1My report and recommendation of October 9, 2008 is

withdrawn, in part, to the extent it recommended dismissal of

plaintiff’s complaint without prejudice for failure to establish

diversity jurisdiction.

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Sherrill L. White

v. Civil No. 08-cv-206-JL

Mark L. Sisti

O R D E R

Proceeding pro se and in forma pauperis, plaintiff Sherrill

L. White has filed an amended complaint against defendant Mark L.

Sisti, invoking this court’s diversity jurisdiction under 28

U.S.C. § 1332 and alleging state law claims of legal malpractice

(document no. 5). The amended complaint is before me for

preliminary review to determine, among other things, whether

plaintiff has properly invoked the subject matter jurisdiction of

this court. See United States District Court of the District of

New Hampshire Local Rules (“LR”) 4.3(d)(1)(B)(I). For the

reasons stated below, I order the complaint served on the

defendant.1

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Standard of Review

In reviewing a pro se complaint, this court must construe

the pleading liberally. See Ayala Serrano v. Gonzalez, 909 F.2d

8, 15 (1st Cir. 1990)(following Estelle v. Gamble, 429 U.S. 97,

106 (1976) and construing pro se pleadings liberally in favor of

that party). At this preliminary stage of review, all factual

assertions made by plaintiff and inferences reasonably drawn

therefrom must be accepted as true. See Aulson v. Blanchard, 83

F.3d 1, 3 (1st Cir. 1996)(explaining that all well-pleaded

factual averments, not bald assertions, must be accepted as

true). This review ensures that pro se pleadings are given fair

and meaningful consideration. See Eveland v. Director of CIA,

843 F.2d 46, 49 (1st Cir. 1988).

Background

Plaintiff is a resident of Massachusetts. Defendant is an

attorney and a resident of New Hampshire. This action arises out

of defendant’s alleged ineffective representation of plaintiff

during the course of her state court criminal proceedings in the

State of Vermont. Plaintiff allegedly retained defendant and

agreed to pay him the sum of $3000.00 for legal services, and to

date has paid him $2000.00. Plaintiff alleges that as a result

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3

of defendant’s ineffective representation, she sustained a loss

of employment and a loss of future earnings in the amount of

$1,000,000.00 (based on an average annual salary of $55,000.00

over a projected twenty-year period). Plaintiff further alleges

that as a result of defendant’s ineffective representation, she

sustained a loss of her 401K account in the amount of $31,000.00. 

Lastly, she alleges that she lost her home, which had an

appraised value in excess of $130,000.00. Because of the losses

plaintiff sustained, her children allegedly required mental

health counseling. Plaintiff maintains that the aforementioned

losses exceed the amount of $75,000.00. She now brings the

instant amended complaint, invoking this court’s diversity

jurisdiction under 28 U.S.C. § 1332 and alleging a state law

legal malpractice claim against Sisti.

Discussion

I. Subject Matter Jurisdiction

A party seeking relief in district court must at least plead

facts which bring the suit within the court’s jurisdiction. See

Fed. R. Civ. P. 8(a)(1)(requiring a plaintiff to set forth in the

complaint “a short and plain statement of the grounds for the

court’s jurisdiction. . .”). The subject matter of the federal

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4

courts is limited and is set forth generally in 28 U.S.C. §§ 1331

and 1332. Under these statutes, federal jurisdiction is

available only when a federal question is presented or when the

parties are of diverse citizenship. Id. 

A federal question exists where the plaintiff has alleged a

colorable federal claim. See 28 U.S.C. § 1331 (providing for

original jurisdiction in the federal district courts for claims

arising under federal law). See also BIW Deceived v. Local S6,

Indus. Union of Marine & Shipbuilding Workers, 132 F.3d 824, 832

(1st Cir. 1997). Here, in her amended complaint plaintiff has

failed to allege a federal question or assert any facts from

which federal question jurisdiction can be inferred. See 28

U.S.C. § 1331. 

Instead, plaintiff invokes diversity jurisdiction pursuant

to 28 U.S.C. § 1332 and alleges a state law claim for legal

malpractice. To establish diversity jurisdiction, a complaint

must allege complete diversity of citizenship between plaintiff

and defendants as well as an amount in controversy in excess of

$75,000, exclusive of interest and costs. See 28 U.S.C. § 1332. 

See also Straughn v. Delta Air Lines, Inc., 170 F. Supp. 2d 133,

146 (D.N.H. 2000)(citations omitted). “Diversity jurisdiction

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5

exists only when there is complete diversity, that is, when no

plaintiff is a citizen of the same state as any defendant.” 

Gabriel v. Preble, 396 F.3d 10, 13 (1st Cir. 2005).

Here, plaintiff alleges that she is a resident of

Massachusetts and that defendant is a resident of New Hampshire. 

Accordingly, she has alleged diversity of citizenship between the

parties. Plaintiff also alleges an amount in controversy in 

excess of $75,000, therefore, the amount in controversy exceeds

the minimum required for diversity jurisdiction. I therefore

conclude that she has pled diversity jurisdiction under 28 U.S.C.

§ 1332.

Conclusion

For the reasons stated above and without commenting on the

merits of the claims, I conclude that plaintiff has invoked this

court’s subject matter jurisdiction. Accordingly, I order the

complaint to be served on the defendant. See LR 4.3(d)(1)(B)

(iii). 

As plaintiff has completed a summons form for the defendant,

the Clerk’s Office shall issue the summons against him and

forward to the United States Marshal for the District of New

Hampshire (“U.S. Marshal’s Office”) the summons and copies of the

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amended complaint (document no. 5) and this order. Upon receipt

of the necessary documentation, the U.S. Marshal’s Office shall

effect service upon the defendant. See id.; Fed. R. Civ. P. 4

(c)(3).

 Defendant is instructed to answer or otherwise plead within

twenty days of service. See Fed. R. Civ. P. 12(a)(1)(A)(i) 

Plaintiff is instructed that all future pleadings, written

motions, notices, or similar papers shall be served directly on

the defendant by delivering or mailing the materials to him or

his attorney(s), pursuant to Fed. R. Civ. P. 5(b). 

SO ORDERED.

______________________________

James R. Muirhead

United States Magistrate Judge

Date: November 21, 2008

cc: Sherrill L. White, pro se

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