UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

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Pamela Taber-McCarthy *

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 Petitioner *

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 v. * Case Number 1:08-cv-96-PB

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Ricky C. McCarthy *

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 Respondent *

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PETITIONER’S REPLY TO

RESPONDENT’S OBJECTION TO MOTION FOR REMAND

The petitioner, Pamela Taber-McCarthy, hereby replies to Respondent’s 

Objection to Petitioner’s Motion for Remand. 

1. Respondent’s Amended Petition for Removal appeared to identify 

“pleadings with the State Court seeking a further order with regards to the 

wording of the QDRO,” id. at ¶5, as the basis for removal to this Court. 

See 28 U.S.C. § 1446(b).

2. Petitioner’s Motion for Remand pointed out that this pleading was filed on 

November 16, 2007, which made the removal, which was not filed until 

March 13, 2008, untimely. See id.

3. Respondent now appears to be arguing that it was not the pleading filed on 

November 16, 2007 that was the basis for removal, but rather that 

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Petitioner’s counsel “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.” Respondent’s Objection to 

Petitioner’s Motion for Remand at ¶12.

4. Neither of these new grounds for removal support removal. 

5. Any “informal change in [Petitioner’s] position on March 13, 2008,” 

Respondent’s Objection to Petitioner’s Motion for Remand at ¶12, does not 

provide a basis for removal because removal had to have been filed within 

30 days of the “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.” 28 U.S.C. § 1446(b).

6. Respondent plead in his Amended Petition for Removal that the November 

16

th state court pleading “raises the correct application of the provision of 

29 USC § 1056 et seq.” Id. at ¶5. 

7. In response to the filing of Petitioner’s Motion for Remand, Respondent has

taken the position that the November 16

th pleading raised a “gains/losses” 

issue and that the issue being removed is actually an “interest to be paid” 

issue, which was the “informal change” to Petitioner’s position that 

occurred on March 13, 2008. Respondent’s Objection to Petitioner’s 

Motion for Remand at ¶¶11-12. 

8. The distinction drawn by Respondent is the proverbial distinction without a 

difference. Whether the issue is styled a “gains/losses” issue or as an 

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“interest to be paid” issue, the underlying law is QDRO law. If this Court 

has jurisdiction over QDROs as Respondent claims, then the time at which

it could “first be ascertained that the case is one which is or has become 

removable,” 28 U.S.C. § 1446(b), was when Petitioner filed her November 

16

th pleading. 

9. It is clear that Respondent believed the case was removable with the filing 

of the November 16th pleading because in his Objection to Motion for 

Further Order Regarding Distribution of Retirement and Wording of 

QDRO, which was filed in the state court on November 27, 2007 and which 

is an exhibit to his Objection to Petitioner’s Motion for Remand he 

indicated “Federal law governs the distribution to be made in this instance,” 

¶8, and that “since the issue involves a federal question, respondent intends 

to remove the matter to federal district court if the plan administrator does 

not do so.” ¶21. 

10. The other new ground is there was a “formal change of Petitioner’s position 

on March 14, 2008, in the brief hearing before the state court marital 

master.” Respondent’s Objection to Petitioner’s Motion for Remand at ¶12.

11. The “formal change” ground for removal fails for the same reason the 

“informal change” ground fails.

12. In addition, the notice of removal was filed on March 13, 2008. Therefore, 

anything that happened “on March 14, 2008, in the brief hearing before the 

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state court marital master,” Respondent’s Objection to Petitioner’s Motion 

for Remand at ¶12, could not have been a basis for removal. 

* * * * *

13. Although the November 16th pleading was titled Motion for Further Order 

Regarding Distribution of Retirement and Wording of QDRO, Respondent 

in response to the Motion to Remand has taken the position that “the federal 

court is not being asked to issue the QDRO.” Respondent’s Objection to 

Petitioner’s Motion for Remand at ¶20. “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.” Id. 

14. Thus, Respondent appears to be seeking an advisory opinion from this 

Court regarding QDRO law. 

15. This Court, however, cannot provide such relief because Article III of the 

United States Constitution restricts federal courts to the resolution of actual 

cases and controversies. See, e.g., Shelby v. Superperformance Int'l, Inc.,

435 F.3d 42, 45 (1st Cir. 2006).

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Respectfully submitted,

Pamela Taber-McCarthy,

By her Attorney

MOSCA LAW OFFICE

/s/ Edward C. Mosca 

27 Webster Street

Manchester, NH 03104

(603) 628-3695

CERTIFICATE OF SERVICE

I hereby certify that on April 6, 2008 I served the foregoing by ECF on 

Kevin Bucholz, Esquire. Counsel of record for Respondent, and by handdelivering a copy to Law Office of Kathleen Sternenberg, 27 Webster Street, 

Manchester, NH 03104, counsel for Petitioner.

/s/ Edward C. Mosca 

Edward C. Mosca

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