Bisasor v. Donais et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Andre C. Bisasor
v. Civil No. 23-cv-374-JL-TSM
Craig Donais, et al.
REPORT AND RECOMMENDATION
Plaintiff Andre Bisasor, pro se, brought this suit in Massachusetts state court against
defendants Craig Donais; Mary Donais; Donais Law Offices, PLLC; Russell Hilliard; and Upton
& Hatfield LLP, asserting claims for defamation, false light, intentional infliction of emotional
distress, breach of contract, and civil rights violations. Defendant Upton & Hatfield removed the
suit to the District of Massachusetts, which subsequently transferred the matter to this court.
Bisasor moves to remand (doc. nos. 84, 87) to Massachusetts state court, arguing that this court
lacks subject-matter jurisdiction and that Upton & Hatfield’s removal was procedurally improper.1
He also moves for jurisdictional discovery (doc. no. 137) and for entry of default against Russell
Hilliard (doc. no. 85). For the following reasons, the court denies Bisasor’s motion for
jurisdictional discovery and recommends that the district judge deny his motion for default and
motion to remand.
1 Bisasor had difficulty electronically filing his motion to remand and his replies. As a
result, there are several docket entries corresponding to the motion to remand and replies. The
court has considered all of them, including doc. nos. 84, 86, 87, 88, 135, 136, and 138 in evaluating
whether remand is warranted.
Additionally, Bisasor’s replies and his motion for jurisdictional discovery were untimely
because he filed them on December 12, when they were due on December 11. The court construes
Bisasor’s “Declaration of Technical Failure” (doc. no. 134), in which Bisasor describes difficulties
in using CM/ECF and asserts that a “technical failure” prevented him from timely filing the replies,
as a motion to extend time. That motion is granted, and the court has considered Bisasor’s replies
and motion for jurisdictional discovery in full.
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BACKGROUND
The court considered all of the arguments asserted by Bisasor in his motion and reply
filings, even if they are not discussed in detail in this R&R. The court also construed all of
Bisasor’s filings liberally because he proceeds pro se. See Erickson v. Pardus, 551 U.S. 89, 94
(2007).
This suit, in summary, relates to a series of events that began in 2017, when Craig Donais,
an attorney at Donais Law Offices, declined to represent Bisasor in a separate case. Bisasor and
his wife subsequently filed bar complaints against Craig Donais, and, at some point, Craig Donais
reported Bisasor to the police, asserting concerns about harassment or stalking. Bisasor also
brought several other lawsuits against Donais. This case relates to statements that defendants
allegedly made to the police and during other litigation that Bisasor pursued.
Bisasor initially filed this suit in Bristol (Massachusetts) Superior Court in late June 2022.
The only defendants named in Bisasor’s initial complaint were Craig Donais and Russell Hilliard,
a partner at the law firm of Upton & Hatfield. Hilliard represented Donais in other litigation that
Bisasor pursued against Donais.
Almost a year later, on May 4, 2023, Bisasor filed the Amended Complaint, which remains
operative. In the Amended Complaint, Bisasor named, for the first time, additional defendants,
including Donais Law Offices, Craig Donais’ wife, Mary Donais, and Upton & Hatfield. Bisasor
asserts thirteen claims in the Amended Complaint, including claims for defamation, intentional
infliction of emotional distress, breach of contract, and race-based harassment in violation of 42
U.S.C § 1981. He asks for compensatory and punitive damages from the defendants, based on
mental anguish, lost professional opportunities, and harm to his reputation, among other, similar
injuries.
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On May 8, 2023, Bisasor mailed the Amended Complaint and a summons to Hilliard, who
received it on May 11. Doc. no. 87 at 4. There is no evidence in the record that Upton & Hatfield
was served with a summons at that time. On the basis of federal question and diversity jurisdiction,
Upton & Hatfield filed a notice of removal in the District of Massachusetts in the late evening on
June 9, 2023. Upton & Hatfield filed the notice of removal after the District of Massachusetts’s
6:00 p.m. deadline for electronic filings. See L.R., D. Mass. 5.4(d) (2019) (“All electronic
transmissions of documents must be completed prior to 6:00 p.m. to be considered timely filed
that day.”).
After removal, the parties engaged in motion practice in the District of Massachusetts. Of
note, Bisasor filed a motion to remand and a motion for default against Hilliard, while the
defendants, including Hilliard, filed motions to dismiss in which they argued, in part, that the court
should transfer this action to the District of New Hampshire based on lack of personal jurisdiction
in Massachusetts. After a hearing and with the parties’ consent, Judge Young ordered the suit
transferred to the District of New Hampshire. After transfer, this court ordered the parties to refile
any then-pending motions they wished the court to consider.
On August 4, 2023, a few days after the transfer, Upton & Hatfield executed a waiver of
service. Doc. no. 64. Bisasor later refiled, among other motions, the motions to remand and for
default that are the subject of this Report and Recommendation.2
DISCUSSION
The court addresses Bisasor’s motion to remand first, his motion for jurisdictional
discovery second, and his motion for entry of default against Hilliard third.
2 Defendants, including Hilliard, also filed motions to dismiss. Those motions were stayed
on December 1, 2023, and will be addressed in the appropriate manner in due course.
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I. Motion to Remand
In his motion to remand, Bisasor contends that the court lacks subject-matter jurisdiction;
that Upton & Hatfield’s removal was untimely; and that various equitable or abstention rules
warrant remand to state court.
A. The court has federal question and diversity jurisdiction over this suit.
To start, Bisasor argues that the court lacks subject-matter jurisdiction because there is
insufficient evidence in the record about Upton & Hatfield’s partners’ residencies and because
defendants have not shown the amount in controversy exceeds $75,000.
The party seeking to invoke the federal courts’ jurisdiction bears the burden of
demonstrating its existence. E.g., Valentin v. Hosp. Bella Vista, 254 F.3d 358, 361 (1st Cir. 2001).
“The district courts shall have original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. And, “in any civil action
of which the district courts have original jurisdiction, the district courts shall have supplemental
jurisdiction over all other claims that are so related to claims in the action within such original
jurisdiction that they form part of the same case or controversy under Article III of the United
States Constitution.” Id. § 1367(a). For the reasons that follow, this court finds that the defendants
satisfied their burden and that jurisdiction is proper based on both federal question jurisdiction and
diversity of citizenship.
1. Federal Question Jurisdiction
In his Amended Complaint, Bisasor asserted a federal claim under 42 U.S.C. § 1981.
Therefore, the court has federal question jurisdiction under § 1331. See R.I. Fishermen’s Alliance,
Inc. v. R.I. Dep’t of Env’t Mgmt. 585 F.3d 42, 48 (1st Cir. 2009) (explaining that suits in which a
plaintiff pleads a cause of action premised on a federal statute involve direct federal questions “that
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fall within the encincture of federal question jurisdiction.”). Additionally, there is no dispute that
Bisasor’s state law claims are premised upon the same set of facts as his federal law claim.
Consequently, it is appropriate for the court to exercise supplemental jurisdiction under § 1367(a)
over Bisasor’s state-law claims. See Ortiz-Bonilla v. Federacion de Ajedrez de P.R., Inc., 734
F.3d 28, 35 (1st Cir. 2013) (“A federal court that exercises federal question jurisdiction over a
single claim may also assert supplemental jurisdiction over all state-law claims that arise from the
same nucleus of operative facts.” (quotations and citations omitted)). Insofar as Bisasor argues
that the court should decline supplemental jurisdiction over his state-law claims because they
“raise a novel or complex issue of State law,” see § 1367(c), the court disagrees. Bisasor’s state
law claims consist of tort and breach of contract claims that state and federal courts confront on a
routine basis. Bisasor has not presented any compelling basis to conclude that those claims raise
any novel or complex legal issues that would require this court to decline jurisdiction.
2. Diversity Jurisdiction
In any event, the court also has diversity jurisdiction. Such jurisdiction exists “where the
matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is
between . . . citizens of different States.” 28 U.S.C. § 1332(a). Citizenship for purposes of
diversity jurisdiction is determined by “domicile,” meaning the place where the defendant “has his
true, fixed home and principal establishment, and to which, whenever he is absent, he has the
intention of returning.” See Tex. Mut. Ins. Co. v. SITUS Trucking, LLC, 2023 WL 4634643, at
*5 (D.P.R. July 20, 2023); Valentin, 254 F.3d at 366. The citizenship of a partnership or limited
liability company is determined by the citizenship of all its members. BRT Mgmt. LLC v. Malden
Storage LLC, 68 F.4th 691, 695-96 (1st Cir. 2023); D.B. Zwirn Special Opportunities Fund, L.P.
v. Mehrotra, 661 F.3d 124, 125 (1st Cir. 2011). If domicile is challenged, the party invoking
diversity jurisdiction must prove it by a preponderance of the evidence. Hall v. Curran, 599 F.3d
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70, 72 (1st Cir. 2010). Finally, in the circumstance, like here, where a party disputes the facts
underlying the court’s subject-matter jurisdiction, the court is free to resolve any factual disputes
between the parties and need not accept either side’s representations as true. See Valentin, 254
F.3d at 363-64 (noting that when resolving factual disputes, courts have “broad authority to order
discovery, consider extrinsic evidence, and hold evidentiary hearings in order to determine its own
jurisdiction.”).
The facts show, by a preponderance of the evidence, that the parties are completely diverse
because none of the defendants is a citizen of the state where Bisasor is a citizen. In his Amended
Complaint, Bisasor alleged that he is “located in the state of Massachusetts[,] . . . is a Massachusetts
citizen and has a Massachusetts domicile.” There is no colorable dispute that Bisasor is a
Massachusetts citizen.3 As to the defendants, Bisasor listed a New Hampshire permanent address
for each of the individual defendants (Craig Donais, Mary Donais, and Hilliard) in the Amended
Complaint. Doc. no. 1-3 ¶¶ 60, 78.4 Furthermore, all the defendants filed diversity disclosure
3 In their objection to Bisasor’s motion for jurisdictional discovery, the Donais defendants
suggest that Bisasor may in fact be domiciled in New Hampshire because, in 2017, Bisasor told
Craig Donais that he lived in New Hampshire. That information is stale and gives the court no
reason to doubt that Bisasor truthfully alleged his domicile as Massachusetts in the Amended
Complaint. The Donais defendants also observe that the mailing address Bisasor provided to the
court corresponds to a UPS store mailbox in Attleboro, Massachusetts. Bisasor’s possession of a
mailbox in Massachusetts is consistent with his allegation that he is domiciled there.
4 “Residence and domicile are not the same,” because “a person can have multiple
residences but not multiple domiciles.” Dowd v. Bass & Oyster River Mariner Development,
LLC, No. 23-10108-MPK, 2024 WL 406716, at *2 (D. Mass. Feb. 2, 2024) (determining domicile
when party owned homes in Connecticut, Florida, and Massachusetts and did not reside in any one
state for more than six months a year); Seaplane Enters. LLC v. Chen Tsui Tue, at *1 (D. Mass.
Feb. 22, 2024) (determining domicile when party lived part-time in California and Massachusetts,
but previously lived in North Carolina and maintained a North Carolina driver’s license and voting
registration). Here, however, there is no evidence presently before the court suggesting that any
party splits time between multiple residences in different states or has anything more than
occasional personal or business contacts with states in which they do not reside. See O’Shea v.
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statements that affirmatively allege New Hampshire citizenships. Upton & Hatfield filed a
diversity disclosure statement representing that all its partners are New Hampshire citizens. Doc.
no. 71. Donais Law Office’s statement avers that its sole member is Craig Donais and that he is
a New Hampshire citizen. Doc. no. 72. That statement also avers that Mary Donais is a New
Hampshire citizen. Id.
Bisasor attempts to generate a dispute about some of the defendants’ domiciles by pointing
to other information he uncovered, but he appears to mistake the defendants’ domiciles with the
places to which they may have occasional personal, business, or employment contacts. For
example, Bisasor observes that some of Upton & Hatfield’s partners are licensed to practice law,
went to law school, or previously worked in Massachusetts. Doc. no. 87 at 27-28. And he
identifies evidence indicating that some of the defendants have spent recreational time in
Massachusetts. See doc. no. 136-5.
But many New Hampshire-domiciled lawyers are admitted to practice in Massachusetts or
have previously worked in Massachusetts. Indeed, many New Hampshire citizens work in
Massachusetts, but this does not transform their domicile. Bisasor identifies no reasonable basis
for the court to find that Upton & Hatfield falsely disclosed the citizenships of its partners.
Moreover, if anything, much of the information Bisasor supplied in fact supports the court’s
finding that defendants are domiciled in New Hampshire. For example, Bisasor filed evidence
that further shows that Craig and Mary Donais are New Hampshire citizens. See, e.g., doc. no.
136-5 at 34 (Facebook profile indicating that Mary Donais “[l]ives in Manchester, New
Woodbine Senior Living, LLC, No. 23-cv-230-SM, 2024 WL 552780, at *2-*4 (D.N.H. Feb. 9,
2024) (observing that physical presence and intent to remain indefinitely and return when away
are the two elements of domicile).
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Hampshire”); id. at 28-30 (information showing Craig Donais’s recent residences and places of
employment, all in New Hampshire).
Bisasor also asserts that Upton & Hatfield and Donais Law Offices engage in business in
Massachusetts, but the court does not determine citizenship of limited liability companies and
partnerships by business contacts. As described above, the court’s determination is based on the
citizenships of each entity’s individual members, which are, in turn, determined by domicile. BRT
Mgmt., 68 F.4th at 696 (stating that it is “the members’ citizenships that are relevant for
jurisdictional purposes, not the principal place of business or the state of organization of the
entity”). Whether and to what extent Upton & Hatfield and Donais Law Offices do business in
Massachusetts is not material to the analysis of their members’ citizenships.
Bisasor also argues that the defendants have not established diversity jurisdiction because
the amount in controversy does not exceed $75,000.5 Usually, “a court decides the amount in
controversy from the face of the complaint, ‘unless it appears or is in some way shown that the
amount stated in the complaint is not claimed in good faith.’” Coventry Sewage Assocs. v.
Dworkin Realty Co., 71 F.3d 1, 4 (1st Cir. 1995). The court need only find that there is a
“reasonable probability” the amount in controversy will exceed $75,000. See Solimino v. Target
Corp., No. 21-cv-11435-IT, 2021 WL 4822175, at *2 (D. Mass. Oct. 15, 2021). In his 92-page
Amended Complaint, Bisasor asserts sweeping claims for, among others, defamation, intentional
infliction for emotional distress, and violation of his civil rights, all relating to a multi-year series
of events for which Bisasor requests compensatory damages for loss of reputation, loss of earnings,
5 Bisasor also argues that he is unlikely to recover more than $75,000 in this case. The
determination of the amount in controversy, however, does not turn on the plaintiff’s likelihood of
success in recovering the amount in dispute. See Mut. Real Estate Holdings, LLC v. Houston Cas.
Co., No. 10-cv-236-LM, 2010 WL 3608043, at *4 (D.N.H. Sept. 13, 2010).
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“professional opportunity,” and mental anguish, including “fear and anxiety,” “loss of enjoyment
of life,” “lack of energy,” “mood swings,” and “sleep disturbances.” E.g., doc. no. 1-3 ¶¶ 622,
657, 685. On top of those compensatory damages, Bisasor requests double or treble punitive
damages.6 It is facially apparent from the Amended Complaint that there is a reasonable
probability the amount-in-controversy exceeds $75,000.
B. Upton & Hatfield met the statutory requirements for removal.
Bisasor next argues that remand is warranted because Upton & Hatfield’s notice of removal
was untimely under 28 U.S.C. § 1446(b). That statute provides as follows:
The notice of removal of a civil action or proceeding shall be filed within 30 days
after the receipt by the defendant, through service or otherwise, of a copy of the
initial pleading setting forth the claim for relief upon which such action or
proceeding is based, or within 30 days after the service of summons upon the
defendant if such initial pleading has then been filed in court and is not required to
be served on the defendant, whichever period is shorter.
28 U.S.C. § 1446(b). Specifically, Bisasor argues that Upton & Hatfield’s notice of removal was
untimely because it was docketed on June 12, 2023, more than 30 days after three alternative
triggers: (1) his service of the initial complaint on Hilliard on April 17, 2023; (2) his mailing of
the Amended Complaint to Hilliard on May 8, 2023; or (3) Hilliard’s receipt of the Amended
Complaint on May 11, 2023. The applicable authority establishes, however, that the filing was
timely.
As relevant here, the 30-day clock for a defendant to file a notice of removal begins running
when the defendant receives “through service or otherwise . . . a copy of the initial pleading setting
forth the claim for relief upon which such action or proceeding is based.” 28 U.S.C. § 1446(b).
6 Notably, in connection with his motion to remand, Bisasor asserts that “[i]t was facially
apparent from the Complaint itself that the amount in controversy exceeded the jurisdictional
minimum for diversity jurisdiction.” See doc. no. 87 at 15.
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In isolation, this text could be read to mean that the 30-day removal clock begins when the
defendant receives a copy of the relevant pleading, regardless of whether the defendant was also
served formal process including a summons. But service of process “is fundamental to any
procedural imposition on a named defendant.” See Murphy Bros., Inc. v. Michetti Pipe Stringing,
Inc., 526 U.S. 344, 347-48 (1999). For that reason, even though § 1446(b) does not reference
service of process with respect to the events that trigger the 30-day clock, it does not eliminate that
traditional prerequisite to imposing any procedural deadline. See id. at 354 (“An individual or
entity named as a defendant is not obliged to engage in litigation unless notified of the action, and
brought under a court’s authority, by formal process.”). Hence, “the removal period runs from the
service of the summons.” Id.; Novak v. Bank of N.Y. Mellon Tr. Co., NA, 783 F.3d 910, 911 (1st
Cir. 2015) (“[T]he Supreme Court has held that a defendant’s statutory period to remove does not
begin to run, and a defendant is not required to remove, until the defendant has been served.”).7
Massachusetts Rule of Civil Procedure 4 requires that service of process include a “a copy
of the complaint and a summons,” which “shall be served together” and, among other things, shall
contain “the names of the parties” and “be directed to the defendant.”8 Mass. R. Civ. P. 4(a), (b),
(d). Bisasor identifies no evidence in the record showing that he served process as required by
Rule 4 on Upton & Hatfield. Indeed, at times in his filings, Bisasor appears to agree that he did
7 Bisasor cites to Pillin’s Place, Inc. v. Bank One, Akron, N.A., 771 F. Supp. 205, 206-07
(N.D. Ohio 1991), which found that delivery of a pleading that gives the defendant “fair notice”
triggers the 30-day removal period. Doc. no. 87 at 21, ¶ 188. The Supreme Court, however,
rejected that rule in Murphy Brothers. 526 U.S. at 350 (“[O]ne becomes a party officially, and is
required to take action in that capacity, only upon service of a summons or other authority-asserting
measure stating the time within which the party served must appear and defend.”).
8 As described above, Bisasor originally filed this case in Massachusetts and all parties
were joined by the time the case was transferred to this court. Accordingly, Bisasor relies on
Massachusetts’s rules pertaining to service of process.
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not serve process on Upton & Hatfield. For instance, he states that “[o]n Friday 6/9/23, the
defendant Upton & Hatfield (who was not yet served in state court) preemptively filed a notice of
removal in federal court.” Doc. no. 87 at 6, ¶ 68; but see doc. no. 135 at 5 (“At no point did I send
the complaint or amended complaint to any of the defendants unattended by any formal service in
this case.”). In any event, without any evidence before the court showing service of process on
Upton & Hatfield at least 30 days prior to the notice of removal, Upton & Hatfield’s notice of
removal was timely. See Murphy Bros., 526 U.S. at 354.9
Bisasor argues that the clock began running when he served the original complaint on
Hilliard. He asserts that Upton & Hatfield “was technically a party” in the original complaint
because Hilliard is an Upton & Hatfield partner. Doc. no. 138 at 8. Bisasor did not identify Upton
& Hatfield as a defendant in the original complaint, and Upton & Hatfield is a separate legal entity
for the purpose of obtaining judgment against partnership property. See Storch Engineers v. D&K
Land Developers, 134 N.H. 414, 415 (1991) (“A partnership is a legal entity for purposes of
enforcing judgment against partnership assets.”); see also RSA 304-A:15(IV) (distinguishing
between naming the partners of a limited liability partnership and the partnership itself). Thus,
Bisasor’s alleged service of the original complaint on Hilliard is irrelevant because the 30-day
removal clock does not run against an entity that is not a party to the case. See Murphy Bros., 526
9 Bisasor contends (citing to Murphy Brothers) that “Upton & Hatfield acted prematurely
by filing for removal before it had been formally served with the complaint.” Doc. no. 87 at 29.
The First Circuit rejected the theory that a case cannot be removed until after service of process
has been made. Novak, 783 F.3d at 911 (holding that service is not a prerequisite for removal even
though service is a prerequisite to begin the 30-day removal clock).
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U.S. at 350 (“[O]ne becomes a party officially, and is required to take action in that capacity, only
upon service of a summons or other authority-asserting measure . . . .”).10
Alternatively, Bisasor argues that he served process on Upton & Hatfield when he mailed
the Amended Complaint and a summons to Hilliard on May 8, 2023.11 As previously noted,
however, Upton & Hatfield contends that it was never served with process, and Bisasor offers no
evidence showing he served a summons directed to Upton & Hatfield. The summonses and deputy
sheriff’s statements that Bisasor identifies in support of this argument refer only to Hilliard. See
doc. no. 138-2 (summonses directed only to Hilliard and deputy sheriff’s statements indicating
service only on Hilliard). Bisasor has not shown that a summons directed to Hilliard is equivalent
to a summons directed to Upton & Hatfield, which, as discussed above, is a separate legal entity
and therefore, a distinct defendant from Hilliard. See Storch Engineers, 134 N.H. at 415. To the
extent Bisasor argues, see doc. no. 87 at 9-14, that under Massachusetts Rule of Civil Procedure 5
he was not required to serve a summons on Upton & Hatfield, he is mistaken because Rule 5
10 To the extent that Bisasor relies on the “first-served defendant rule,” see doc. no. 87 at
21, which was a “judicially crafted rule” that prohibited a first-served defendant from consenting
to a notice of removal filed by a later-served defendant more than 30 day after service on the first-
served defendant, it has been abrogated by Congressional amendments to § 1446(b). Doe v.
McGuire, 289 F. Supp. 3d 266, 272 (D. Mass. 2018) (“[T]he 2011 amendments to section 1446 all
but abrogated” the first-served defendant rule); see 28 U.S.C. § 1446(b)(2)(C) (“If defendants are
served at different times, and a later-served defendant files a notice of removal, any earlier-served
defendant may consent to the removal even though that earlier-served defendant did not previously
initiate or consent to removal.”).
11 Bisasor argues that Upton & Hatfield previously conceded that it was served when
Hilliard was served because Hilliard is a partner of the firm. See doc. no. 87 at 9, ¶ 83. Upton &
Hatfield made no such concession. Bisasor misreads the relevant filing in which Upton & Hatfield
argued (in response to Bisasor’s prior motion to remand) that even if it had been served on May
11 when Hilliard received the Amended Complaint as Bisasor sometimes claims, its notice of
removal was timely. Doc. no. 36 at 2. Indeed, in the same passage (and as Bisasor acknowledges)
Upton & Hatfield observed that it “has never been served with the Amended Complaint.” Id.
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applies only after a defendant has been brought into a case through serving process under Rule 4.12
See Wang v. Niakaros, 852 N.E. 2d 699, 702-03 (Mass. App. Ct. 2006) (finding that amended
complaint that asserted “additional claims that constitute a new lawsuit in all but name” was
required to be served on defendant under Rule 4); accord Washington Tr. Advisors, Inc. v. Arnold,
No. 22-cv-11847-PBS, --- F. Supp. 3d ---, 2023 WL 4196857, at *3 (D. Mass. Apr. 14, 2023)
(finding that plaintiff was required to serve process on newly added defendant under Federal Rule
of Civil Procedure 4); Cryer v. UMass Med. Corr. Health, 2011 WL 841248, at *1-*2 (D. Mass.
Mar. 7, 2011) (observing that service of amended complaint can generally only occur under
Federal Rule of Civil Procedure 5 when the original complaint was properly served under Rule 4
and the defendant has already appeared); Linwood Trading Ltd. v. E.S. Recycling Express Corp.,
No. 14-6332, 2017 WL 1882490, at *4 (D.N.J. May 9, 2017) (“Because [Defendant] was not
named as a party prior to the [Second Amended Complaint], Plaintiff was required to serve
[Defendant] with a summons and the [Second Amended Complaint] in compliance with Rule 4.
[Plaintiff] has not provided any evidence that [Defendant] was served in accordance with Rule
4.”).
Lastly, Bisasor contends that the 30-day removal clock began as to Upton & Hatfield on
May 11, 2023, when Hilliard received the Amended Complaint. Assuming Hilliard’s receipt of
the Amended Complaint and a summons directed to him were sufficient to serve Upton & Hatfield
(and it is not, for the reasons already discussed), Upton & Hatfield’s notice of removal would
12 Rule 5 describes generally permissible methods of serving pleadings and papers in
Massachusetts, while Rule 4 describes permissible methods of serving process.
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nevertheless be timely because it would not have been due until June 12, 2023, the date by which
Upton & Hatfield filed its notice.13
C. Other Arguments
In his filings, Bisasor raises several other arguments for remand: defendants waived
removal by participating in the suit in state court; defendants failed to give him advance warning
of removal; litigating in federal court is more difficult for a pro se plaintiff; and the equitable
remand or an abstention rule applies. None of these arguments are persuasive here.
A defendant can waive its right to remove a case to federal court if it “manifests a clear
and unequivocal intent to adjudicate the case in state court.” Cummings Properties, LLC v.
Production Resource Group, L.L.C., 532 F. Supp. 3d 24, 26-27 (D. Mass. 2021). To manifest such
intent, a defendant must do more than take actions “designed [only] to preserve [its] rights without
the risk of entry of default due to missed deadlines.” City of Springfield, Mass. v. Comcast Cable
Communications, Inc., 670 F. Supp. 2d 100, 105 (D. Mass. 2009). Indeed, “short of seeking an
adjudication on the merits” in state court, a defendant’s right to remove an action to federal court
will not be lost. Id.; see, e.g., Cogdell v. Wyeth, 366 F.3d 1245, 1249 (11th Cir. 2004) (filing a
motion to dismiss in state court did not constitute waiver of removal right); Hernandez-Lopez v.
Puerto Rico, 30 F. Supp. 2d 205, 209 (D.P.R. 1998) (removing party did not waive its right to
removal despite filing an answer, a motion and supporting memorandum and a limited
interrogatory in state court). The court’s review of the state court docket that was filed upon
13 Upton & Hatfield filed the notice of removal in the District of Massachusetts on Friday,
June 9, but Bisasor contends that the filing was not effective until June 12, 2023, under District of
Massachusetts Local Rule 5.4(d) because it was filed after 6:00 p.m. The court need not address
that issue because the notice of removal was timely regardless. This is because the last day of the
30-day period that began on May 11, 2023, was Saturday, June 10. Because the last day of the 30-
day period was a Saturday, the deadline became Monday, June 12, that is, the next day that was
not a Saturday, Sunday, or legal holiday. See Fed. R. Civ. P. 6(a)(1)(C).
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removal does not show any activity from Upton & Hatfield that would suggest waiver. Bisasor
points to discussions he had with defense counsel about the case, but discussions with counsel
about a case are far from sufficient to warrant waiver.
Next, Bisasor contends that removal was unfair because he did not receive advance notice
and because “it was done out of pure gamesmanship.” Doc. no. 87 at 31. Bisasor received the
notice to which he was entitled when Upton & Hatfield filed the notice of removal. Section 1446
does not require more on that front. Furthermore, the strategic reasons underlying why Upton &
Hatfield exercised its right to remove the case are irrelevant where it had a statutory right to do so.
Next, Bisasor argues that the court should remand for equitable reasons, as litigating in
federal court is more difficult for a pro se litigant than in state court. There is no rule that prohibits
removal on the premise that litigating in federal courts is generally more difficult for pro se
plaintiffs than litigating in state court. Additionally, the “equitable remand” rule that Bisasor
discusses in his filings applies in cases involving the court’s bankruptcy jurisdiction, which is not
at issue here. See 28 U.S.C. § 1452(b); N. Eng. Wood Pellet, LLC v. N. Eng. Pellet, LLC, 419
B.R. 133, 144 (D.N.H. Oct. 30, 2009); Marotta Gund Budd & Dzera LLC v. Costa, 340 B.R. 661,
662-63 (D.N.H. Mar. 31, 2006); Garland & Lachance Constr. Co., Inc. v. City of Keene by
Planning Bd., 144 B.R. 586, 588 (D.N.H. Apr. 11, 1991).
Lastly, citing to Quackenbush v. Allstate, 517 U.S. 706 (1996), Bisasor contends that the
court should abstain from hearing this case. In Quackenbush, the Supreme Court dealt with a form
of abstention commonly known as Burford abstention, after Burford v. Sun Oil Co., 319 U.S. 315
(1943). Courts “have read Burford and its progeny narrowly.” Forty Six Hundred LLC v. Cadence
Educ., LLC, 15 F.4th 70, 75 (1st Cir. 2021). It applies only in “extraordinary circumstances” when
“the federal court might, in the context of the state regulatory scheme, create a parallel, additional,
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federal, ‘regulatory review’ mechanism, the existence of which would significantly increase the
difficulty of administering the state regulatory scheme.” Id. That is, “Burford abstention applies
only in ‘unusual circumstances,’ where the federal court risks usurping the state’s role as the
‘regulatory decision-making center.’” Id. (quoting Vaqueria Tres Monjitas, Inc. v. Irizarry, 587
F.3d 464, 474 (1st Cir. 2009)). Here, the court does not risk usurping any state’s role as a
regulatory decision-making center, and thus, Burford abstention is unwarranted. See
Quackenbush, 517 U.S. at 716 (observing that “federal courts have a strict duty to exercise the
jurisdiction that is conferred upon them by Congress”).
D. Complaint Amendment
In his motion to remand, Bisasor also notes that he plans to amend his complaint to add a
nonparty who is nondiverse and to drop the federal claim, for the purpose of defeating federal
jurisdiction. In a separate order, the court provided Bisasor time to file a motion for leave to file
an amended complaint.14 At present, however, the Amended Complaint is operative, and under it
the court has both federal question and diversity jurisdiction.
E. Summary
In summary, this court has both federal question and diversity jurisdiction. Upton &
Hatfield timely filed its notice of removal. None of Bisasor’s arguments, whether or not expressly
discussed in this R&R, persuade the court that remand is warranted in these circumstances.
Accordingly, this court recommends that Bisasor’s motion to remand be denied.
14 Bisasor filed a motion to amend his complaint on Marh 12, 2024. The next day, he filed
an amended motion to amend. The motions are not yet ripe.
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II. Jurisdictional Discovery
Bisasor also moves for jurisdictional discovery. Doc. no. 137. Given the above findings,
the court denies that motion because there is no reason for it at this time. The court has federal
question jurisdiction, so even if Bisasor were to uncover a fact through jurisdictional discovery
that shows one of the parties is nondiverse, it would not change whether the court possesses
subject-matter jurisdiction. Jurisdictional discovery also would not change the outcome as to the
timeliness of removal, as the evidence before the court demonstrates that removal was timely. To
the extent Bisasor contends that he served Upton & Hatfield with a summons more than 30 days
before it filed the notice of removal, evidence demonstrating service of process would already be
in his possession and should have been presented in connection with the motion to remand.
Accordingly, Bisasor’s motion for jurisdictional discovery is denied.
III. Motion for Default
Bisasor also moves for entry of default against defendant Russell Hilliard. The main
premise of Bisasor’s motion is that Hilliard failed to timely respond to the Amended Complaint,
which Bisasor asserts was served on Hilliard no later than May 8, 2023, per Massachusetts Rule
of Civil Procedure 5(a) and (b). Bisasor contends that a response was due 10 days later, on May
18, 2023. Hilliard, however, did not file a motion to dismiss until June 16, 2023. Hilliard objects,
arguing that he is not in default and that he timely filed the motion to dismiss under Federal Rule
of Civil Procedure 81, which he asserts provided him additional time to respond after Upton &
Hatfield’s removal.
“When a party against whom a judgment for affirmative relief is sought has failed to plead
or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the
party’s default.” Fed. R. Civ. P. 55(a). Regardless of when Hilliard’s response was due, entering
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default is unwarranted. Hilliard has actively defended against Bisasor’s claims. Even if Hilliard’s
motion to dismiss were untimely as Bisasor contends, the drastic sanction of default would be
unjust. See, e.g., Snell v. Descoteaux, No. 20-cv-11894-JDL, 2022 WL 813831, at *2 (D. Mass.
Mar. 16, 2022) (declining to enter default as a sanction when defendant’s response to complaint
was untimely); Sea Salt, LLC v. TD Bank, NA, No. 20-cv-99-JAW, 2021 WL 454222, at *3 (D.
Me. Feb. 8, 2021) (same); Lewis v. Kennebec Cnty., No. 16-cv-559-JAW, 2017 WL 2274953, at
*3 (D. Me. May 24, 2017) (same). For that reason, the district judge should deny Bisasor’s motion
to enter clerk’s default under Rule 55(a).
CONCLUSION
For the foregoing reasons, the district judge should deny Bisasor’s motion to remand (doc.
nos. 84, 87) and his motion to enter default against Hilliard (doc. no. 85). Bisasor’s motion for
jurisdictional discovery (doc. no. 137) is denied.
Any objection to this Report and Recommendation on Bisasor’s motion to remand or his
motion to enter default against Hilliard must be filed within 14 days of receipt of this notice. See
Fed. R. Civ. P. 72(b)(2). The objection period may be extended upon timely motion. Only those
issues properly raised in a written objection are subject to review in the district court and any issues
not preserved by a written objection are waived on appeal. Santos-Santos v. Torres-Centeno, 842
F.3d 163, 168 (1st Cir. 2016) (citations omitted).
____________________________
Talesha L. Saint-Marc
United States Magistrate Judge
March 21, 2024
cc: Andre Bisasor, pro se
Counsel of Record
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