Motion,Ex Parte: Saba Hashem Individually and as a member of And derivatively on behalf of D'Angelo and Hashem, LLC vs. D'Angelo, Stephen L. et al

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                                fi MOTI OOHTFTY AL
‘Case 1416-cv- -12383-IT Document 173 Filed 12/05/18 Page 1 of 4

1

   

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS.

 

SABA HASHEM, individually & as Manager
of D ‘Angelo &. Hashem, LLC, é

Plaintig/Defendant-in-Counterclaim
vy. :

Stepken D'Angelo, individually and ‘as a
-Manager of D'Angelo & Hashem, LLC, and
D. ‘Arigelo Law Group; D'Angelo & Hashem,
LLC;and D'Angelo Law Group, LLC,
Defendants/Plaintiffs -in-Counterclaim

No. 1:16-cv-12383-IT

eee

 

Je ennifer M. Carsion,7

  

‘SABA HASHEM, STEPHEN D’ANGELO,
D'ANGELO &-HASHEM, LLC, D'ANGELO
LAW GROUP, LLC.
Intervention-Defendants,
Reach and Apply Defendants

eee SS Se

)

“ INTERVENOR PLAINTIFF'S OPPOSITION TO THE DEFENDANTS’, STEPHEN ~
D’ANGELO & D'ANGELO LAW GROUP, MOTION TO REMAND

a
Pursugnitito U.S, Dist. Ct. Rules D. Mass., LR 7.1, the Defendants’ Motion to Remand must *

be stricken as nioved by the Intervention Plaintiff, Jennifer M. Carrion, in light of the Defendants’
Stephen D'Angelo & D'Angelo Law Group ‘LLC - failure to confer with counsel in advance, as
required by Local Rule 7.1 of U.S. Dist. Ct. Rules D. Mass. Intervention Plaintiff respectfully
submits this Opposition to the Defendants’ Motion to Remand in the alternative to her Motion to

Strike.

-As Grovinds’ Therefore, Intervention Plaintiff submits that diversity is not destroyed :

By

by the order to Intervene, dated July 28, 2018, under federal law. See American Fiber &

ret,

Finishing, Ine. ve Tyco Healthcare Group, LP, 362 F.3d 136,. 141-142 (2004), In re

Olympic Mills Corp., 477 F.3d 1, 11- 12, (2007).

4

—Case 1:16-cv-12383-IT Document 173 Filed 12/05/18 Page 2 of 4

 

action commences, and once jurisdiction is established, it cannot be affected by a subsequent

change of domicile.

 

Civil Practice § 3:
- Hawes vy. Club Ecuestre El Comandante, 598 F.2d 698, 701-702 (1st Cir.-1979) (“Domicile at ©

the time suit is filed is the test and jurisdiction once éstablished is not lost by a subsequent

 

change i in citizenship. ”). Valentin v. Hospital Bella Vista, 254 F.3d 358 (1st Cir.2001) (For
federal jurisdictional. purposes, diversity of citizenship must be determined as of the time of
suit’), Mr. D'Angelo is a resident of Chester NH where he owns his home, and even ran for
state house of representatives for Rockingham County. (See Exhibit A) Mr. D’Angelo lost the -
election in November 2018. The Court of Appeals for the First Circuit considers the place
where one is registered to vote to be a “weighty” factor in the jurisdictional equation. Id
citing. Bank One, Texas, N.A. v. Montle, 964 F.2d 48, 50 (1st Cir, 1992). “Where the written
submissions do not; resolve the issue, an evidentiary hearing may be required.” Id. citing
Padilla-Mangualw. Pavia Hosp., 616 F.3d 29 (1st Cir. 2008). Intervention Plaintiff requests
an evidentiary haring if needed,
For diversity jurisdiction to exist, there must be complete diversity among the parties;
in other words, none of the necessary parties on one side of a case may be a resident of the
same state as any party on the other side. Id at Fn..18. This rule does not apply in instances
of statutory interpleader under 28 U.S.C.A. § 1335 and certain class actions. Id at Fn 19. In
determining whether there is diversity jurisdiction, courts will consider indispensable parties

not formally nai gain the action. Id at Fn 21.

 

 

Intervention Plaintiff further cites as guidance, In re Olympic Mills Corp., 477

1

F.3d 1, 11-12, (2007).’

Case'1:16-cv-12383-IT Document 173 Filed 12/05/18 Page 3 of 4

“In similar situations, the weight of authority holds that claims launched by
necessary but dispensable, nondiverse defendant-intervenors do not defeat the
original jurisdiction (diversity) that obtained at the commencement of the
action.® See; e, .g., Mattel, Inc. v. Bryant, 446 F.3d 1011, 1013 (9th Cir.2006) (per
curiam); Auyora, 442 F.3d at 1025-26; Grimes v. Mazda N. Am. Operations,
: , 578 (6th Cir.2004); Viacom Int, Inc., 212 F.3d at 726-28; United
. Capitol Ins. Co. uv. Kapiloff, 155 F.3d 488, 492 (4th Cir.1998); Dev. Fin. Corp.

"uv. Alpha. ‘Hous, & Health Care, Inc., 54 F.3d 156, 160 (8d Cir.1995); see also
. Freeport-McMoRan, 498 U.S. at 428, 111 S.Ct. 858 Citing Wichita RR. &
Light Co. v. Pub. Util. Comm’n of Kan., 260 U.S. 48, 54, 48 S.Ct. 51, 67 L.Ed.
124 (1922) (“Jurisdiction once acquired .. is not divested by a
subsequent change in the citizenship of the parties. Much less is such
jurisdiction defeated by the intervention, by leave of the court, of a
party whose presence is not essential to a decision of the controversy
between the original parties.”)). The present case offends the
_ compléte-diversity rule even less: in adversary proceeding No. 03-0090
(the case at bar), Coachman and Olympic Mills made no claims against
any partyand no party made any claims against them. (This is not the

_ case,:offcourse, in adversary proceeding No, 03-0042, which is not

. before us.)10""

 

 

 

Ms. Carrion is not an ‘indispensable party to this lawsuit. The lawsuit at bar would
continue by diverse citizens if Ms, Carrion had not been allowed to intervene as a Creditor
Execution holder. , :

Secondly, the Intervention Plaintiffs claims involve a federal question without
limitation, — collection of Jennifer M. Carrion’s civil rights executions, That is another
independent srpund justifying federal jurisdiction of this matter to which Ms. Carrion has
right to intervbte under a federal law question basis of subject matter jurisdiction.

‘Third, Intervention Plaintiff and Plaintiff has entered into confidential settlement
agreement with Intervention Defendant, Saba Hashem, individually, on November 28, 2018.
This confidential settlement arrangement is finalizing February 1, 2019. Therefore,
Intervention Plaintiffs dismissal against Intervention Defendant Mr. Hashem, individually,

would restore complete diversity, making Defendant’s motion to remand moot. This can be

filed today and entered on February 1. 2019.Case'1:16-cv-12383-IT Document 173 Filed 12/05/18 Page 4 of 4

, _ This is a mere delay tactic by the Defendants, who removed this case to federal court
in the first place from state court, Defendants answered the Intervention Plaintiffs :
Complaint and make motion to delay reach of a federal preliminary injunction and summary
judgment that must be allowed. Defendants have history-of misrepresenting assets in prior
divorce actions see Exhibit B at page 2, This Honorable Court must retain jurisdiction.
Intervention Piaintift submits for more time to search this issue such as a week.

For all'these reasons, Defendants motion to remand must be denied.

Respectfully Submitted,
Jennifer M. Carrion,
Intervention-Plaintiff,
By Her Attorney,

8 {si Mernaysa Rivera-Bujosa
Mernaysa Rivera Bujosa, Esq. BBO
#665965 :
Rivera-Bujosa Law, P.C.
Mato C-2 Shipway Place
. Charlestown, MA 02129

P: (617) 398-6728

F: (617) 389-6730

E: mernaysa@riverabujosalaw.com

CERTIFICATE OF SERVICE
SUFFOLK, ss, | ‘December 5, 2018

Thereby certify that a copy.of this pleading was today served via the.Court’s CM/ECF -
filing system upon all registered users in this case, including counsel for defendants.

/s/f Merna: ivera Bujosa.
Mernaysa Rivera-Bujosa, Esq.

iat

Certificate Of Compliance

I, Mernaysa Rivera-Bujosa, Eaq., hereby certify that I have complied with the
requirements of Mass. Fed. Dist. Ct. Local Rule 7.1.

/s/- Mernaysa Rivera-Buiosa, Esq.

Mernaysa Rivera-Bujosa, -

aCase 1:16-cv-12383-IT Document 173-1 Filed 12/05/18 Page 1 of 19

~ Exhibit “A”12512018

 

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5SCase 1:16-cv-12383-IT Document 173-1 Filed 12/05/18 Page 7 of 19

‘ Exhibit “B”Case 4:16-cv-12383-IT Document 173-1 Filed 12/05/18 Page 8 of 19

D'Angelo. v. NH Supreme Court, et al. 12-CV-411-SM 12/20/12
. UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE
Sten! hen L. -D/Angelo,
* Plaintiff 77

tn +
.v. nd Case No. 12-cv-411-SM

‘ ora Opinion No. 2012 DNH 204

New Hampshire Supreme Court, and

Brian Getmain, Esq.,—
: - Defendants

ORDER

The plaintiff, Stephen D’Angelo, appears pro se (although he
is an attorney). He brings this action seeking compensatory,
declaratory, ‘and injunctive relief, asserting that the state
courts vidlated his Fifth and Fourteenth Amendment rights during
the course of child support proceedings to which he was a party.
The Magistrate Judge has reviewed the complaint in due course and
has filed a formal Report and Recommendation, in which she
-recommends dismissal of all D‘Angelo’s claims for lack of ‘subject:
Matter jurisdiction, after applying the Rooker-Feldman doctrine.
Defendants also move to dismiss all of plaintiff’s claims.

ee
Plaintiff objects.
You-

 

» The Report and Recommendation is adopted in part,
defendants’ motions to dismiss are granted, and all. of

plaintiff's claims are dismissed.tsi

Case L 16- Cv-12383-IT Document 173-1 Filed 12/05/18 Page 9 of 19

Background
D‘Angelo has been involved in an ongoing dispute over his
child. support cbligations since approximately 2006. The New
Hampshire Circuit Court, 10th Circuit, Family Division (the

“Derry Family’ Court") conducted a number of hearings and issued

 

several or ers in an effort to resolve D‘Angelo’s financial
obligations to his son, In those various orders, the court
‘observed that, D'Angelo “has a well-documented history of

thwarting the discovery process and of selectively excluding

~pelevant financial information to the detriment of the

Petitioner,” Complaint, Exhibit H (document no. 1-8), Order dated

May 15, 2012 (“DFC Order”) at 1 (quoting a prior order). It also

noted that it “had “already found Mr. D’Angelo in Contempt of
Court on ‘multiple occasions.” Id. at 3. The court went on to

observe that D’Angelo (a practicing attorney) :

would represent that his gross income ranges from
$29,500 to a high of $93,387.00 while being able to
travel: extensively, own two Porsche automobiles,
purchase a 40ft yacht for $190,000.00, own several
automobiles to include a Lexus, and maintain a
lifestyle that would indicate by his travel,
entertainment, and expenditures that he has disposable
‘monies in-excess of those stated on his Financial
affidavit.

 

o
Id. at 2, Given those ongoing concerns, in September of 2011,

the court appointed Attorney Brian Germaine as a Commissioner, to:Case 1:16-cv-12383-IT Document 173-1. Filed 12/05/18 Page 10 of 19

‘investigate and report to the court with regard to D’Angelo’s

gross income from 2006 forward.

In May of 2012, the court conducted yet another hearing, to
address several pending motions. At that hearing, Commissioner
Germaine presented his findings. The court determined them to be
well-supported and credible, and adopted them as to D’Angelo’s
gross income from 2006 forward. DFC Order at 10. It also found,
“by clear and convincing evidence that [D’Angelo] had the ability
‘to make [past support payments] to the Petitioner and chose to
pay his own pills despite being cautioned by this Court.” DFC
Order at 4. Tt then held D’Angelo in contempt for having failed
to pay past-due child support obligations, entered judgment in
favor of Deangelo’s former wife in the amount of more than
$110,000.00, and modified D’Angelo’s monthly child support
obligations going forward. DFC Order at 10-12. D’Angelo filed a
Notice of Discretionary Appeal to the New Hampshire Supreme

Court, but the court declined to hear his appeal. This

litigation followed.

 

we
In his complaint, D’Angelo advances nine separate claims
against the New Hampshire Supreme Court (“NHSC”) and Attorney

Germaine.- They can be summarized as follows:pot, - ne lee

:16-cv-12383-IT Document 173-1 Filed 12/05/18 Page 11 of 19

  
 

1. .The Derry Family Court (over which the NHSC
’ has supervisory authority) violated
plaintiff's Fifth and Fourteenth Amendment
rights when it refused to hold an evidentiary
hearing prior to entering an order modifying
hig child support obligations;
2. The“WHSC violated plaintiff's Fifth and
Fourteenth Amendment. rights when it declined
» to grant his notice of appeal; and

3. The court-appointed commissioner, Brian
Germaine, violated plaintiff’s federally
protected constitutional rights, and
committed a variety of state common law
torts, when he made allegedly false
statements about plaintiff to the family
court.

: D‘ Angelo seeks the following relief: (a) an injunction to prevent
- “the Derry District Court from implementing, enforcing or -
otherwise taking any action” on its order of May 15, 2012,
Complaint at para. 112; (b} monetary damages against the NHSC to
“fairly and adequately compensate Plaintiff” for the court’s
“reckless and wanton” refusal to review the decisions of its
family courts, Complaint at paras. 119 and 122; and (c) monetary
damages against Attorney Germaine for having violated plaintiff's

federally protected constitutional rights and for having

=

committed m ferous common law torts.
aeCase 1:16-cv-12383-IT Document 173-1 Filed 12/05/18 Page 12 of 19

Discussion
I. The Report and Re: ion.

The Magistrate Judge concluded that the Rooker-Feldman

doctrine deprives this court of subject matter over each of

 

| D’Angelo’s claims and, therefore, recommended that they be

dismissed. In reaching that conclusion, she observed:

D’Angelo’s claims are, at their core, the claims of a
disgruntled litigant, seeking federal district court
review of state court judgments, filed after the state
proceedings have ended, and rooted in the belief that
the judgments are wrong and injurious to him. To
adjudicate D’Angelo’s claims, this court would
necessarily be called upon to review the validity of
the DFC’s order and the NHSC’s decision to decline

D’Angelo!s appeal. The Rooker-Feldman doctrine
precludes .such review by this court, insofar as

D’Angelo‘s federal claims are inextricably intertwined

with the state court decisions at issue.
Report and Recommendation, at 5-6. With respect to D’Angelo’s
requests for injunctive relief, as well as his efforts to
collaterally attack various decisions of the state courts as .
“unlawful” or “unconstitutional,” this court plainly lacks .
subject matter jurisdiction under the Rooker-Feldman doctrine.
See also The. Anti Injunction Act, 28 U.S.C. § 2283.

Given his dissatisfaction with the Family Court's order and
the NHSC’s decision not to entertain his appeal, D’Angelo should :
‘have appealed to the United States Supreme Court. His remedy was

not to- file an action in federal court seeking to collaterally

5re

Case 1:16-cv-12383-IT Document 173-1 Filed 12/05/18 Page 13 of 19

challenge those final state court decisions. Count one of his

complaint is, therefore, dismissed.

But, as to D‘Angelo’s remaining claims, whether the court
has subject matter jurisdiction is open to some debate. It is
certainly arguable that the court has jurisdiction over his
constitutional challenge to New Hampshire Supreme Court Rule 3,
as well as’ his state and federal claims against Attorney
Germaine, ‘ginee resolving those claims would not seem to require
the court to review the validity of the state court decisions
referenced in D’Angelo’s complaint. Accordingly, the court turns

to defendants’ motions to dismiss.
: :

II:. nda: s tions to Di

Defendants also claim that many of D‘Angelo's claims must be
dismissed for lack of subject matter jurisdiction under the
Rooker-Feldman doctrine, And, defendants assert that D’Angelo’s

remaining claims must be dismissed for failure to state a claim.

A. Count Two - Supreme Court Rule 3.
In count two of his complaint, D’Angelo challenges the
constitutionality of NHSC Rule 3, which provides, in relevant

part, ‘that the following types of appeals are not “mandatoryrs , sos ste : bee . tee

Case 1:16-cv-12383IT Document 173-1 Filed 12/05/18 Page 14 of 19

appeals” (meaning that the court may, in its discretion, decline

“to hear any such appeal from a lower court order) :
(9) an appeal from a final decision on the merits
issued in,'.or arising out of, a domestic relations
Matter f ea under RSA Title XLIII (RSA chapters 457 to .
461- ay 7? provided, however, that an appeal from a final

diverce decree or decree of legal separation shall be a
mandatory appeal.

   

Rule 3, Rules. of The Supreme Court of the State of New Hat mpshire
‘(West 2012) . D‘Angelo filed such a discretionary appeal to the
NHSC, challenging. the May 15, 2012, order of the Derry Family
Court. The ‘NHSC declined to hear his appeal and, in so doing,

let the ordernof the Derry Family Court stand.

 

D‘ Angelo asserts that “Rule 3 promulgated by the New
Hampshire Supreme Court violate[s] the Fourteenth (14th) and
Fifth (5th) Amendments Due Process Rights of the United States
Constitution.” Complaint at para. 114. Although his complaint
and subsequent filings are unclear, it seems D'Angelo believes he
has a constitutionally protected procedural due process right to

an_appeal of the Derry Family Court’s order. He is incorrect.

  

Inited States vy MacCollom, 426 U.S. 317, 323 (1976)

 

(“The Due Process Clause of the Fifth Amendment does not
establish any right to an appeal.”); Griffin v. Illinois, 351

ULS. 12, 28 (1956) (* [A] State is not required by the FederalCase 1:16-cv-12383-IT Document 173-1 Filed 12/05/18 Page 15 of 19

: i
Constitution to provide appellate courts or a right to appellate

review at all.”).

O£ course, “[w]hen an appeal is afforded, . . . it cannot be

granted some litigants and capriciously or arbitrarily denied

 

to others’ without violating the Equal Protection Clause.”

Lindsey v, Normet, 405 U.S. 56, 77 (1972}. Here, however,
“nothing ‘in D’Angelo’s complaint suggests that Rule 3 operates to.
arbitrarily” or “capriciously” deny some state court litigants
an opportunity to appeal to the NHSC, while allowing others to do
so. Rule 3 does not unconstitutionally distinguish between
different, clasdes or categories of litigants. Rather, it
pemissiBly’ distinguishes between different types of family court

orders ~ gome of which the NHSC has determined it will always

 

entertain on appeal, while others are subject to the court’s

: '
exercise of discretionary appellate authority.

In other words, all similarly situated litigants in the

State’s family, courts are treated equally and the Equal

Protection Clause of the Constitution is not offended by Rule 3. -

Count two ‘Of D'Angelo’s complaint is, therefore, dismissed for

failure to state a claim.Casé 1:16-cv-12383-IT Document 173-1 Filed 12/05/18 Page 16 of 19

B. ree - Failur ervi

 

In count three of his complaint, D’Angelo alleges that the
NHSC “recklessly and wantonly allowed its family courts to make
decisions without hearing, following law, and decide matters

without xr ew or the right of appeal.” Complaint at para. 120.

 

He seeks ‘a monetary award from the NHSC “in an amount that will
fairly and adequately compensate [him] for damages.” id. at
para, 122. Plainly, however, the Justices of the NHSC are
entitled to judicial immunity from any such claim. See, e.g.,
Pierson v. Ray, 386 U.S. 547, 553-54 (1967) (“Few doctrines were
More solidly established at common law than the immunity of

judges from 13 ability for damages for acts committed within their

 

urisdiction, as this Court recognized when it adopted
the doctrine, in [1872]. This immunity applies even when the
judge is accused of acting maliciously and corruptly, and it is
not for the ‘protection or benefit of a malicious or corrupt
judge, but for the benefit of the public, whose interest it is

that the judges should be at liberty to exercise their functions

with independe nce and without fear of consequences.”) (citations,

 

and interiial punctuation omitted); Mixéles v. Waco, 502 U.S. 9,
11: (1991) “(bike other forms of official immunity, judicial
immunity is an immunity from suit, not just from ultimate
‘assessment of damages.”). Moreover, D’Angelo'’s claim for

monetary damages against the New Hampshire Supreme Court is' Case 1:16-cv-12383-IT Document 173-1 Filed 12/05/18 Page 17 of 19

_ barred by tlie Bleventh Amendment. See generally Pennhurst St
Sch, & Hosp.-v. Halderman, 465 U.S. 89, (1984); Arizonans for
Official English v. Arizona, 520 U.S. 43 (1997).

 

Count. three of D’Angelo’s complaint is dismissed for failure

to state a claim.

c. claims Against Commissioner Brian Germaine.

“mA counts four through nine of his complaint, D’Angelo
, advances vaicious federal constitutional and state common law ,
claims against ‘the commissioner appointed by the Derry Family
Court, Attorney Brian Germaine. Among other things, D’Angelo
says Germaine “failed to perform a reasonable investigation,.”
Complaint at para, 125, “misrepresented material facts to the

“court,” id.‘at 128, and. “under color of state law’ violated

“plaintiff's due process rights,” id. at 133.
Pp a :

It is beyond dispute that New Hampshire's family court’s

have the aut: ity to appoint commissioners in divorce

 

proceedings. _See In re O'Neil, 159 N.H. 615, 624 (2010); Walker
wy. Walker, ‘119. N.H. 551, 553-54 (1979). And, as a court- :
appointed commissioner, Germaine was cloaked with absolute quasi-
judicial ‘immunity ~- immunity that shields him from .precisely. the

type of:claims advanced by D'Angelo. See, e.g., Nystedt v.

10 ~Cage 1:16-cv-12383-IT Document 173-1 Filed 12/05/18 Page 18 of 19

‘Nigro, 700 F.3d 25, 30 (1st Cir. 2012) ("The doctrine of quasi-
judicial immunity provides absolute immunity for those ‘who

perform tasks that are inextricably intertwined with the judicial

 

function. - doctrine is rooted in the wise idea that those
‘ wiio perform adjudicative funetions require a full exemption from
Tiability.”) (citations and internal punctuation omitted). See
generally ¢ Leaving exr_v. Saxner, 474 U.S. 193, 199-200 (1985); Cok
wv. Cosentino, 876 F.2d 1, 2-3 (1st Cir. 1989).
Accordingly, counts four through nine of D’Angelo’s

complaint’ are’ dismissed for failure to state a claim.

 

Conclusion
For the foregoing reasons, as well as those set forth in

defendants’ ‘memoranda, the court:

1. adopts the Magistrate Judge’s, Report and
Recommendation (document no. 8) to the extent
it recommends. dismissal of D’Angelo’s efforts
to collaterally chalienge orders issued by
the state courts; as well as his requests for

. dnjwictive relief, as set forth in counts one
“and two of his. complaint; and
2. grants defendants’ motions to dismiss
: (documents no. 9 and 11). D‘Angelo’s claims
for compensatory and declaratory relief, as
set forth in counts two through nine, are
dismissed for failure to state a claim.

11Case 1:16-cv-12383-IT Document 173-1 Filed 12/05/18 Page 19 of 19

The Clerk of Court shall enter judgment in accordance with

this order and close the case,

SO ORDE!

 
   
   

 

SYeven Jy McAULLEte
Cnited States District Judge

 
 

De¢genber 20, 2012

‘cc: «Stephen L, D’Angelo, pro se

. Nancy J. Smith, Esq.
Willian C. Saturley, Esq.
Williaa H, Whitney, Esq.

ig

12