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Perry v. Alexander

United States District Court, D. Maine

February 4, 2015

ALAN J PERRY, et al., Plaintiffs,
v.
JULIET ALEXANDER, Individually and as Trustee of Jupiter Maine Realty Trust, and PETER TINKHAM, Individually and as Trustee of Jupiter Maine Realty Trust and as Trustee of Samantha Louise Tinkham Irrevocable Special Needs Trust, Defendants

For ALAN J PERRY, NINA E PERRY, LAURA A PERRY, Plaintiffs: ALAN J. PERRY, LEAD ATTORNEY, BOOTHBY PERRY LLC, NORWAY, ME.

JULIET ALEXANDER, Individually and as Trustee of Jupiter Maine Realty Trust, Defendant, Pro se, EASTON, MA.

PETER TINKHAM, Individually and as Trustee of Jupiter Maine Realty Trust and as Trustee of Samantha Louise Tinkham Irrevocable Special Needs Trust, Defendant, Pro se, CUMBERLAND, RI.

RECOMMENDED DECISION AND ORDER

John C. Nivison, U.S. Magistrate Judge

In this action, Plaintiffs assert claims against Defendants for defamation, malicious prosecution/wrongful use of civil process, fraudulent transfer, foreclosure, breach of contract, and to recover on a promissory note. The matter is before the Court on Plaintiffs' Motion to Remand and for Award of Costs and Fees (ECF No. 6), Plaintiffs' Motion to Strike and Motion for Sanctions (ECF No. 10), and Defendant Tinkham's Motion to Transfer (ECF No. 4).[1]

As explained below, following a review of the pleadings, and after consideration of the parties' arguments, the recommendation is that the Court grant Plaintiffs' Motion to Remand, but deny Plaintiffs' request for costs and fees. In the event that the Court adopts the recommendation, Defendant Tinkham's Motion to Transfer will be moot. Plaintiffs' Motion to Strike and Motion for Sanctions are denied.

Background

Plaintiffs Alan Perry, Laura Perry, and Nina Perry filed a complaint in Maine Superior Court sometime[2] in August 2014, alleging claims of defamation, malicious prosecution, and fraudulent transfer against Defendants Peter Tinkham and Juliet Alexander, and additional claims of breach of contract, foreclosure, and breach of a promissory note against Defendant Juliet Alexander. Plaintiffs served Defendant Tinkham with the complaint on August 5, 2014. (ECF No. 6-1, PageID # 75.)[3]

On August 25, 2014, and again on or about October 6, 2014, Defendant Tinkham filed a Notice of Removal, by which notice he attempted to remove the Maine District Court case to the United States District Court for the District of Rhode Island. (ECF No. 3-8, PageID # 60; see also ECF No. 8, PageID # 86, ¶ xi.) The Rhode Island District Court rejected the filings because a notice of removal must be filed in the United States District Court for the District in which the removed action is pending.

On November 3, 2014, Defendant Tinkham filed his Notice of Removal in this Court (ECF No. 1), along with a copy of the complaint, the amended complaint, Ms. Alexander's affidavit of insufficient service of process, and motions pending in the Maine District Court. Defendant Tinkham also filed a Motion to Transfer to the District of Rhode Island or Massachusetts (ECF No. 4).

On November 14, 2014, Plaintiffs filed their Motion to Remand and for Award of Costs and Fees (ECF No. 6). Defendant Tinkham filed a consolidated Response to the Motions (ECF No. 8) on November 24, 2014. In their Reply (ECF No. 9), Plaintiffs requested that the Court strike Defendant's Response as immaterial and impertinent, pursuant to Fed.R.Civ.P. 12(f), and impose sanctions against Defendant Tinkham for the fees associated with Plaintiffs' Reply (ECF No. 10). Defendant Tinkham then filed his " All Purpose Response to Plaintiffs' Motions" (ECF No. 11), to which filing Plaintiffs filed a reply (ECF No. 12).

Discussion

A. Plaintiff's Motion to Remand (ECF No. 6)

" 'Federal courts are courts of limited jurisdiction, ' possessing 'only that power authorized by Constitution and statute.'" Gunn v. Minton, U.S., 133 S.Ct. 1059, 1064, 185 L.Ed.2d 72 (2013) (quoting Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994)). " It is to be presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary ...


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