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.
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