UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF NEW HAMPSHIRE 

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Pamela Taber-McCarthy * 

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 Petitioner * 

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 v. * Docket: 08-cv-00096-PB 

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Ricky C. McCarthy * 

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 Respondent * 

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RESPONDENT’S OBJECTION TO 

PETITIONER’S MOTION TO REMAND 

NOW COMES the respondent, Ricky McCarthy, by and through his attorney, 

Kevin E. Buchholz, Esquire, and respectfully requests the Honorable Court to deny 

Pamela Taber-McCarthy’s (hereinafter “Taber”) Motion For Remand and in support 

thereof states the following: 

1. First, the movant argues that removal is not timely because the removal 

pleading was not filed within 30 days of the date the state court pleading was filed. 

2. The state court pleading in question is Taber’s Motion For Further Order 

Regarding Distribution Of Retirement and Wording Of QDRO (copy attached). 

3. At the time Taber’s pleading was filed with the state court the only issue 

raised by Taber therein was the issue of whether or not Taber would be entitled to receive 

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gains/losses on her portion of the agreed upon lump sum distribution, presumably to be 

paid by the plan. Taber cited no authority for her position, but it is clear that the 

provisions of 29 USC § 1056 et. seq. governed the plan administrator’s rights and 

obligations when distribution of pension funds were to be made pursuant to a Qualified 

Domestic Relations Order (hereinafter “QDRO”). 

4. Under the terms of the agreement of the parties, which was approved by the 

state court, Taber’s counsel was to draft the QDRO.

5. Notably Taber’s counsel did so and the original QDRO was executed by the 

parties and their respective counsel. (See attached copy of executed QDRO) 

6. Taber’s counsel (Attorney Kathleen Sternenberg) then sent the QDRO to 

the plan administrator for review and execution. At the same time, Taber’s counsel 

began requesting from the plan administrator a calculation of gains for a certain time 

frame on Taber’s portion of the QDRO. The plan administrator refused to engage in the 

requested computation (unbeknownst to Mr. McCarthy or his counsel) as the QDRO that 

had been executed by the parties and their respective counsel did not state that there were 

to be any gains calculated and/or paid on the distribution to Taber. 

7. Because the parties had agreed to a lump sum distribution, Taber’s counsel 

then sought, via the state court, to change the agreement of the parties to include a 

computation of gains. Hence, Taber’s pleading. 

8. Undersigned counsel then sent a number of letters to Taber’s counsel 

requesting Taber’s counsel to affirm that Taber was withdrawing the pending gains issue. 

9. Despite said letters, an affirmative confirmation was never received from 

Taber’s counsel until the eve of the hearing (scheduled for March 14, 2008) when 

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Taber’s counsel faxed a letter to undersigned counsel that stated “the issue remaining in 

this matter has to do with interest on the distribution, not gains and losses.” Further, that 

Taber “is not seeking gains and losses on the QDRO distribution, but she is seeking 

interest from the date of the court ordered distribution”. Despite said position, Taber 

refused to withdraw her pleading and stated “[s]he does not agree to withdraw her 

pleading as she needs relief from the court.” (copy of Taber’s counsel’s letter/fax dated 

March 13, 2008, attached hereto) 

10. Notably, Taber’s pending pleading did not raise the issue of interest to be 

paid on the distribution. 

11. The parties and counsel did attend the hearing scheduled for March 14, 

2008, in the State Court. At that time undersigned counsel reiterated that the state court 

lacked jurisdiction to go forward on the pending pleadings due to removal to Federal 

District Court. However, at the state court hearing Taber’s counsel, for the first time, 

confirmed on the record that the issue was no longer gains/losses, but the issue was now 

interest to be paid on the distribution under 29 USC § 1056 (d)(3)(H)(ii). Presumably, 

the interest was to be paid by the plan administrator, although efforts to clarify Taber’s 

position on the new interest issue have been unfruitful. 

12. Despite the fact that Taber withdrew the gains/losses issue and did not file a 

pleading with the state court on the interest issue, but instead made an informal change in 

her position on March 13, 2008, and formal change of her position on March 14, 2008, in 

the brief hearing before the state court marital master, Taber now argues that the removal 

petition is untimely. 

13. Taber’s argument is without merit as Taber first raised the interest issue, 

albeit not on the court record, on March 13, 2008, and formerly raised the issue in open 

court on March 14, 2008 (a transcript of the proceeding is not yet available). The 

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removal petition was filed on March 13, 2008. Hence, removal was sought well within 

the timeframe established by 28 USC § 1446(b). 

14. Taber next argues that the court has no jurisdiction over QDROs and cites 

29 USC 1056 (d)(3)(B)(ii)(II) in support of her position. However, the statutory 

language raised by Taber merely defines the term “domestic relations order” and does not 

in any way limit or exclude a feral district court from having jurisdiction to decide 

questions raised under 29 USC § 1056 et. seq., regard the statutory duty of the parties 

and/or plan administrator under the federal law. 

15. Taber also cites Hunter v. Ameritech, 779 F. Supp. 419 (N.D. Ill 1991) in 

support of her position. 

16. First, Hunter is not controlling precedent in this jurisdiction. Second, 

Hunter is simply an incorrect and overly expansive reading of the provisions of 29 USC § 

1056. Nothing in the language of the statute precludes a federal district court from 

exercising it’s federal question jurisdiction to decide the correct interpretation of federal 

law governing clauses sought to be judicially placed into a QDRO in reliance upon the 

federal statutory language. Third, from a factual standpoint the case at bar is not in line 

with Hunter. In Hunter a QDRO had never been executed. In the case at bar the parties 

and their counsel already executed a QDRO (which was drafted by Taber’s counsel), and 

now Taber seeks to have the court read into the QDRO the plan administers obligation to 

pay interest to Taber on her portion of the distribution. 

17. Notably, in the state court proceeding Mr. McCarthy’s pleading 

(Paragraphs 19, 20 and A of Mr. McCarthy’s Objection To Motion For Further Order 

Regarding Distribution Of Retirement and Wording Of QDRO) expressly notified the 

state court that the issue then raised (gains and losses) impacted the obligations of the 

plan administrator and that the plan administrator should be given notice and an 

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opportunity to be heard thereon. Despite said request, the plan administrator was not 

given notice and an opportunity to be heard. 

18. In Mr. McCarthy’s Petition For Removal (and amended Petition) it was 

again expressly requested (Paragraph 12) that the plan administrator be given notice and 

an opportunity to be heard. 

19. Before the court rules on the Petitioner’s Motion For Remand, the court 

should issue an order giving the plan administrator notice and an opportunity to be heard. 

20. It should also be noted that, unlike Hunter, the federal court is not being 

asked to issue the QDRO. Rather the court is being asked to interpret/apply federal law 

to a QDRO to determine whether or not the plan administrator is obligated to pay interest 

to the alternative payee when distribution is made under the QDRO. Taber argues that 

the federal statutory language mandates payment of interest by the plan administrator. 

The plan administer, in all likelihood, will take a different position. 

WHEREFORE, the respondent, Ricky C. McCarthy, respectfully requests the 

Honorable Court to: 

A. Deny Petitioner’s Motion For Remand; 

B. Issue an order giving the plan administrator notice and an opportunity to be heard 

C. Alternatively, issue an order that protects Mr. McCarthy’s and the plan 

administrator’s right to be heard on the interest issue if Taber now indicates that 

she does not intend to raise the interest issue under her pending state court 

pleading (despite her recent statement to the contrary). 

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Respectfully submitted by, 

Ricky McCarthy 

By his attorneys, 

WALKER & BUCHHOLZ, P.A. 

Dated: April 2, 2008 By /s/ Kevin E. Buchholz, Esquire 

Kevin E. Buchholz, Esquire 

NH Bar# 6535 

50 Bridge Street, Suite 205 

Manchester, NH 03101-1699 

603-634-5090 

kbuchholz@walkerbuchholz.com

CERTIFICATE OF SERVICE

 I hereby certify that a copy of the foregoing Motion To Allow Partial Submission 

of State Court Record was this day forwarded to Kathleen Sternenberg, Esquire, Law 

Offices of Kathleen Sternenberg, 27 Webster Street, Manchester, NH 03104 and to 

Edward C. Mosca, Esquire via ECF. 

Dated: April 2, 2008 /s/ Kevin E. Buchholz, Esquire 

Kevin E. Buchholz, Esquire 

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