Baldi v. Brown, et al.

Baldi v . Brown, et a l . 07-CV-024-SM 04/10/07

UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

John A . Baldi,

Plaintiff

v. Civil N o . 07-cv-24-SM

Opinion N o . 2007 DNH 048

Roland & Gail Brown;

Charles Russell; Town of

Epsom, New Hampshire;

Merrimack County Sheriff’s

Department; New Hampshire

Department of Environmental

Services; William McGraw,

Defendants

O R D E R

John Baldi filed suit in Merrimack County Superior Court

against a host of defendants alleging familiar claims of abuse of

process, fraud, negligence, violations of various constitutional

rights, and violations of various state and federal statutes.

Defendants Roland and Gail Brown removed that suit to this court

on January 3 1 , 2007, asserting both federal question jurisdiction

under 18 U.S.C. § 1331 and diversity jurisdiction under 28 U.S.C.

§ 1332, (document n o . 1 ) . Before the court is plaintiff’s motion

to remand to state court (document n o . 4 ) .

Discussion

28 U.S.C. § 1441 authorizes the removal of civil actions

from state to federal court when the state action is one that

could have been brought originally in federal court. Lincoln

Prop. C o . v . Roche, 126 S . C t . 606, 610 (2005). Generally, to be

effective, all served defendants must join in or consent to a

notice of removal. See 28 U.S.C. § 1446; see also Lapides v . Bd.

of Regents of the Univ. Sys. of Ga., 535 U.S. 613, 620 (2002);

Loftis v . United Parcel Serv., Inc., 342 F.3d 509, 516 (6th Cir.

2003); Getty Oil Corp. v . Ins. C o . of N . Am., 841 F.2d 1254, 1263

(5th Cir. 1988); Swanston v . TAP Pharm. Prods., 307 F. Supp. 2d

190, 193 (D. Mass. 2004).

Plaintiff argues that jurisdiction in this court is improper

because not all of the defendants assented to removal.1 This

court, along with a number of others, has recognized a narrowing

of the usual rule of unanimity, holding that the rule requires

consent from only those parties that would be entitled to

independently remove the case. See, e.g., McConnell v .

Fernandes, 2003 U.S. Dist. LEXIS 23190, *4 (D. Mass. Dec. 2 9 ,

2003); Whitted v . City of Manchester, 1995 U.S. Dist. LEXIS 3 8 2 ,

*4 (D.N.H. Jan. 1 0 , 1995); Rey v . Classic Cars, 762 F. Supp. 4 2 1 ,

423 (D. Mass. 1991). Because the State of New Hampshire, a party

1

Specifically, plaintiff asserts that only Roland and Gail

Brown, by filing the petition, consented to removal. But after

plaintiff filed his motion to remand, every defendant, except the

State of New Hampshire, assented.

2

to this action, is not subject to the jurisdiction of this court

by virtue of the immunity afforded it by the Eleventh Amendment

to the United States Constitution, its consent is not necessary

to properly effect removal. See Whitted, 1995 U.S. Dist. LEXIS

382, *4 (“failure of the State of New Hampshire to consent to

removal does not trigger remand in light of the Eleventh

Amendment prohibition of a suit against the state in a federal

court absent the state’s consent”). See also Wisconsin Dept. of

Corrections v . Schacht, 524 U.S. 3 8 1 , 391 (1998) (Eleventh

Amendment did not prevent removal, even if federal court could

not adjudicate claims barred by that Amendment). The claims

against the State are likely barred by the Eleventh Amendment,

and, as discussed below, face dismissal absent plaintiff’s

showing cause why they should not be dismissed, but that does not

preclude removal. Accordingly, defendants, having secured the

consent of all necessary parties, properly removed the case to

this court. Plaintiff’s motion to remand is necessarily denied.2

2

Plaintiff asserts in passing that I must recuse myself

from this case because of “criminal complaints” he says he has

filed against me with the FBI and the U.S. Department of Justice.

Although recusal may be appropriate under certain circumstances,

and with proper supporting documents, see 28 U.S.C. § 1 4 4 , the

mere fact that a civil litigant files frivolous complaints

against a presiding judge arising from the judge’s work does not

require recusal. Otherwise, the court system would be at the

mercy of judge-shopping litigants motivated to file frivolous

complaints merely to serve improper purposes. See In re Mann,

229 F.3d 6 5 7 , 658-59 (7th Cir. 2000); United States v . Martin-

3

This plaintiff is not unfamiliar with the legal process. He

is a frequent litigator, having filed numerous lawsuits against

many people over the years, and has apparently graduated from law

school. Plaintiff’s most recent visit to this court prompted

Judge Barbadoro to enjoin him from filing “any further actions in

this court that concern or are related to the 1999 assault, the

2000 road improvement project, or the 2003 libel action . . .”

and further ordered him to obtain leave of court prior to filing

any suit [here]. Order dated October 1 9 , 2005 (document n o . 7 6 ) ,

Baldi v . Broderick, et a l . , N o . 04-CV-466-PB.

Although plaintiff cannot be said to have literally violated

the terms of that injunction — because he did not file the case

in this court — a review of the pleadings suggests that the

subject matter of this suit is substantially similar to the

subject matter of his prior cases giving rise to the injunction.

As such, it seems to be the very sort of repetitive and

potentially harassing suit that Judge Barbadoro sought to

preclude. Accordingly, plaintiff shall file, within ten (10)

Trigona, 759 F.2d 1017, 1020-21, 1025 (2d Cir. 1985). Whatever

“criminal complaints” have been filed by plaintiff are baseless

and frivolous and no doubt are part of plaintiff’s ongoing

litigiousness. No reasonable person fully informed of the facts

could reasonably question my impartiality in this case based upon

those bald assertions. 28 U.S.C. § 455.

4

days of the date of this order, a legal memorandum showing cause

why this case should not be dismissed as barred by res judicata,

or collateral estoppel, or Eleventh Amendment immunity, or the

applicable statutes of limitations. See e.g., Baldi v.

Broderick, et al., 04-cv-466-PB, Order dated September 21, 2005

(document no. 71).

Conclusion

For the foregoing reasons, plaintiff’s motion to remand

(document no. 4) is denied. Plaintiff shall, however, file a

memorandum, within ten (10) days of the date of this order,

showing cause why this case should not be dismissed as frivolous

and plainly barred by the doctrines of res judicata, collateral

estoppel, Eleventh Amendment immunity, or the applicable

statute(s) of limitations.

SO ORDERED.

__________________________

Steven J./McAuliffe

Chief Judge

April 10, 2007

cc: John A. Baldi, pro se

Charles A. Russell, Esq.

Brian J.S. Cullen, Esq.

John A. Curran, Esq.

Mary E. Maloney, Esq.

5