Defendant's Attorney: Johns Pendergast and K. Joshua Scott for Town of Salem

Nathan W. Kenison-Marvin New Hampshire Attorney General

Description: Concord, New Hampshire civil rights lawyer represented Plaintiff, who sued Defendants for violating his civil rights in various ways.

Stephen DiChiara brings this action against the Town of Salem and the State of New Hampshire.[1] In his complaint, DiChiara advances a variety of claims under the United States Constitution, the New Hampshire Constitution, and New Hampshire common law. He seeks both monetary and injunctive relief.

Shortly after DiChiara filed his writ in Merrimack Superior Court, the Town of Salem removed the proceeding to this court. See 28 U.S.C. §§ 1441 and 1446. See also 28 U.S.C. § 1331. But, before doing so, the Town neglected to obtain the consent of the other named defendant: the State of New Hampshire.

Pointing to that failure and citing the “unanimity requirement” of 28 U.S.C. § 1446(b)(2)(A), DiChiara asserts that this proceeding was not properly removed and should be remanded, in its entirety, to the state court.

The State, on the other hand, invokes its Eleventh Amendment immunity and urges the court to dismiss all of DiChiara's claims against it. In the alternative, however, the State agrees that DiChiara's claims against it should be resolved in state court and says the court should sever and remand them to the state court. See 28 U.S.C. § 1441(c)(2). Finally, the Town of Salem does not object to the remand of DiChiara's claims against the State, but urges the court to retain jurisdiction over the claims advanced against it. Not surprising (since it removed this proceeding), the Town of Salem would prefer to litigate DiChiara's claims in federal court.

Outcome: DiChiara's claims against the Town of Salem were properly removed from state court and will remain in this court. All claims against the State of New Hampshire, however, shall be remanded to state court. See 28 U.S.C. § 1441(c)(2).

The State's “Motion to Dismiss or Alternatively to Remand the Claims Against it to Merrimack Superior Court” (document no. 16) is granted to the extent it seeks remand. In all other respects, it is denied. DiChiara's “Motion to Add N.H. Attorney General John Formella Individually as a Defendant” (document no. 18) is denied as moot. The Clerk of Court shall sever DiChiara's claims against the State of New Hampshire and remand them to the Merrimack, New Hampshire, State Superior Court.

SO ORDERED.

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Defendant's Experts:

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