Baldi v. MacKenzie

2004 DNH 109

• Court: District Court, D. New Hampshire
• Decided: July 26, 2004
• Docket: CV-04-158-SM
• Status: Published

Opinion

Baldi v . MacKenzie CV-04-158-SM 07/26/04 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

John A . Baldi, Plaintiff

v. Civil N o . 04-158-SM Opinion N o . 2004 DNH 109 James MacKenzie, Defendant

O R D E R

John A . Baldi has sued Conservation Officer James MacKenzie

in one count, alleging that MacKenzie is liable to him in

negligence. Baldi says MacKenzie failed to tag or remove a deer

from his property, despite having had a duty to do so – a duty

imposed by statute and by the direct order of MacKenzie’s

superior officer in the New Hampshire Fish and Game Department

(“Fish & Game”). Before the court is MacKenzie’s motion to

dismiss for lack of subject matter jurisdiction and for failure

to state a claim upon which relief can be granted. Baldi

objects. Because, in reality, Baldi’s suit is against the State of

New Hampshire, which is not a “citizen” for diversity purposes,

MacKenzie’s motion to dismiss is granted.

The operative facts, taken from the complaint, are as

follows. On July 5 , 1999, Baldi shot a deer on his property. On

July 6, MacKenzie was directed by a superior at Fish & Game to

tag the deer or remove it from Baldi’s property. MacKenzie

visited Baldi’s property, but did not tag or remove the deer.

MacKenzie did not inform Baldi of his visit. Because he was

legally prohibited from disposing of an untagged deer, Baldi left

the deer on his property until it was removed by the local

police, who charged Baldi with violating RSA 147:13 which, among

other things, prohibits the placement of animal carcasses

(offensive matter) near a roadway. Baldi was tried and convicted

of that statutory violation in state court.

In a previous suit invoking this court’s federal question

jurisdiction, Baldi brought a variety of federal and state claims

in twenty-seven counts against numerous defendants. Included in

that suit (Civil N o . 02-313-M) was a state negligence claim

2 against MacKenzie – for failing to tag or remove the deer Baldi

left on his property on July 6. Eventually, this court dismissed

all the federal claims in Civil N o . 02-313-M, and declined to

exercise supplemental jurisdiction over the remaining state

claims. Baldi then filed this suit, reasserting the negligence

claim, but now invoking federal diversity jurisdiction.1

MacKenzie moves to dismiss for lack of subject matter

jurisdiction, asserting an absence of diversity, and the bar of

sovereign immunity. MacKenzie also moves to dismiss on the

following grounds: (1) claim preclusion; (2) statute of

limitations; and (3) failure to state a claim upon which relief

can be granted, based on the absence of any statutory or common

law duty owed by him to Baldi. Baldi objects, categorically.

In his objection, Baldi argues that the court has diversity

jurisdiction over this case because he is a citizen of

1 In the e first section of his complaint, Baldi contends that I should be disqualified from hearing this case due to my close association with Chief Judge Barbadoro, Judge DiClerico, and Magistrate Judge Muirhead. Baldi’s objection to my hearing this case is both improperly raised, see United States v . Devin, 918 F.2d 2 8 0 , 294 n.11 (1st Cir. 1990), and without merit. I decline recuse myself.

3 Massachusetts and is suing MacKenzie in MacKenzie’s individual

capacity.2 However, on the facts alleged, Baldi’s suit is not

against MacKenzie in his individual capacity, notwithstanding

Baldi’s protestations to the contrary. Baldi has identified no

duty owed him by MacKenzie as a private citizen, but does allege

acts or omissions by MacKenzie that might arguably be wrongful,

but only to the extent MacKenzie was performing his official duty

as a conservation officer. Baldi claims that MacKenzie harmed

him by failing to follow the direct command of his superior at

Fish & Game, o r , by failing to perform a statutory duty imposed

upon him as a Fish & Game employee. In other words, Baldi claims

to have suffered harm because MacKenzie failed to properly

perform his duties as a conservation officer.

Thus, no matter how Baldi may label this suit, it is a suit

against MacKenzie in his official capacity as a state

2 What is missing from both Baldi’s complaint and his objection to MacKenzie’s motion to dismiss is any allegation regarding MacKenzie’s citizenship. Thus, Baldi’s invocation of diversity jurisdiction is facially defective; he has not alleged that he and MacKenzie are “citizens of different States.” 28 U.S.C. § 1332(a)(1). However, because “[d]efective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts,” 28 U.S.C. § 1653, the court will assume, for purposes of deciding the motion before i t , that MacKenzie is a citizen of New Hampshire and Baldi is a citizen of Massachusetts

4 conservation officer. “Where, as here, all of the claims are

made against a government official acting purely in a

representative role, the suit must be regarded as one against the

sovereign.” Northeast Fed. Credit Union v . Neves, 837 F.2d 5 3 1 ,

533 (1st Cir. 1988) (citing Kentucky v . Graham, 473 U . S . 159, 166

(1985)). Moreover, “[a] State is not [itself] a citizen. And

under the Judiciary Acts of the United States, it is well settled

that a suit between a State and a citizen or a corporation of

another State is not between citizens of different States . . .”

Northeast Fed. Credit Union, 837 F.2d at 533 (quoting Postal Tel.

Cable C o . v . Alabama, 155 U . S . 4 8 2 , 487 (1894)). Because Baldi

has sued MacKenzie exclusively for actions taken in his official

role, Baldi has sued the State of New Hampshire. And because

Baldi has sued New Hampshire, rather than a citizen of New

Hampshire, the court lacks diversity jurisdiction over his claim.

Accordingly, MacKenzie’s motion to dismiss (document n o . 4 )

is granted. See F E D . R . C I V . P . 12(b)(1). The clerk shall enter

judgment in accordance with this order and close the case.

5 SO ORDERED.

Steven J. McAuliffe United States District Judge

July 2 6 , 2004

cc: John A . Baldi Nancy J. Smith, Esq.