Old Wellington Road Apartments, LLC v. Desire et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Old Wellington Road Apartments, LLC
v. 	Case No. 25-cv-352-JL-AJ
Fedenord Desire and Hervens Desire
REPORT AND RECOMMENDATION
Plaintiff Old Wellington Road Apartments, LLC initiated
this action in New Hampshire state court as an eviction action.
See Landlord Tenant Writ (Doc. No. 1-1). 	Defendants Fedenord
and Hervens Desire removed the matter to this court. 	See Notice
of Removal (Doc. No. 1). 	Pending before the court is Hervens
Desire’s motion to proceed without prepayment of fees and costs.
See In Forma Pauperis Petition (Doc. No. 2). 	Fedenord Desire
did not file a similar motion or pay the filing fee.
BACKGROUND
On August 19, 2025, plaintiff filed a landlord and tenant
writ in the 9th Circuit – District Division – Manchester. 	Old
Wellington Road Apartments, LLC v. Desire, et al., 456-2025-LT-
00794. 	Plaintiff, through the writ, sought to evict defendants.
On September 17, 2025, defendants removed the action to this
court.
Case 1:25-cv-00352-JL-AJ Document 3 Filed 11/18/25 Page 1 of 6

2
ANALYSIS
Before ruling on Hervens Desire’s motion, the court reviews
its subject matter jurisdiction. 	Federal courts are courts of
limited jurisdiction and are authorized to consider and decide
only those cases that fall within the scope of their
jurisdiction. 	Kokkonen v. Guardian Life Ins. Co. of Am., 511
U.S. 375, 377 (1994); Lawless v. Steward Health Care Sys., LLC,
894 F.3d 9, 16 (1st Cir. 2018) (“A court without jurisdiction is
like a king without a kingdom: both are powerless to
act.”). 	For that reason, a court “is duty-bound to notice, and
act upon, defects in its subject matter jurisdiction sua
sponte.” 	Spooner v. EEN, Inc., 644 F.3d 62, 67 (1st Cir. 2011);
see also Fed. R. Civ. P. 12(h)(3) (“If the court determines at
any time that it lacks subject-matter jurisdiction, the court
must dismiss the action.”). 	Subject matter jurisdiction “is
never presumed.” 	Fafel v. Dipaola, 399 F.3d 403, 410 (1st Cir.
2005) (citation omitted). 	If jurisdiction is lacking, a court
can proceed no further in the case. 	Godin v. Schencks, 629 F.3d
79, 83 (1st Cir. 2010).
“[T]he party invoking the jurisdiction of a federal court
carries the burden of proving its existence.” 	Calderon-Serra v.
Wilmington Tr. Co., 715 F.3d 14, 17 (1st Cir. 2013) (citation
omitted). 	In the context of removal, the court assesses subject
matter jurisdiction by considering “the claims in the state
Case 1:25-cv-00352-JL-AJ Document 3 Filed 11/18/25 Page 2 of 6

3
court complaint as they existed at the time of removal.”
Lawless, 894 F.3d at 17 (quotation omitted).
For the court to have jurisdiction, defendants must
establish that plaintiff’s writ raises a federal question or
that the court has diversity jurisdiction. 	See 28 U.S.C. § 1331
(federal question) and § 1332 (diversity). 	Upon review, the
writ invokes neither.
There is no claim in plaintiff’s state court landlord and
tenant writ that presents a federal question upon which the
court can establish its subject matter jurisdiction. 	See RSA
540:13 (landlord/tenant eviction writs). 	Defendants contend
that the court has subject matter jurisdiction over this action
because “[t]he [c]omplaint asserts claims arising under the
following federal laws: a. The Fair Debt Collection Practices
Act (FDCPA), 15 U.S.C. § 1692 et seq.; b. The Fair Housing Act,
42 U.S.C. § 3601 et seq.; c. The Consumer Leasing Act, 15 U.S.C.
§ 1667 et seq.” 	They argue that the ”claims” present federal
questions within the meaning of 28 U.S.C. § 1331. 	The
defendants’ position is not supported by a plain reading of the
writ. 	The only reference to federal law contained within the
writ is certifications of compliance with federal law protecting
tenants. 	The writ itself, however, is based solely on state law
authorizing evictions. 	Plaintiff’s landlord and tenant writ
Case 1:25-cv-00352-JL-AJ Document 3 Filed 11/18/25 Page 3 of 6

4
does not invoke a question of federal law. 	The court, thus,
lacks federal question jurisdiction.
This determination is in accord with other decisions from
this court under similar circumstances. 	Madhu Estates, LLC v.
Tompson, No. 18-cv-555-PB, 2018 WL 3997116, at *2 (D.N.H. Aug.
7, 2018) (recommending remand where defendants removed an
eviction proceeding arising under state law, concluding “[t]here
is no federal claim in the landlord tenant petition that could
provide grounds for exercising federal question jurisdiction
over this matter”); Fed. Nat. Mortgage Ass’n v. Tompson, No. 17-
cv-0699-SM, 2018 WL 2426638, at *3 (D.N.H. May 21, 2018)
(“Plaintiff’s eviction is based on New Hampshire law, and does
not implicate a federal question on its face.”); see also
Savannah Midtown LLC v. McDonald, No. 1:13-cv-3530-WSD, 2013 WL
6196559, at *1 (N.D. Ga. Nov. 27, 2013) (remanding at in forma
pauperis stage where pro se defendant removed state eviction
action on the basis of federal question jurisdiction).
To the extent it is the defendants’ defenses upon which
they rely to establish federal question jurisdiction, that is an
impermissible basis. 	See R.I. Fishermen’s Alliance, Inc. v.
R.I. Dept. of Env’t Mgmt., 585 F.3d 42, 48 (1st Cir. 2009) (“The
existence of a federal defense to a state-law cause of action
will not suffice [to establish jurisdiction].”).
Case 1:25-cv-00352-JL-AJ Document 3 Filed 11/18/25 Page 4 of 6

5
The court likewise lacks diversity jurisdiction. Defendants
do not put forward any facts or arguments to establish diversity
jurisdiction. 	Instead, the record indicates that both parties
are New Hampshire citizens. 	See BRT Mgmt. LLC v. Malden Storage
LLC, 68 F.4th 691, 695 (1st Cir. 2023) (“[D]iversity must be
complete; that is, no plaintiff may be a citizen of the same
state as any defendant.”).
Accordingly, because defendantsthe party seeking to invoke
federal jurisdictionhave not established the applicability of
federal question or diversity jurisdiction, the district judge
should remand this matter back to state court for failure to
invoke this court’s subject matter jurisdiction. 	See Madhu
Estates, LLC, 2018 WL 3997116, at *2 (“Remand to the state
courts is required if, at any time, it appears that the district
court lacks jurisdiction over the case.”). 	Should the district
judge adopt this recommendation, Hervens Desire’s motion to
proceed in forma pauperis can be denied as moot.
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. 	Only those issues raised in the objection(s) to
this Report and Recommendation are subject to review in the
district court. 	See Sch. Union No. 37 v. United Nat'l Ins. Co.,
617 F.3d 554, 564 (1st Cir. 2010). 	Any issues not preserved by
Case 1:25-cv-00352-JL-AJ Document 3 Filed 11/18/25 Page 5 of 6

6
such objection(s) are precluded on appeal. 	See id. 	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
November 18, 2025
cc: 	Fedenord Desire, pro se
Hervens Desire, pro se
Case 1:25-cv-00352-JL-AJ Document 3 Filed 11/18/25 Page 6 of 6