1:25-cv-00352•Old Wellington Road Apartments, LLC v. Desire et al
Texto completo
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 defendantsthe party seeking to invoke federal jurisdictionhave 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
Continue sua pesquisa no ChatGPT ou Claude
Conecte o Omnilex para pesquisar o corpus jurídico pelo seu assistente de IA.