Delpidio v. Fiorillo

• Court: District Court, D. Massachusetts
• Decided: July 6, 2023
• Docket: 1:23-cv-11473
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

) LOUIS DELPIDIO, As Trustee of the ) Lewis Bay Beach House Trust, the 116 ) Baxter Road Beach House Trust and the ) 63 TN Beach House Trust ) ) Plaintiff, ) ) v. ) Civil No. 23-11473-LTS ) NICHOLAS FIORILLO and OCEAN ) VACATIONS, LLC, ) ) Defendants. ) )

ORDER ON EMERGENCY MOTION AND INCORPORATED MEMORANDUM IN SUPPORT FOR REMAND AND FOR SANCTIONS AGAINST VEXATIOUS LITIGANT (DOC. NO. 4)

July 6, 2023

SOROKIN, J. Plaintiff Louis Delpidio sued Defendants Nicholas Fiorillo and Ocean Vacations, LLC in Barnstable Superior Court alleging several state law causes of action. On June 30, 2023, Fiorillo purported to remove this action to this Court. Doc. No. 1. The party invoking federal jurisdiction bears the burden to establish subject matter jurisdiction over the case. Milford-Bennington R.R. Co. v. Pan Am Rys., Inc., 695 F.3d 175, 178 (1st Cir. 2012). This Fiorillo has not done. Nothing before the Court suggests the parties are diverse. There is no federal claim advanced in the underlying complaint nor any significant federal issue otherwise requiring decision. See AMTAX Holdings 227, LLC v. Tenants’ Dev. II Corp., 15 F.4th 551, 556–59 (1st Cir. 2021) (describing and applying standard for embedded federal jurisdiction). In short, there is no basis for this Court to exercise subject matter jurisdiction over this matter. Additionally, the Notice of Removal fails, plainly, to comply with all of the prerequisites to removal. Fiorillo proceeding pro se may not represent the defendant entity (Ocean Vacations, LLC) nor may he sign a pleading on its behalf, and nothing establishes that this entity joined or consented to removal. Finally, though the Emergency Motion was filed today, Fiorillo already opposed, having filed a “preemptive”

opposition after learning of the particulars of the Motion from opposing counsel during the conferral process. See Doc. No. 3. Accordingly, the Motion to Remand (Doc. No. 4) is ALLOWED. The Clerk shall immediately return this case to state court. One further issue bears comment: Fiorillo is cautioned that proceeding pro se does not exempt him from sanctions for frivolous or abusive conduct.

SO ORDERED.

/s/ Leo T. Sorokin Leo T. Sorokin United States District Judge