McLaughlin v. Kickham, et al.

2003 DNH 076

• Court: District Court, D. New Hampshire
• Decided: May 13, 2003
• Docket: CV-03-203-M
• Status: Published

Opinion

McLaughlin v . Kickham, et a l . CV-03-203-M 05/13/03 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

James McLaughlin, Trustee of the Elaine Kickham Trust, Plaintiff

v. Civil N o . 03-203-M Opinion N o . 2003 DNH 076 Francis Kickham, Jean F. O’Meara, Barbara J. Kickham, and William Kickham, Defendants

O R D E R

This litigation appears to arise from a dispute concerning

the administration of the Elaine Kickham Trust. On May 8 , 2003,

David R. Amos, pro s e , removed the matter from the Trial Court,

Probate and Family Court Department, Norfolk County, Commonwealth

of Massachusetts. Amos is not, however, a party to the

underlying litigation, nor does it appear that he is a named

beneficiary of the Elaine Kickham Trust, nor is he authorized to

represent any of the interests of the named beneficiaries. See

28 U.S.C. § 1654. See also Herrera-Venegas v . Sanchez-Rivera,

681 F.2d 4 1 , 42 (1st Cir. 1982) (“The federal courts have

consistently rejected attempts at third-party representation. By

law an individual may appear in federal courts only pro se or through legal counsel.”); Local Rule 83.2(d) (“Persons who are

not members of the bar of this court and to whom [certain

exceptions] are not applicable will be allowed to appear before

this court only on their own behalf.”) (emphasis supplied).

Previous efforts by Amos to remove similar matters pending

in the Massachusetts state courts have met with dismissal orders

from this court. See, e.g., O’Meara v . O’Meara, N o . 03-168-JD

(D.N.H. May 6, 2003); Rooney v . O’Meara, N o . 03-197-JD (D.N.H.

May 8 , 2003). This effort fares no better.

Although Amos invokes numerous statutes in support of

removal, it is principally governed by 28 U.S.C. § 1441, which

provides:

Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.

28 U.S.C. § 1441(a) (emphasis supplied). See also 28 U.S.C.

2 § 1446 (discussing the procedure for removing a case to federal

court).

Among other defects associated with the notice of removal,

it does not appear to have been timely filed, since the

underlying state court action appears to have been pending since

at least 2002. See 28 U.S.C. § 1446 (establishing a thirty day

period during which cases must be removed). Nor was this action

removed by a proper party; although Amos claims to be a “party in

interest” in the underlying litigation (his wife is apparently a

beneficiary of the trust), he is not a defendant. Accordingly,

he cannot remove the proceeding to federal court. See 28 U.S.C. § 1441(a). 1

Nor would removal to this district be appropriate in any

event, as it is not “the district court of the United States for

1 That Amos is purporting to act under a power of attorney executed by his wife (a defendant in the underlying state court action) does not alter the fact that he is not authorized to act as her legal counsel in federal court. While a non-lawyer is certainly entitled to represent himself in federal proceedings, he may not, without engaging in the unauthorized practice of law, represent the interests of a third party, even if that third party has vested him with power of attorney. See, e.g., Pinkney v . Dept. of Housing & Econ. Dev’t., 42 Fed. Appx. 535, 536, 2002 WL 1809534 (3rd Cir. July 9, 2002).

3 the district and division embracing the place where such action

is pending.” 28 U.S.C. § 1441(a). And, even if Amos were a

named defendant and if this were the appropriate forum to which

the case might properly be removed, the other defendants have not

assented to removal. See, e.g., Hill v . Phillips, Barratt,

Kaiser Eng’g. Ltd., 586 F. Supp. 9 4 4 , 945 (D.Me. 1984) (Cyr, J.)

(“Where there are multiple defendants, all must consent to or

join in the petition for removal.”)(citations omitted). See also

Karpowicz v . Blue Cross and Blue Shield of Mass. Inc., 72 Fair

Emp. Prac. Cas. (BNA) 3 5 0 , 1996 WL 528372 (D. Mass. 1996)

(holding that the “removal of this case was invalid and remand is

required” since fewer than all defendants assented to removal in

a timely manner).

But, perhaps most fundamentally, the notice of removal fails

to allege sufficient facts to warrant the conclusion that this

court may properly exercise subject matter jurisdiction over the

claims advanced in the underlying litigation. First, the parties

all appear to be residents of Massachusetts. Amos has not

alleged otherwise. Consequently, diversity is lacking. See 28

U.S.C. § 1332. Nor does the underlying litigation appear to

4 involve any claims “arising under the Constitution, laws, or

treaties of the United States.” 28 U.S.C. § 1331. As a result,

the court lacks both diversity and federal question jurisdiction

- a defect which, unlike some of the others associated with the

notice of removal, may not be waived by the parties.

Conclusion

Because this court lacks subject matter jurisdiction as to

the removed matter, the action must be remanded to the court from

which it was removed. The Clerk of Court shall forthwith remand

the action to the Trial Court, Probate and Family Court

Department, Norfolk County, Commonwealth of Massachusetts, and

close the case.

SO ORDERED.

Steven J. McAuliffe United States District Judge

May 1 3 , 2003

cc: James A . McLaughlin, Esq. David R. Amos Jean F. O’Meara Tammy L . Richardson, Esq. Barbara J. Kickham