Stow v. McGrath et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Weston J. Stow
v. Civil No. 17-cv-088-JL
Robert McGrath et al.
REPORT AND RECOMMENDATION
Weston Stow has filed motions and other documents in this
court, seeking to enjoin and stay proceedings in a New Hampshire
Superior Court case.1 Those motions include:
 Motion to Stay State Proceedings (Doc. No. 2);
 Motion for Prohibitive Preliminary Injunction (Doc. No. 5)2;
 Motion for Removal from State Court (Doc. No. 6);
 Motions to Addend Motion for Prohibitive Preliminary
Injunction (Doc. Nos. 7, 10-12, 15, 22);
 Motion to Present for the Court’s Consideration a Possible
Course of Action (Doc. No. 13);
 Motions to Addend, Amend, and/or Supplement Motion for
1Because the plaintiff is a prisoner proceeding pro se and
in forma pauperis, the case will be separately preliminarily
reviewed by the Magistrate Judge pursuant to 28 U.S.C.
§ 1915A(a) and LR 4.3(d)(1).
2Stow has filed Status Reports (Doc. Nos. 16, 18, 19, 34)
concerning the Superior Court proceedings which the court has
reviewed and considered in regard to the motions addressed in
this Report and Recommendation.
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Removal from State Court (Doc. Nos. 17, 21, 26, 28-31, 36);
and
 Motion to Correct Omission in Motion for Prohibitive
Preliminary Injunction (Doc. No. 24).
Discussion
I. Removal of Superior Court Case to this Court
Stow seeks to remove his Superior Court case, Stow v.
McGrath, No. 217-2016-cv-00540 (N.H. Super., Merrimack Cnty.)
(“State Case”), in which he is the plaintiff, to this court,
pursuant to 28 U.S.C. § 1441. However, it is a “general and
well-established principle – and limit on federal jurisdiction –
that as to a case brought in state court, only a defendant has
the power of removal.” Fed. Home Loan Mortg. Corp. v. Litano,
No. 15-cv-10019-MAP, 2015 WL 3632334, at *4, 2015 U.S. Dist.
LEXIS 71066, at *7 (D. Mass. Mar. 30, 2015), R&R adopted, 2015
WL 3632334, at *2, 2015 U.S. Dist. LEXIS 71067, at *4 (D. Mass.
June 1, 2015); see also Shamrock Oil & Gas Corp. v. Sheets, 313
U.S. 100, 106 (1941).
Citing Shamrock Oil & Gas Corp., 313 U.S. at 105, Stow
argues that this court should except this case from the rule
that state court plaintiffs may not remove state court cases to
federal court, citing the fact that between 1875 and 1887, the
removal statute allowed any party to remove a state case to
federal court. The removal statute, however, has not included
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such a provision since 1887, when Congress revised that statute
to allow removal only by the defendant. See id. at 106-07.
Accordingly, as the plaintiff in the Superior Court case, Stow
cannot remove his state court case to this court, and the
district judge should deny Stow’s motions so requesting.
II. Request to Enjoin and/or Stay Superior Court Case
At the time Stow filed his initial motion to enjoin and/or
stay the Superior Court case, the judge in that matter had
already issued an order dismissing the case. See Feb. 9, 2017
Order, State Case, Index No. 66 (Doc. No. 5-1, at 29). In that
order, the state court dismissed all of the claims then pending
in that court. See id. (Doc. No. 5-1, at 37). All but one of
the claims was dismissed with prejudice; as to the one claim
dismissed without prejudice, which concerned an allegedly
retaliatory transfer which is also the subject of claims
asserted in this case, the Superior Court stated:
[T]he plaintiff may attempt to amend the complaint on
the allegation of retaliation by defendants McGrath,
Lirette, and Hardy by filing a motion to amend and a
complaint that sets forth facts sufficient to
establish that claim . . . within 30 days of the date
on the clerk of court’s notice of this decision or the
dismissal of the retaliation claim will also be with
prejudice.”
Id. Stow filed a notice of appeal in the New Hampshire Supreme
Court appealing that decision. See Apr. 25, 2017 Notice of
Appeal, State Case, Index No. 84. That notice of appeal remains
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pending in the New Hampshire Supreme Court. See Stow v.
McGrath, No. 2017-0228 (N.H.).
Prior to filing his notice of appeal, Stow filed an amended
complaint in the state court. See Mar. 9, 2017 Am. Compl.,
State Case, Index No. 74 (Doc. No. 5-1, at 69). While the
amended complaint was pending, Stow filed a motion for a
voluntary nonsuit without prejudice, seeking nonsuit of the
claims in the Superior Court case that were not then pending
before the New Hampshire Supreme Court. See May 10, 2017 Mot.
Voluntary Nonsuit, State Case, Index No. 87 (Doc. No. 18-1).
The state court granted that motion. See June 28, 2017 Order,
State Case, Index No. 100.
All of the claims asserted in the Superior Court
proceedings, therefore, have been dismissed, either by the
February 9, 2017 Order or by the June 28, 2017 Order.
Accordingly, there are no pending proceedings in the Superior
Court to be enjoined or stayed. For that reason, the district
judge should deny Stow’s motions seeking to stay and/or enjoin
the state court proceedings as moot.
Conclusion
For the reasons set forth in this Report and
Recommendation, the undersigned Magistrate Judge RECOMMENDS that
the district judge in this case adopt this Report and
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Recommendation and, in doing so, issue the following rulings on
the pending motions:
1. Plaintiff’s motion (Doc. No. 6), seeking to remove the
Superior Court proceedings in Stow v. McGrath, No. 217-
2016-CV-540 (N.H. Super., Merrimack Cnty.) to this court,
is DENIED.
2. Plaintiff’s motions (Doc. Nos. 17, 21, 26) seeking to
addend Stow’s Motion to Remove the Superior Court
proceedings are GRANTED in part and DENIED in part. The
motions are granted to the extent the court has considered
the assertions therein as addenda to Stow’s Motion to
Remove. The motions are DENIED in all other respect,
including as to their request that the Superior Court
proceedings be removed to this court.
3. Plaintiff’s Motion Seeking to Enjoin and/or Stay
Superior Court Proceedings (Doc. No. 2) is denied.
4. Plaintiff’s Motion for Prohibitive Preliminary
Injunction (Doc. No. 5), is DENIED in part and otherwise
taken under advisement. The motion is DENIED to the extent
it seeks to enjoin or stay proceedings in Stow v. McGrath,
No. 217-2016-CV-540 (N.H. Super., Merrimack Cnty.). To the
extent the motion (Doc. No. 5) seeks any other relief, it
is taken under advisement.
5. Plaintiff’s Motion to Present for the Court’s
Consideration a Possible Course of Action (Doc. No. 13) is
construed as a motion to addend the Motion for a
Prohibitive Preliminary Injunction (Doc. No. 5).
6. Plaintiff’s Motions Seeking to Addend Stow’s Motion
for Prohibitive Preliminary Injunction (Doc. Nos. 7, 10-13,
15, 22, 24, 28-31, 36) are GRANTED in part, DENIED in part,
and otherwise taken under advisement. The motions are
granted to the extent that the court has considered the
assertions therein as addenda to Stow’s Motion for
Prohibitive Preliminary Injunction. The motions are DENIED
to the extent they seek an Order enjoining or staying
proceedings in Stow v. McGrath, No. 217-2016-CV-540 (N.H.
Super., Merrimack Cnty.). To the extent the motions seeks
any other relief, they are taken under advisement.
8. The factual and legal assertions in each of the
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filings addressed in this Order are deemed to be subject to
the court’s preliminary review of the pleadings, pursuant
to 28 U.S.C. § 1915A and LR 4.3(d)(1).
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
August 22, 2017
cc: Weston J. Stow, pro se
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