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Case 1:16-cv-12383-IT Document 169 Filed 12/04/18 Page 1 of 6
WICvoi4A — (¢h
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
SABA HASHEM, individually, and as a
Member of, and derivatively on behalf of,
D’Angelo and Hashem, LLC,
Plaintiff, Civil Action No. 16-cv-12383-IT
Vv.
STEPHEN L. D’ANGELO, D’ANGELO
LAW GROUP, LLC, and D’ANGELO
AND HASHEM, LLC
Defendants
ee RK RE RH HOH
MOTION OF DEFENDANTS, STEPHEN L. D'ANGELO AND
D'ANGELO LAW GROUP, LLC, TO REMAND
Now come Defendants, Stephen L, D'Angelo and D'Angelo Law Group, LLC, and
respectfully submit their Motion to Remand.
PROCEDURAL BACKGROUND
This case was filed by Plaintiffs in state court (Essex Superior) on September 16, 2016.
Defendants moved to remove the case to federal court based upon diversity jurisdiction which
was allowed on November 16, 2016. Intervention-Plaintiff, Jennifer M. Carrion, was permitted
to intervene in this case by order of the Court on July 28, 2017. Defendants recently retained new
counsel who believe that the proper court for this matter is now state court, due to a lack of
subject matter jurisdiction required in federal court. As such, Defendants seek remand of the
case to state court (Essex Superior).Case 1:16-cv-12383-IT Document 169 Filed 12/04/18 Page 2 of 6
STANDARD FOR SUBJECT MATTER JURISDICTION IN FEDERAL COURT
Federal district courts are courts of limited jurisdiction and may exercise jurisdiction
pursuant to 28 U.S.C. sec. 1331 when the case presents a "federal question", or pursuant to 28
U.S.C, sec. 1332 when the parties are citizens of different states ("diversity") and the amount in
controversy exceeds $75, 000.00. A case presents a federal question "when a well-pleaded
complaint establishes that federal law creates the cause of action or that the plaintiffs right to
relief necessarily depends on resolution of a substantial question of federal law", Empire
Healthchoice Assur., Inc. v. McVeigh, 547 U.S. 677, 690 (2006).
Courts have held that subject matter jurisdiction rests on the "central principle of a free
society that courts have finite bounds of authority", and further that "[cJourts must be careful to
respect these limits on their authority." Christopher v. Stanley-Bostitch, Inc., 240 F. F.3d 95,
101 (1st Cir. 2001). Notably, courts have held that if federal subject matter jurisdiction is
doubtful, those doubts should be resolved in favor of remand. See Boyer v. Snap-on Tools
Corp., 913 F.2d 108, 111 (3d Cir. 1990); Padilla~Gonzalez v. Local 1575, 635 F. Supp. 2d 105,
108 (D.P.R. 2009); In re Mass.Diet Drug Litig..338 F. Supp. 2d.198, 202 (D. Mass.2004).
The requirement of subject matter jurisdiction in the federal district courts "functions as a
restriction on federal power." Ayaz v. LiveWire Mobile, Inc.(D. Mass., 2013 quoting Fafel v.
Dipaola, 399 F.3d 403, 410 (1st Cir. 2005). And further, the existence of subject matter
jurisdiction "is never presumed". Id. In fact, Courts have held that a federal court "has an
obligation to inquire sua sponte into its own subject matter jurisdiction". Ayez, quoting
McCulloch v. Velez, 364 F.3d 1, 5 (Ist Cir. 2004),Case 1:16-cv-12383-IT Document 169 Filed 12/04/18 Page 3 of 6
In the case at bar, subject matter jurisdiction is currently premised upon diversity
jurisdiction, pursuant to 28 U.S.C. sec. 1332 with the parties being citizens of different states and
the amount in controversy exceeding $75, 000.00. However, because diversity no longer exists
in the case between the parties presently in the lawsuit, subject matter jurisdiction no longer
exists, and the case must be remanded to state court.
REMOVAL FROM STATE TO FEDERAL COURT BY DEFENDANTS WAS PROPER
A party seeking to remove a case from state court to federal court bears the burden of
persuasion as to the existence of federal jurisdiction. BIW Deceived v. Local 86, 132 F.3d 824,
831 (Ist Cir. 1997). In the instant case, Defendants, Stephen L. D'Angelo and D'Angelo Law
Group, LLC, argued the existence of complete diversity of the parties via 28 U.S.C. sec.
1332(a)(1), as Plaintiff was a citizen of Massachusetts, and Defendants were citizens of New
Hampshire. The Court properly allowed the initial removal of the case from state to federal
court based upon this existence of the requisite federal subject matter jurisdiction.
COMPLETE DIVERSITY BETWEEN PARTIES IS REQUIRED-
FEDERAL SUBJECT MATTER JURISDICTION NO LONGER MET AFTER
INTERVENTION-PLAINTIFF ALLOWED INTO SUIT
Diversity jurisdiction in federal court “requires complete diversity between the plaintiffs
and defendants in an action.” Picciotto v. Cont’! Cas. Co., 512 F.3d 9, 17 (1 Cir. 2008). A
corporation is deemed to be a citizen of each state in which it is incorporated or has its principal
place of business. 28 U.S.C. sec 1332(c) (1). Citizenship of a partnership or limited liability
company, is determined by the citizenship of all of its members. Pramco, LLC y. San Juan Bay
Marina, Inc., 435 F.3d 51, 54 (1* Cir. 2006); see also Grup Dataflux v. Atlas Global Grp., L.P.,
541 U.S. 567, 581 n. 1, 124 S.Ct. 1920 (2004). Where complete diversity does not exist, a caseCase 1:16-cv-12383-IT Document 169 Filed 12/04/18 Page 4 of 6
must be remanded to state court. See Cambridge Place Inv. Mgmt., Inc. v. Morgan Stanley &
Co., 813 F, Supp. 2d 242, 245-46 (D. Mass. 2011).
In the instant case, Intervention-Plaintiff, Jennifer M. Carrion, was permitted to intervene
in this case by order of the Court on July 28, 2017. Ms. Carrion, a resident of Lawrence, MA, is
a citizen of the state of Massachusetts, for diversity purposes. Plaintiff/Intervention-Defendant,
Saba Hashem, is a resident of Methuen, MA and a citizen of the state of Massachusetts, for
diversity purposes. Intervention-Defendant, D’Angelo & Hashem, LLC, a firm located in North
Andover, MA, is a citizen of New Hampshire (as Defendant, Stephen L. D’Angelo, a member of
the LLC, is a resident of Chester, New Hampshire), and also a citizen of Massachusetts (as
Defendant, Saba Hashem, a member of the LLC, is a resident of Massachusetts). As such, with
the addition to the suit of Intervention-Plaintiff, Ms. Carrion, there is no longer complete
diversity between the parties, and no longer federal subject matter jurisdiction. Because subject
matter jurisdiction is required, the case must be remanded to state court.
SUPPLEMENTAL JURISDICTION OF INTERVENTION-PLAINTIFF’S CLAIMS VIA
28 U. Sec. 1367 PROHIBITED AS IT IS INCONSISTENT WITH JURISDICTIONAL
REQUIREMENTS OF Sec. 1332
Pursuant to 28 U.S.C. sec. 1367(a), federal courts are permitted to exercise supplemental
jurisdiction as follows:
(a) Except as provided in subsection (b) and (c) or as expressly provided otherwise by
Federal statute, in any civil action of which the district courts have original
jurisdiction, the district courts shall have supplemental jurisdiction over all other
claims that are so related to claims in the action within such original jurisdiction that
they form part of the same case or controversy under Article III of the United States
4Case 1:16-cv-12383-IT Document 169 Filed 12/04/18 Page 5 of 6
Constitution. Such supplemental jurisdiction shall include claims that involve the
joinder or intervention of additional parties. 28 U.S.C. sec. 1367.
However, under section (b), such supplemental jurisdiction is not allowed under the following
circumstances:
(b) In any civil action of which the district courts have original jurisdiction founded
solely on section 1332 of this title, the district court shall not have supplemental
jurisdiction under subsection (a) over claims by plaintiffs against persons made
parties under Rule 14, 19, 20, or 24 of the Federal Rules of Civil Procedure, or over
claims by persons proposed to be joined as plaintiffs under Rule 19 of such rules, or
seeking to intervene as plaintiffs under Rule 24 of such rules, when exercising
supplemental jurisdiction over such claims would be inconsistent with the
jurisdictional requirements of section 1332. 28 U.S.C. 1367 (emphasis supplied).
Here, the claims of Ms. Carrion added under Rule 24 as an intervenor are not permissible under
the rubric of supplemental jurisdiction as this violates section 1367(b). Because addition of her
claims are inconsistent with the jurisdictional requirements of section 1332, specifically,
complete diversity, supplemental jurisdiction is not granted by section 1367.
CONCLUSION
Federal subject matter jurisdiction is required for any case to be heard in federal court.
Initial authority for the instant case was based on 28 U.S.C. 1332, and requires complete
diversity between the parties for the matter to proceed. With the addition of the intervention-
plaintiff, complete diversity between the parties was destroyed, as she is a citizen of
Massachusetts, as are Intervention-Defendants Saba Hashem and D’ Angelo and Hashem LLC.
5Case 1:16-cv-12383-IT Document 169 Filed 12/04/18 Page 6 of 6
Because subject matter jurisdiction no longer exists in federal court, the case must be remanded
to state court. Defendants therefore respectfully request that their Motion to Remand be allowed.
Dated: December 4, 2018
Respectfully submitted, °
Defendants,
Stephen L. D'Angelo and
D'Angelo Law Group, LLC
by their attorneys,
COSSINGHAM LAW OFFICE, PC
/sf
Kenneth A Cossingham Esq.
BBO#100970
Cossingham Law Office, PC
30 Massachusetts Ave., Suite 404
North Andover, MA 01845
Tel: 978-685-5686
Fax: 978-794-0985
kcossingham@cossinghamlaw.com
CERTIFICATE OF SERVICE
1, Kenneth A. Cossingham, Esquire hereby certify that on this 4" day of December 2018,
a copy of the foregoing Motion To Remand was served via the Court’s CM/ECF system to the
registered participants as identified on the Notice of Electronic Filing (NEF) and paper copies
will be sent to those indicated as non-registered participants.
Ash
Kenneth A, Cossingham, Esquire
Preview
Case 1:16-cv-12383-IT Document 169 Filed 12/04/18 Page 1 of 6 WICvoi4A — (¢h UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS SABA HASHEM, individually, and as a Member of, and derivatively on behalf of, D’Angelo and Hashem, LLC, Plaintiff, Civil Action No. 16-cv-12383-IT Vv. STEPHEN L. D’ANGELO, D’ANGELO LAW GROUP, LLC, and D’ANGELO AND HASHEM, LLC Defendants ee RK RE RH HOH MOTION OF DEFENDANTS, STEPHEN L. D'ANGELO AND D'ANGELO LAW GROUP, LLC, TO REMAND Now come Defendants, Stephen L, D'Angelo and D'Angelo Law Group, LLC, and respectfully submit their Motion to Remand. PROCEDURAL BACKGROUND This case was filed by Plaintiffs in state court (Essex Superior) on September 16, 2016. Defendants moved to remove the case to federal court based upon diversity jurisdiction which was allowed on November 16, 2016. Intervention-Plaintiff, Jennifer M. Carrion, was permitted to intervene in this case by order of the Court on July 28, 2017. Defendants recently retained new counsel who believe that the proper court for this matter is now state court, due to a lack of subject matter jurisdiction required in federal court. As such, Defendants seek remand of the case to state court (Essex Superior).Case 1:16-cv-12383-IT Document 169 Filed 12/04/18 Page 2 of 6 STANDARD FOR SUBJECT MATTER JURISDICTION IN FEDERAL COURT Federal district courts are courts of limited jurisdiction and may exercise jurisdiction pursuant to 28 U.S.C. sec. 1331 when the case presents a "federal question", or pursuant to 28 U.S.C, sec. 1332 when the parties are citizens of different states ("diversity") and the amount in controversy exceeds $75, 000.00. A case presents a federal question "when a well-pleaded complaint establishes that federal law creates the cause of action or that the plaintiffs right to relief necessarily depends on resolution of a substantial question of federal law", Empire Healthchoice Assur., Inc. v. McVeigh, 547 U.S. 677, 690 (2006). Courts have held that subject matter jurisdiction rests on the "central principle of a free society that courts have finite bounds of authority", and further that "[cJourts must be careful to respect these limits on their authority." Christopher v. Stanley-Bostitch, Inc., 240 F. F.3d 95, 101 (1st Cir. 2001). Notably, courts have held that if federal subject matter jurisdiction is doubtful, those doubts should be resolved in favor of remand. See Boyer v. Snap-on Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990); Padilla~Gonzalez v. Local 1575, 635 F. Supp. 2d 105, 108 (D.P.R. 2009); In re Mass.Diet Drug Litig..338 F. Supp. 2d.198, 202 (D. Mass.2004). The requirement of subject matter jurisdiction in the federal district courts "functions as a restriction on federal power." Ayaz v. LiveWire Mobile, Inc.(D. Mass., 2013 quoting Fafel v. Dipaola, 399 F.3d 403, 410 (1st Cir. 2005). And further, the existence of subject matter jurisdiction "is never presumed". Id. In fact, Courts have held that a federal court "has an obligation to inquire sua sponte into its own subject matter jurisdiction". Ayez, quoting McCulloch v. Velez, 364 F.3d 1, 5 (Ist Cir. 2004),Case 1:16-cv-12383-IT Document 169 Filed 12/04/18 Page 3 of 6 In the case at bar, subject matter jurisdiction is currently premised upon diversity jurisdiction, pursuant to 28 U.S.C. sec. 1332 with the parties being citizens of different states and the amount in controversy exceeding $75, 000.00. However, because diversity no longer exists in the case between the parties presently in the lawsuit, subject matter jurisdiction no longer exists, and the case must be remanded to state court. REMOVAL FROM STATE TO FEDERAL COURT BY DEFENDANTS WAS PROPER A party seeking to remove a case from state court to federal court bears the burden of persuasion as to the existence of federal jurisdiction. BIW Deceived v. Local 86, 132 F.3d 824, 831 (Ist Cir. 1997). In the instant case, Defendants, Stephen L. D'Angelo and D'Angelo Law Group, LLC, argued the existence of complete diversity of the parties via 28 U.S.C. sec. 1332(a)(1), as Plaintiff was a citizen of Massachusetts, and Defendants were citizens of New Hampshire. The Court properly allowed the initial removal of the case from state to federal court based upon this existence of the requisite federal subject matter jurisdiction. COMPLETE DIVERSITY BETWEEN PARTIES IS REQUIRED- FEDERAL SUBJECT MATTER JURISDICTION NO LONGER MET AFTER INTERVENTION-PLAINTIFF ALLOWED INTO SUIT Diversity jurisdiction in federal court “requires complete diversity between the plaintiffs and defendants in an action.” Picciotto v. Cont’! Cas. Co., 512 F.3d 9, 17 (1 Cir. 2008). A corporation is deemed to be a citizen of each state in which it is incorporated or has its principal place of business. 28 U.S.C. sec 1332(c) (1). Citizenship of a partnership or limited liability company, is determined by the citizenship of all of its members. Pramco, LLC y. San Juan Bay Marina, Inc., 435 F.3d 51, 54 (1* Cir. 2006); see also Grup Dataflux v. Atlas Global Grp., L.P., 541 U.S. 567, 581 n. 1, 124 S.Ct. 1920 (2004). Where complete diversity does not exist, a caseCase 1:16-cv-12383-IT Document 169 Filed 12/04/18 Page 4 of 6 must be remanded to state court. See Cambridge Place Inv. Mgmt., Inc. v. Morgan Stanley & Co., 813 F, Supp. 2d 242, 245-46 (D. Mass. 2011). In the instant case, Intervention-Plaintiff, Jennifer M. Carrion, was permitted to intervene in this case by order of the Court on July 28, 2017. Ms. Carrion, a resident of Lawrence, MA, is a citizen of the state of Massachusetts, for diversity purposes. Plaintiff/Intervention-Defendant, Saba Hashem, is a resident of Methuen, MA and a citizen of the state of Massachusetts, for diversity purposes. Intervention-Defendant, D’Angelo & Hashem, LLC, a firm located in North Andover, MA, is a citizen of New Hampshire (as Defendant, Stephen L. D’Angelo, a member of the LLC, is a resident of Chester, New Hampshire), and also a citizen of Massachusetts (as Defendant, Saba Hashem, a member of the LLC, is a resident of Massachusetts). As such, with the addition to the suit of Intervention-Plaintiff, Ms. Carrion, there is no longer complete diversity between the parties, and no longer federal subject matter jurisdiction. Because subject matter jurisdiction is required, the case must be remanded to state court. SUPPLEMENTAL JURISDICTION OF INTERVENTION-PLAINTIFF’S CLAIMS VIA 28 U. Sec. 1367 PROHIBITED AS IT IS INCONSISTENT WITH JURISDICTIONAL REQUIREMENTS OF Sec. 1332 Pursuant to 28 U.S.C. sec. 1367(a), federal courts are permitted to exercise supplemental jurisdiction as follows: (a) Except as provided in subsection (b) and (c) or as expressly provided otherwise by Federal statute, in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States 4Case 1:16-cv-12383-IT Document 169 Filed 12/04/18 Page 5 of 6 Constitution. Such supplemental jurisdiction shall include claims that involve the joinder or intervention of additional parties. 28 U.S.C. sec. 1367. However, under section (b), such supplemental jurisdiction is not allowed under the following circumstances: (b) In any civil action of which the district courts have original jurisdiction founded solely on section 1332 of this title, the district court shall not have supplemental jurisdiction under subsection (a) over claims by plaintiffs against persons made parties under Rule 14, 19, 20, or 24 of the Federal Rules of Civil Procedure, or over claims by persons proposed to be joined as plaintiffs under Rule 19 of such rules, or seeking to intervene as plaintiffs under Rule 24 of such rules, when exercising supplemental jurisdiction over such claims would be inconsistent with the jurisdictional requirements of section 1332. 28 U.S.C. 1367 (emphasis supplied). Here, the claims of Ms. Carrion added under Rule 24 as an intervenor are not permissible under the rubric of supplemental jurisdiction as this violates section 1367(b). Because addition of her claims are inconsistent with the jurisdictional requirements of section 1332, specifically, complete diversity, supplemental jurisdiction is not granted by section 1367. CONCLUSION Federal subject matter jurisdiction is required for any case to be heard in federal court. Initial authority for the instant case was based on 28 U.S.C. 1332, and requires complete diversity between the parties for the matter to proceed. With the addition of the intervention- plaintiff, complete diversity between the parties was destroyed, as she is a citizen of Massachusetts, as are Intervention-Defendants Saba Hashem and D’ Angelo and Hashem LLC. 5Case 1:16-cv-12383-IT Document 169 Filed 12/04/18 Page 6 of 6 Because subject matter jurisdiction no longer exists in federal court, the case must be remanded to state court. Defendants therefore respectfully request that their Motion to Remand be allowed. Dated: December 4, 2018 Respectfully submitted, ° Defendants, Stephen L. D'Angelo and D'Angelo Law Group, LLC by their attorneys, COSSINGHAM LAW OFFICE, PC /sf Kenneth A Cossingham Esq. BBO#100970 Cossingham Law Office, PC 30 Massachusetts Ave., Suite 404 North Andover, MA 01845 Tel: 978-685-5686 Fax: 978-794-0985 kcossingham@cossinghamlaw.com CERTIFICATE OF SERVICE 1, Kenneth A. Cossingham, Esquire hereby certify that on this 4" day of December 2018, a copy of the foregoing Motion To Remand was served via the Court’s CM/ECF system to the registered participants as identified on the Notice of Electronic Filing (NEF) and paper copies will be sent to those indicated as non-registered participants. Ash Kenneth A, Cossingham, Esquire