1Frederico is himself a lawyer practicing in Massachusetts. 

The student loan at issue in this case was obtained to finance

Frederico’s law school education.

UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Access Group, Inc.

v. Civil No. 06-cv-275-JD

Daniel C. Frederico

O R D E R

On February 24, 2006, Access Group, Inc., commenced an

action against Daniel Frederico in Rochester, New Hampshire,

district court by serving him with a summons alleging that he had

defaulted on an Access Group student loan. In a subsequent

petition to the state court, Access Group requested permission to

attach $8,665.90 of Frederico’s assets. Frederico filed a motion

to dismiss, asserting that Access Group’s lawsuit was time-barred

and that the state court lacked jurisdiction to hear the case. 

Following a hearing on April 24, the state court denied the

motion to dismiss and granted the petition to attach. On July

25, Frederico, acting pro se,1 filed a notice of removal

asserting federal question jurisdiction. See 28 U.S.C. § 1331. 

Access Group now moves to remand to the state court, arguing that

Frederico’s notice of removal was untimely and fails to specify

Case 1:06-cv-00275-JD Document 20 Filed 10/05/06 Page 1 of 9
2

any “federal question” for this court. Access Group also moves

to strike the answer and counterclaim Frederico filed with this

court, and requests an award of the attorney fees and costs

incurred as a result of the removal of this case. 

A defendant may remove a state court civil action to a

federal court, sitting in the district and division embracing the

place where the state action is pending, so long as the federal

court has original jurisdiction. 28 U.S.C. § 1441(a). In cases

where diversity of citizenship jurisdiction is lacking, a

defendant may remove if one of the plaintiff’s claims arises

under federal law. Id. § 1331 (“The district courts shall have

original jurisdiction of all civil actions arising under the

Constitution, laws, or treaties of the United States.”); id. §

1441(b) (providing that state cases involving a federal question

may be removed to federal court). A case arises under federal

law if the plaintiff’s “well-pleaded complaint establishes either

that federal law creates the cause of action or that the

plaintiff’s right to relief necessarily depends on resolution of

a substantial question of federal law.” Franchise Tax Bd. v.

Constr. Laborers Vacation Trust, 463 U.S. 1, 27-28 (1983); see

also Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804, 808

(1986); Roselló-Gonzáles v. Calderón-Serra, 398 F.3d 1, 10-11

(1st Cir. 2004). 

Case 1:06-cv-00275-JD Document 20 Filed 10/05/06 Page 2 of 9
3

To remove such a proceeding, the defendant must file a

notice of removal within 30 days of receiving the initial

pleading setting forth the federal cause of action. 28 U.S.C. §

1446(b). If the initial pleading does not allege a removable

cause of action, the defendant may file a notice of removal

within 30 days of receiving “a copy of an amended pleading,

motion, order or other paper from which it may first be

ascertained that the case is one which is or has become

removable.” Id.; see also Caterpillar Inc. v. Lewis, 519 U.S.

61, 68-69 (1996) (“In a case not originally removable, a

defendant who receives a pleading or other paper indicating the

post commencement satisfaction of federal jurisdictional

requirements . . . may remove the case to federal court within 30

days of receiving such information.”).

The obvious federal issue in this case is the question of

whether Frederico’s debt was discharged in bankruptcy

proceedings. According to an affidavit filed by Frederico, a

bankruptcy court in Chapter 7 proceedings granted him a full

discharge of his debts in 2001. Access Group had anticipated

this defense. In its state court summons, Access Group asserted

that Frederico had failed to file a dischargeability complaint

with the bankruptcy court with respect to the Access Group loan,

and, in any event, that the Access Group loan is a nonCase 1:06-cv-00275-JD Document 20 Filed 10/05/06 Page 3 of 9
2Because it is unnecessary to the resolution of this case,

the court takes no position as to whether Frederico would

ultimately have been entitled to a federal forum for

consideration of the bankruptcy issue had the issue been raised

in a timely notice of removal.

4

dischargeable debt. See O’Brien v. First Marblehead Educ. Res.,

419 F.3d 104, 106 (2d Cir. 2005) (holding that student loan was

non-dischargeable because it was funded in part by a governmental

or non-profit institution). Had Frederico timely filed a notice

of removal upon service of the summons, he could have argued

that, although Access Group did not directly allege a cause of

action “arising under” federal law, Access Group’s right to

relief turns on the resolution of a substantial question of

federal law -- the dischargeability of Frederico’s debt under

bankruptcy law. See Roselló-Gonzáles, 398 F.3d at 10-13;

Templeton Bd. of Sewer Comm’rs v. Am. Tissue Mills of Mass.,

Inc., 352 F.3d 33, 36 (1st Cir. 2003).2 But, because Frederico’s

notice of removal was filed five months after he received the

summons, which explicitly put him on notice of the federal issue,

that argument is no longer available. 

Frederico attempts to maneuver around the lateness of his

notice of removal by claiming that he was unaware of any federal

question until he was served with the promissory note from which

Access Group’s lawsuit arises. He claims that the federal

Case 1:06-cv-00275-JD Document 20 Filed 10/05/06 Page 4 of 9
5

question springs, not from the bankruptcy issue, but from the

terms of the promissory note itself, providing that “the

provisions of this promissory note will be governed by federal

laws and the laws of the state of Ohio.” He claims that his

notice of removal was timely because he was not served with the

promissory note until June 25, 2006.

Frederico’s argument is frivolous as a matter of both fact

and law. As a factual matter, Frederico himself, at the April 24

hearing, cited the promissory note’s choice-of-law provision in

support of his argument that the state court lacked jurisdiction. 

Thus, Frederico possessed the promissory note, and was aware of

its choice-of-law provision, well before June 25. 

Frederico attempts to blunt the force of this logic by

arguing that his possession of the promissory note at the April

24 hearing should not be considered a receipt of “other paper,”

triggering the 30-day removal clock. See 28 U.S.C. § 1446(b). 

He argues that, at that time, the promissory note was merely

Access Group’s unsworn exhibit. The case did not become

removable, he contends, until he was formally served with Access

Group’s request for admissions and answers to interrogatories,

both of which attached the promissory note. 

Although federal courts have found a wide variety of

material to constitute “other paper” for the purposes of §

Case 1:06-cv-00275-JD Document 20 Filed 10/05/06 Page 5 of 9
6

1446(b), see Parker v. County of Oxford, 224 F. Supp. 2d 292, 294

(D. Me. 2002) (collecting examples, including, inter alia,

affidavits, correspondence between parties, answers to

interrogatories, and documents produced in discovery), the case

law does not reveal a categorical bright-line rule. Compare,

e.g., Huffman v. Saul Holdings Ltd. Partnership, 194 F.3d 1072,

1078-79 (10th Cir. 1999) (plaintiff’s “voluntary and unequivocal”

deposition testimony constituted “other paper”), with Karambelas

v. Hughes Aircraft Co., 992 F.2d 971, 974-75 (9th Cir. 1993)

(plaintiff’s “speculative” deposition answers did not). See also

14C Charles Alan Wright, et al., Federal Practice and Procedure §

3732 at 300 (3d ed. 1998) (“[T]he courts are not always

consistent in their treatment of Section 1446(b).”). But the

critical question in any case is whether the material,

voluntarily produced by the plaintiff, unequivocally establishes

federal jurisdiction. See Huffman, 194 F.3d at 1078. 

Here, if the court were to accept Frederico’s legal premise

for federal jurisdiction, which, as explained below, it does not,

the promissory note itself would be conclusive. The aim of the

removal statute is to make certain “that a defendant has an

opportunity to assert the congressionally bestowed right to

remove upon being given notice in the course of the case that the

right exists.” Id. (quoting Wright, supra at 306). The record

Case 1:06-cv-00275-JD Document 20 Filed 10/05/06 Page 6 of 9
7

here demonstrates that Frederico had “ascertained” his theory for

federal jurisdiction no later than the April 24 hearing. 28

U.S.C. § 1446(b) (providing that the defendant’s receipt can be

accomplished “through service or otherwise”). Thus, his notice

of removal was untimely.

Moreover, as a legal matter, while the promissory note’s

choice-of-law provision refers to federal law, neither the note,

nor Frederico’s opposition papers, point to any specific federal

law or right that requires this court’s consideration. See

Templeton, 352 F.3d at 37 (“[A] right or immunity created by the

Constitution or laws of the United States must be an element, and

an essential one, of the plaintiff’s cause of action.”). The

right to a federal forum cannot be created contractually by a

choice-of-law provision, cf. Chicago Typographical Union No. 16

v. Chicago Sun-Times, Inc., 935 F.2d 1501, 1504-05 (7th Cir.

1991), and principles of federalism prevent this court from

interfering in a state proceeding concerning a cause of action

traditionally governed by state law. See Merrell Dow, 478 U.S.

at 810-11. The defendant seeking removal bears the burden of

establishing federal jurisdiction. See Danca v. Private Health

Care Sys., Inc., 185 F.3d 1, 4 (1st Cir. 1999). Frederico has

failed to do so here.

Although Access Group styles its request for attorney fees

Case 1:06-cv-00275-JD Document 20 Filed 10/05/06 Page 7 of 9
8

and costs as a Rule 11 motion for sanctions, see Fed. R. Civ. P.

11, the removal statute also includes a fee-shifting provision. 

See 28 U.S.C. § 1447(c) (“An order remanding the case may require

payment of just costs and any actual expenses, including attorney

fees, incurred as a result of the removal.”); Martin v. Franklin

Capital Corp., 126 S. Ct. 704, 711 (2005) (“[C]ourts may award

attorney’s fees under § 1447(c) . . . where the removing party

lacked an objectively reasonable basis for seeking removal.”). 

In light of the court’s finding that Frederico’s notice of

removal was frivolously filed, Access Group is entitled to

collect the attorney fees and costs incurred as a result of the

removal. See Martin, 126 S. Ct. at 711. To pursue those

expenses, Access Group must file a request for costs and fees

within twenty days of the date of this order in accordance with

Local Rule 54.1. Frederico will then have an opportunity to

object. See Local Rule 54.1(c). 

Because we grant Access Group’s motion to remand, the motion

to strike is moot.

Conclusion

For the foregoing reasons, the plaintiff’s motion to remand

(document no. 5) is granted, and the plaintiff’s motion to strike

(document no. 9) is denied as moot. The plaintiff’s motion for

Case 1:06-cv-00275-JD Document 20 Filed 10/05/06 Page 8 of 9
9

sanctions under Fed. R. Civ. P. 11 (document no. 16) is treated

as a motion for attorney fees and costs under 28 U.S.C. §

1447(c), and is granted, provided that Access Group shall file a

full accounting of its fees and costs within twenty days of the

date of this order. Remand is stayed pending a resolution of the

court’s order on fees and costs. 

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

October 5, 2006

cc: Daniel C. Federico, Esquire

Daniel C. Proctor, Esquire

Case 1:06-cv-00275-JD Document 20 Filed 10/05/06 Page 9 of 9