United States District Court, D. New Hampshire
Danielle Y. Vanderzanden, Esq.
A. DiClerico, Jr. United States District Judge
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.
Motion for Reconsideration
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. 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.
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).
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.
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.
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).
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 ...