1See 11 U.S.C.§ 362(a)(1)(providing that the filing of a

bankruptcy petition operates as a stay of the commencement or

continuation of a judicial proceeding against the debtor).

2See 11 U.S.C. § 362 (h)(permitting recovery of actual

damages, and in certain circumstances punitive damages, where an

individual is injured by any willful violation of a stay). 

3See 11 U.S.C. § 1301 (providing for an automatic stay of

action against a co-debtor in Chapter 13 cases). 

4Heghmann also relies upon 42 U.S.C. § 1983 but fails to

identify any civil rights violations, therefore, I construe his

claims as arising solely under 11 U.S.C. §§ 362(a), 362(h) and

1301.

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Robert A. Heghmann

v. Civil No. 06-cv-003-PB

Paul J. Maguire, et al.

REPORT AND RECOMMENDATION

Pro se plaintiff Robert A. Heghmann brings this action,

pursuant to 11 U.S.C. §§ 362(a)1, 362(h)2 and 13013, alleging that

defendants have commenced eviction proceedings against him in

violation of an automatic stay entered by the United States

Bankruptcy Court for the District of New Hampshire (document no.

1).4 Seeking declaratory, injunctive and monetary relief, he

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5 As noted by Judge McAuliffe in Heghmann’s previous

action before this Court:

Mr. Heghmann is an attorney, admitted to practice

before the federal district courts in New York and

Connecticut, the Court of Appeals for the Second

Circuit, and the United States Supreme Court. Heghmann

v. Fermanian, 2000 WL 1742122 at * 1, n.1 (D.Me. Nov.

27, 2000). He is no stranger to pro se litigation, at

least some of which has been meritless. See id. at * 4

(awarding sanctions against Heghmann and concluding

that his “claims in this action were without merit from

the beginning and would have been perceived as such by

any objectively reasonable attorney.”). Nor is this

the first time that litigation has flowed from

Heghmann’s failure to honor rent and/or mortgage

obligations. See Connecticut Sav. Bank v. Heghmann,

193 Conn. 157, 474 A.2d 790 (1984). 

Heghmann v. Town of Rye, No. 04-100-SM, 2004 WL 2526417, at *1

(D.N.H. Nov. 8, 2004). According to Connecticut officials,

Heghmann was disbarred on September 28, 2005.

2

brings this action against the following defendants: John Doe and

Mary Roe, landlords of the property leased by Heghmann; Paul J.

Maguire and the P.J. Maguire Agency, managers of the leased

property; and Keri J. Marshall, Lynn Aaby and The Marshall Law

Firm, attorneys who commenced landlord tenant proceedings against

Heghmann. 

This is the third time Heghmann5 has attempted to obtain

injunctive relief and damages in this forum for alleged

violations of the Bankruptcy Code’s automatic stay provisions and 

violations of his federally protected rights arising out of

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3

eviction proceedings. His first effort proved unsuccessful when

the court dismissed all claims set forth in his original

complaint. See Heghmann v. Hafiani, No. 03-219-JD, slip op. at

2-3 (D.N.H. May 28, 2003). His second effort also proved

unsuccessful when the court dismissed his federal claims. 

Heghmann v. Town of Rye, No. 04-100-SM, 2004 WL 2526417, at *1. 

In this action, Heghmann again seeks injunctive relief and

damages, alleging that defendants have commenced eviction

proceedings against him in violation of an automatic stay in

bankruptcy. 

Background

While the precise facts underlying this dispute are unclear,

Heghmann appears to have entered into a lease agreement with John

Doe and Mary Roe for a residential property located at 2 Denbow

Road, Durham, New Hampshire. On December 20, 2004, Heghmann

filed a voluntary petition for bankruptcy under Chapter 13 of the

Bankruptcy Code (Bankruptcy Petition No. 04-14478-JMD). 

Notwithstanding the filing of the bankruptcy petition and the

entry of an automatic stay, Maguire filed a landlord tenant

action against Heghmann in Durham District Court on May 25, 2005. 

Heghmann filed a “Suggestion of Bankruptcy” on June 22, 2005,

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asserting that Maguire’s action was filed in violation of the

automatic stay and requesting the Durham District Court to

dismiss the action for lack of subject matter jurisdiction. On

June 17, 2005, Heghmann’s Chapter 13 petition was dismissed by

the United States Bankruptcy Court.

On June, 30, 2005, Heghmann filed a voluntary petition for

bankruptcy under Chapter 7 of the Bankruptcy Code (Bankruptcy

Petition No. 05-12597-JMD), which resulted in an automatic stay

entered on behalf of Heghmann and a parallel stay entered on

behalf of his wife, Beatrice. Notwithstanding the filing of the

bankruptcy petition and the entry of an automatic stay, Maguire

served a “Demand for Rent” and “Notice to Quit” on Beatrice on

October 5, 2005. The Chapter 7 petition was dismissed on

November 28, 2005. 

On December 12, 2005, Marshall filed a “Motion for Immediate

Hearing” in the landlord tenant action filed against Heghmann.

According to Heghmann, Marshall willfully prosecuted the action

against him in violation of the automatic stay in bankruptcy. To

date, Maguire and Marshall allegedly have refused to withdraw the

landlord tenant action and are attempting to enforce a writ of

possession (and presumably eviction) against Heghmann, all in

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5

violation of the automatic stay in bankruptcy.

Discussion

I. Federal Claims

In Counts One and Three of the complaint, Heghmann alleges

that Paul Maguire, Keri Marshall, Lynn Aaby and The Marshall Law

Firm willfully violated the automatic stay provisions under

Section 362 of the Bankruptcy Code, as they applied to Heghmann’s

bankruptcy, by commencing a landlord tenant action against him. 

Count Four alleges that Maguire violated the automatic stay under

Section 1301 by serving Heghmann’s wife with a Notice to Quit and

Demand for Rent.

As this court (DiClerico, J. and McAuliffe, J.) noted in

Heghmann’s earlier cases, however, the federal district court

lacks jurisdiction to entertain claims involving alleged

violations of the Bankruptcy Code’s automatic stay. See Heghmann

v. Hafiani, No. 03-219-JD, slip op. at 2; Heghmann v. Town of

Rye, No. 04-100-SM, 2004 WL 2526417, at *1. A federal district

court lacks subject matter jurisdiction over a plaintiff’s claims

arising under 11 U.S.C. § 362(h) for willful violation of an

automatic stay because all such claims must be brought in the

bankruptcy court. See Heghmann v. Town of Rye, 326 F. Supp. 2d

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6

227, 232-33 (D.N.H. 2004) (citing Eastern Equip. & Servs. Corp.

v. Factory Point Nat’l Bank, 236 F.3d 117, 121 (2d. Cir.

2001)(holding that claims under 11 U.S.C. § 362(h) must be

brought in the bankruptcy court, rather than in the district

court, which only has appellate jurisdiction over bankruptcy

cases)); Davis v. Courington (In re Davis), 177 B.R. 907, 912

(B.A.P 9th Cir. 1995)(holding that the bankruptcy court has

subject matter jurisdiction over all claims alleging willful

violation of an automatic stay)).

As explained to Heghmann in his earlier cases before this

Court, any violation of the automatic stay should have been

raised in his bankruptcy proceedings. See Heghmann v. Hafiani,

No. 03-219-JD, slip. Op. at 2; Heghmann v. Town of Rye, No. 04-

100-SM, 2004 WL 2526417, at *6. To the extent he is attempting

to appeal the bankruptcy court’s decision to dismiss his

petition, Heghmann has not followed the proper procedures under

the Bankruptcy Rules. Id. To the extent he seeks a stay of an

order of the bankruptcy court, he must proceed in the bankruptcy

court. Id. Accordingly, I conclude that this Court lacks

jurisdiction over Heghmann’s claims advanced in Counts One, Three

and Four of the complaint. 

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A second reason for dismissing Count Four is that Robert A.

Heghmann is not permitted as a pro se litigant to represent his

wife, Beatrice. While in the past he claimed to be admitted to

practice as a lawyer in other jurisdictions, he is not admitted

to practice here and is no longer licensed to practice in

Connecticut. Pro se litigants are not permitted to appear for

others in federal courts. See Herrera-Venegas v. Sanchez-Rivera,

681 F.2d 41, 42 (1st Cir. 1982)(“The federal courts have

consistently rejected attempts at third-party lay

representation.”). By law an individual may appear in federal

court only pro se or by legal counsel. Id. (citing 28 U.S.C. §

1654).

II. State Law Claims 

In Count Two of the complaint, Heghmann alleges that John

Doe and Mary Roe are liable, under the doctrine of respondeat

superior, for alleged violations of the automatic stay committed

by Maguire. Section 1367 provides that the court may decline to

exercise supplemental jurisdiction over a plaintiff’s state law

claim when:

(1) the claim raises a novel or complex issue of State

law,

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(2) the claim substantially predominates over the

claim or claims over which the district court has

original jurisdiction, 

(3) the district court has dismissed all claims over

which it has original jurisdiction, or 

(4) in exceptional circumstances, there are other

compelling reasons for declining jurisdiction. 

28 U.S.C. § 1367(c). Because I have recommended dismissal of

Heghmann’s federal claims, I also recommend dismissal of his

supplemental state law claims. See Belini v. Wash. Mut. Bank,

FA, 412 F.3d 17, 23 (1st Cir. 2005)(early dismissal of all

federal claims usually will lead to dismissal of all supplemental

state law claims); Velazquez-Rivera v. Danzig, 234 F.3d 790, 795

(1st Cir. 2000)(dismissal of pendent claims where federal claims

were dismissed). Accordingly, I recommend that this court

decline to exercise its supplemental jurisdiction over Heghmann’s

state law claims advanced in Count Two of the complaint. See 28

U.S.C. § 1367. 

Conclusion

For the foregoing reasons, I recommend that the complaint be 

dismissed.

If this Report and Recommendation is approved, the claims as

identified herein will be considered for all purposes to be the

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claims raised in the complaint. If the plaintiff disagrees with

the identification of the claims herein, he must do so by

objection filed within ten (10) days of receipt of this Report

and Recommendation, or he must properly move to amend the

complaint. 

Any further objections to this Report and Recommendation

must be filed within ten (10) days of receipt of this notice. 

Failure to file objections within the specified time waives the

right to appeal the district court’s order. See Unauthorized

Practice of Law Committee v. Gordon, 979 F.2d 11, 13-14 (1st Cir.

1992); United States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir.

1986). 

_________________________________

James R. Muirhead

United States Magistrate Judge

Date: May 23, 2006

cc: Robert A. Heghmann, pro se

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