Mullen v. Kissell

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Martha Mullen
v. 	Case No. 20-cv-347-PB
Edward J. Kissell
REPORT AND RECOMMENDATION
Plaintiff Martha Mullen, appearing pro se, has sued her ex-
husband, Edward J. Kissell, seeking enforcement of decisions
made in divorce and child custody proceedings in New Hampshire
state court. 	See Complaint (Doc. No. 1).1 	The complaint is
before this magistrate judge for preliminary review, pursuant to
28 U.S.C. § 1915(e)(2) and LR 4.3(d)(1). 	For the reasons that
follow, the district judge should dismiss this lawsuit.
Preliminary Review Standard
The magistrate judge conducts a preliminary review of
pleadings, like Mullen’s which are filed in forma pauperis. 	See
1Mullen previously sued Kissell in this court seeking relief
from rulings in the same state court proceedings. 	That case was
dismissed for failure to state a federal claim for which relief
may be granted. 	See Mullen v. Kissell, No. 19-cv-1292-SM
(D.N.H. Feb. 19, 2020) (ECF No. 20), approving Report and
Recommendation (D.N.H. Jan. 14, 2020) (ECF No. 14).
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LR 4.3(d). 	The magistrate judge may recommend to the district
judge that one or more claims be dismissed if, among other
things, the court lacks jurisdiction, a defendant is immune from
the relief sought, or the complaint fails to state a claim upon
which relief may be granted. 	See 28 U.S.C. § 1915(e)(2); LR
4.3(d). 	In conducting its preliminary review, the court
construes pro se complaints liberally. 	See Erickson v. Pardus,
551 U.S. 89, 94 (2007) (per curiam). 	The complaint must contain
“sufficient factual matter, accepted as true, to ‘state a claim
to relief.’” 	Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citation omitted). 	The court treats as true all well-pleaded
factual allegations, and construes reasonable inferences in
plaintiff’s favor. 	See Ocasio-Hernández v. Fortuño-Burset, 640
F.3d 1, 12 (1st Cir. 2011).
Discussion
The two-page complaint form is disorganized and difficult
to follow. 	But construing its scattershot allegations in
plaintiff’s favor, it appears that plaintiff is seeking to have
the court enforce various provisions of her divorce decree
related to parenting rights and responsibilities. 	The complaint
states that the (New Hampshire) “Supreme Ct. already affirmed
lower Cts. Order of Family Therapist, Parenting Plan, Seeking
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Overdue Implementation . . .” 	Complaint (Doc. No. 1) at 1. 	She
further asserts that the New Hampshire Supreme Court’s March 16,
2020, Order suspending in-person court proceedings in response
to the COVID-19 pandemic, id. at 13 ¶4, entitles her to pursue
her claim in federal court.
Two factors warrant dismissal of this case. 	First,
plaintiff has failed to assert a basis for subject matter
jurisdiction. 	She has claimed no violation of federal law, see
28 U.S.C. § 1331 (federal question jurisdiction), and the fact
that she and the defendant are both New Hampshire residents
forecloses diversity jurisdiction. 	See 28 U.S.C § 1332(a)(1)
(diversity jurisdiction requires, inter alia, that the parties
be citizens of different states).
Next, plaintiff’s concern about access to the New Hampshire
state court is overstated. 	The order she has attached to her
complaint has a specific exception for child-related orders in
divorce parenting cases. 	March 16, 2020 New Hampshire Supreme
Court Order (Doc. No. 1 at 13) ¶ 4. 	In addition, all judges are
authorized to conduct proceedings by telephone as needed. 	Id. ¶
6. 	There is nothing in the order suggesting that adequate
relief is unavailable in the state court.2
2The court also notes that New Hampshire “law is well
settled that jurisdiction in divorce proceedings is a continuing
one with respect to all subsequent proceedings which arise out
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Conclusion
For the foregoing reasons, the district judge should
dismiss the complaint in its entirety for lack of subject matter
jurisdiction, without prejudice to the plaintiff’s ability to
assert her claims in a state court of competent jurisdiction.
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
March 26, 2020
cc: 	Martha Mullen, pro se
*428 of the original cause of action.” 	Daine v. Daine, 951 A.2d
133, 135 (N.H. 2008) (citing Stritch v. Stritch, 106 213 A.2d
426, 429 (1965) (quotation omitted). 	After granting a divorce,
the court retains jurisdiction to “revise and modify any order
made by it, ... make such new orders as may be necessary, and .
. . award costs as justice may require[.]” N.H. Rev. Stat. Ann.
ch. 458:14.
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