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Stow v. McGrath

United States District Court, D. New Hampshire

August 22, 2017

Weston J. Stow
v.
Robert McGrath et al.

          Weston J. Stow, pro se

          REPORT AND RECOMMENDATION

          ANDREA K. JOHNSTONE UNITED STATES MAGISTRATE JUDGE

         Weston Stow has filed motions and other documents in this court, seeking to enjoin and stay proceedings in a New Hampshire Superior Court case.[1] Those motions include:

• Motion to Stay State Proceedings (Doc. No. 2);
• Motion for Prohibitive Preliminary Injunction (Doc. No. 5)[2];
• Motion for Removal from State Court (Doc. No. 6);
• Motions to Addend Motion for Prohibitive Preliminary Injunction (Doc. Nos. 7, 10-12, 15, 22);
• Motion to Present for the Court's Consideration a Possible Course of Action (Doc. No. 13);
• Motions to Addend, Amend, and/or Supplement Motion for Removal from State Court (Doc. Nos. 17, 21, 26, 28-31, 36); and
• Motion to Correct Omission in Motion for Prohibitive Preliminary Injunction (Doc. No. 24).

         Discussion

         I. Removal of Superior Court Case to this Court

         Stow seeks to remove his Superior Court case, Stow v. McGrath, No. 217-2016-cv-00540 (N.H. Super., Merrimack Cnty.) ("State Case"), in which he is the plaintiff, to this court, pursuant to 28 U.S.C. § 1441. However, it is a "general and well-established principle - and limit on federal jurisdiction -that as to a case brought in state court, only a defendant has the power of removal." Fed. Home Loan Mortg. Corp. v. Litano, No. 15-cv-10019-MAP, 2015 WL 3632334, at *4, 2015 U.S. Dist. LEXIS 71066, at *7 (D. Mass. Mar. 30, 2015), R&R adopted, 2015 WL 3632334, at *2, 2015 U.S. Dist. LEXIS 71067, at *4 (D. Mass. June 1, 2015); see also Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 106 (1941).

         Citing Shamrock Oil & Gas Corp., 313 U.S. at 105, Stow argues that this court should except this case from the rule that state court plaintiffs may not remove state court cases to federal court, citing the fact that between 1875 and 1887, the removal statute allowed any party to remove a state case to federal court. The removal statute, however, has not included such a provision since 1887, when Congress revised that statute to allow removal only by the defendant. See Id. at 106-07. Accordingly, as the plaintiff in the ...


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