hampshire, State Superior Court.
SO ORDERED.
____________________________
Steven J. McAuliffe
United States District Judge
August 30, 2022
cc: 	Counsel of Record
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