Beaudette v. Bank of America, Inc.

Filing 13

ORDER denying 5 Motion to Dismiss and Remand; denying 6 Motion to Appoint Counsel. So Ordered by Judge Joseph A. DiClerico, Jr.(dae)

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE

Steven J. Beaudette
v.

Civil No. 11-cv-569-JD

Bank of America, Inc.
O R D E R
Steven J. Beaudette, proceeding pro se, filed suit against
the Bank of America, Inc. in state court, alleging that the Bank
of America improperly initiated foreclosure proceedings while a
loan modification was in progress.

The Bank of America removed

the case to this court based on diversity jurisdiction, 28 U.S.C.
§ 1332.

Beaudette filed an objection to removal, a motion to

dismiss and remand the case, and a motion for appointment of
counsel.

I.

Objection to Removal and Motion to Remand1
In his objection to removal, Beaudette argues that he has

the right to proceed in state court and that the Bank of America
is attempting to subvert his right through removal.

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Federal

Although Beaudette also moves to dismiss the action, the
court assumes that part of the motion is a mistake. If, however,
Beaudette intends to voluntarily dismiss his claims, the
procedure is provided by Federal Rule of Civil Procedure 41(a).

district courts have original jurisdiction over all civil actions
in which the matter in controversy exceeds $75,000 and the suit
is between citizens of different states.

§ 1332(a)(1).

For

purposes of § 1332, a corporation is deemed to be a citizen of
any state in which it is incorporated and the state where it has
its principal place of business.

§ 1332(c)(1).

A civil action

that falls within the original jurisdiction of the federal
district courts but is brought in state court may be removed to
the federal district court in the district where the state action
is pending.

28 U.S.C. § 1441(a).

The Bank of America represents that Beaudette is a citizen
of New Hampshire, and Beaudette does not dispute that
representation.

The Bank of America further represents that it

is incorporated in Delaware and has its principal place of
business in Charlotte, North Carolina, which Beaudette does not
dispute.

Therefore, the Bank of America and Beaudette are

citizens of different states.

Beaudette does not challenge the

jurisdictional amount in controversy.

Because the Bank of

America has demonstrated the elements of diversity jurisdiction,
this court has original jurisdiction over Beaudette’s action,
making removal appropriate under § 1441(a).
In his motion to remand, Beaudette contends that the Bank of
America did not remove the case within the thirty days allowed
2

under 28 U.S.C. § 1446(b).

He states that because his complaint

was served in the morning of November 8, 2011, and the notice of
removal was not filed until the evening of December 8, 2011,
removal was untimely.

Beaudette is mistaken.

When the period

allowed is stated in days, the time is counted in days, not
hours.

Fed. R. Civ. P. 6(a)(1).

The Bank of America filed its

notice of removal on the thirtieth day, within the time allowed
under § 1446(b).

II.

Motion for Appointment of Counsel
Beaudette moves for appointment of counsel to represent him

in this case.

In support, Beaudette states that he “is without

funds to pay” for representation and that “THE fed Court system
is a strain for gifted attorneys, let alone a lay person.”
Beaudette has not requested nor been granted in forma pauperis
status under 28 U.S.C. § 1915(a).
Section 1915(e)(1) allows the court to request an attorney
to represent any person who is unable to afford representation.
Beaudette, however, has not provided any evidentiary support for
his statement that is unable to afford representation.
e.g., § 1915(a).

See,

A plaintiff in a civil action has no

constitutional right to appointed counsel.

3

DesRosiers v. Moran,

949 F.2d 15, 23 (1st Cir. 1991).

Therefore, Beaudette has not

provided any supported reason for appointment of counsel.

Conclusion
For the foregoing reasons, the plaintiff’s motion to dismiss
and remand (document no. 5) and his motion for appointment of
counsel (document no. 6) are denied.

SO ORDERED.

____________________________
Joseph A. DiClerico, Jr.
United States District Judge
January 5, 2012
cc:

Steven J. Beaudette, pro se
Christopher J. Somma, Esquire

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