Oak Brook Condominium Owners' Association v. Dufresne

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Oak Brook Condominium
Owners’ Association
v. 	Case No. 22-cv-383-JL
Gerard P. Dufresne
REPORT AND RECOMMENDATION
Plaintiff Oak Brook Condominium Association (“Oak Brook”)
sued condominium owner Gerard Dufresne in New Hampshire state
court for failure to pay certain condominium expenses.1 Mr.
Dufresne, appearing pro se, subsequently interposed numerous
counterclaims and removed the case to this court. 	Notice of
Removal (Doc. No. 1). 	The case has been referred to the
undersigned Magistrate Judge for preliminary review to assess
whether Mr. Dufresne has properly invoked this court’s subject
matter jurisdiction. 	LR 4.3(d)(3); 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 case.”);
Fideicosimo de la Tierra del Caño Martin Peña v. Fortuño, 604
F.3d 7, 16 (1st Cir. 2010) (“[O]ur ‘obligation to inquire sua
sponte into our jurisdiction over the matter’ exists in every
case.” (quoting Doyle v. Huntress, Inc., 419 F.3d 3, 6 (1st Cir.
1Oak Brook Condo. Owners’ Ass’n v. Dufresne, No. 456-2022-
cv-00251, 9th Cir., Dist. Div., Manchester (filed Aug. 17, 2022)
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2005))). 	As the removing party, Mr. Dufresne “bears the burden
of persuasion vis-à-vis the existence of federal jurisdiction .
. . .” 	López-Muñoz v. Triple-S Salud, Inc., 754 F.3d 1, 9 (1st
Cir. 2014) (quoting BIW Deceived v. Loc. S6, Indus. Union of
Marine & Shipbuilding Workers of Am., 132 F.3d 824, 831 (1st
Cir. 1997)).
Subject Matter Jurisdiction
“‘Federal courts are courts of limited jurisdiction,’
possessing ‘only that power authorized by Constitution and
statute.’” 	Gun v. Minton, 568 U.S. 251, 256 (2013) (quoting
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377
(1994). 	The plaintiff has the burden to establish the court's
jurisdiction. 	Calderón–Serra v. Wilmington Trust Co., 715 F.3d
14, 17 (1st Cir. 2013).
To invoke this court's subject matter jurisdiction, a
plaintiff must allege either that this action raises a federal
question, in that the cause of action arises under federal law,
or that this court has diversity jurisdiction over the matter.
See 28 U.S.C. § 1331 (federal question) and § 1332 (diversity).
To establish diversity jurisdiction, plaintiff must assert that
the parties are citizens of different states, see id. at §
1332(a)(1), and that the amount in controversy in this action
exceeds $75,000. 	See id. at § 1332(b).
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A. Diversity Jurisdiction
As both parties appear to be citizens of New Hampshire, see
state court complaint (Doc. No. 3) ¶¶ 1-2, the case cannot
proceed in this court under diversity jurisdiction. 	Moreover,
28 U.S.C. § 1441(b)(2) “prohibits removal based on diversity
jurisdiction when the defendant is at home in the forum state,”
Exro Techs., Inc. v. ePropelled, Inc., No. CV 22-10344-LTS, 2022
WL 2387885, at *1 (D. Mass. Apr. 27, 2022). 	Mr. Dufresne’s New
Hampshire residency therefore defeats diversity jurisdiction.
B. Federal Question Jurisdiction
Mr. Dufresne’s counterclaim alleges that Oak Brook and six
other counterclaim defendants who were not plaintiffs in the
original state court suit committed numerous violations of the
United States Constitution and various federal laws. 	The court
need not examine the bona fides of these legal claims because
under “the well-pleaded complaint rule,” the “plaintiff is
master of his complaint,” and “a case cannot be removed if the
complaint's allegations are premised only on local law.” 	López-
Muñoz, 754 F.3d at 4 (cleaned up); see also Vaden v. Discover
Bank, 556 U.S. 49, 54 (2009) (federal court jurisdiction “cannot
be invoked on the basis of a defense or counterclaim”).
This case, filed initially in the state circuit court,
arises entirely under New Hampshire law. 	See Complaint (Doc.
No. 3) (citing N.H. Rev. Stat. Ann. §§ 356-B:15, 45 & 46).
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There is no federal claim in the state court case that could
provide grounds for exercising federal question jurisdiction
over this matter. 	See Fed. Nat’l Mortg. Ass’n v. Tompson, No.
17-cv-699-SM, 2018 WL 2426638, at *3 (D.N.H. May 21, 2018). 	Nor
has Mr. Dufresne indicated that resolution of Oak Brook’s claim
would require the court to address an “embedded question of
federal law that is both substantial and disputed.” 	R.I.
Fishermen's All., Inc. v. R.I. Dep't Of Envtl. Mgmt., 585 F.3d
42, 48 (1st Cir. 2009).2 Accordingly, the court finds that Mr.
Dufresne has failed to establish federal question jurisdiction.
Conclusion
For the foregoing reasons, the district judge should remand
this action to the Circuit Court, 9 th Circuit, District Division,
Manchester, because this court lacks subject matter
jurisdiction. 	In addition, the district judge should deny Mr.
Dufresne’s motion to add parties (Doc. No. 2) and motion to
amend (Doc. No. 4), and Oak Brook’s motion to remand (Doc. No.
6) as moot.
2Many of Mr. Dufrene’s counterclaims are premised on alleged
violations of criminal law, for which there is no private right
of action for enforcement. 	See Linda R.S. v. Richard D., 410
U.S. 614, 619 (1973) (“a private citizen lacks a judicially
cognizable interest in the prosecution or nonprosecution of
another”).
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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
such objection(s) are precluded on appeal. 	See id. Failure to
file any objections 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
October 25, 2022
cc: 	Gerard Dufresne, pro se
Michael R. Feniger, Esq.
Bethany P. Minich, Esq.
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