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Swirka v. Liberty Mutual Ins. Co.

United States District Court, D. New Hampshire

December 14, 2018

Elizabeth Swirka
v.
Liberty Mutual Ins. Co.

          Nancy Richards-Stower, Esq.

          Danielle Y. Vanderzanden, Esq.

          ORDER

          Joseph A. DiClerico, Jr. United States District Judge

         Elizabeth Swirka moves for reconsideration of the court's order denying her motion to remand this case to state court. Liberty Mutual objects to the motion. Liberty Mutual has filed a second assented-to motion to amend the notice of removal to correct the jurisdictional basis for removal.

         I. Motion for Reconsideration

         The court denied Swirka's motion to remand based on the state law pertaining to removal of actions from the New Hampshire Commission on Human Rights (“Commission”) and federal law of removal.[1] The court concluded that the complaint was docketed in superior court on September 14, 2018, and the notice of removal was filed on September 25, 2018, well within the thirty-day time limit under 28 U.S.C. § 1446(b)(1). Swirka moves for reconsideration, arguing that the court erred and that the result is unfair.

         Standard of Review

         “[G]ranting a motion for reconsideration is an extraordinary remedy which should be used sparingly.” Palmer v. Champion Mortg., 465 F.3d 24, 30 (1st Cir. 2006) (internal quotation marks omitted). To succeed in having the court reconsider an interlocutory order, a movant must “demonstrate that the order was based on a manifest error of fact or law.” LR 7.2(d). As such, reconsideration will not be granted based on arguments that were not previously made or based on arguments that were rejected in the prior order. Biltcliffe v. CitiMortgage, Inc., 772 F.3d 925, 930 (1st Cir. 2014).

         Discussion

         In support of her motion for reconsideration, Swirka asserts that she has not alleged federal claims and that jurisdiction is based on diversity of citizenship, which she believes should favor remand. She also contends that the court erred in framing the issues because she argued that the Orders of Notice from the Commission, which were served in June, triggered the time limit, she never asserted that the time for removal had not been triggered, and the court should have found that the Commission was “court-like” so that service of its Orders of Notice constituted the beginning of the federal removal period. She again argues that the removal procedure allowed in this case is unfair. Liberty Mutual opposes reconsideration.

         Under 28 U.S.C. § 1446(b), the procedure for removing a civil case from state court to federal court is as follows:

The notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within 30 days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.

         As allowed by RSA 354-AAA:21-a, I, Liberty Mutual removed the proceeding from the Commission to the superior court by filing the complaint there. The complaint docketed in superior court as the civil complaint was the “initial pleading” for purposes of § 1446(b).

         Because the state statute allows a defendant to remove the proceeding from the Commission and to initiate a civil case in superior court, the requirements of § 1446(b) do not fit exactly into the state statutory procedure. Nevertheless, in this case, the initial pleading in state court was the complaint filed by Liberty Mutual. Liberty Mutual is ...


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