United States District Court, S.D. Ohio, Eastern Division
Magistrate Judge, Kemp
C. SMITH, JUDGE UNITED STATES DISTRICT COURT
February 24, 2017, the United States Magistrate Judge issued
a Report and Recommendation recommending that this
matter be remanded to the Franklin County, Ohio Court of
Common Pleas. (Doc. 6). The parties were advised of their
right to object to the Report and Recommendation.
This matter is now before the Court on Defendant Dimension
Service Corporation's Objections to the Report and
Recommendation. (See Doc. 7). Plaintiffs have
filed a response. (Doc. 8), and Defendant has replied (Doc.
Because Defendant filed objections, the Court reviews de
novo those portions to which an objection has been made.
See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P.
72(b)(3). De novo review in these circumstances requires at
least a review of the evidence before the magistrate judge;
the Court may not act solely on the basis of a magistrate
judge's report and recommendation. Hill v. Duriron
Co., 656 F.2d 1208, 1215 (6th Cir. 1981).
timely objection, a district court “must consider
timely objections and modify or set aside any part of the
order that is clearly erroneous or contrary to law.” 28
U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a). The
“clearly erroneous” standard applies to the
magistrate judge's factual findings while legal
conclusions are reviewed under the more lenient
“contrary to law” standard. Gandee v.
Glaser, 785 F.Supp. 684, 686 (S.D. Ohio 1992),
aff'd, 19 F.3d 1432 (6th Cir. 1994). “[A]
finding is ‘clearly erroneous' when although there
is evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction that a
mistake has been committed.” Eversole v. Butler
County Sheriff's Office, 2001 U.S. Dist. LEXIS
26894, at *2 (S.D. Ohio August 7, 2001) (sustaining
objections to magistrate judge's order rejecting claim of
attorney-client privilege and work-product) (citation
omitted). The District Court Judge's review under the
“contrary to law” standard is “plenary,
” and it “'may overturn any conclusions of
law which contradict or ignore applicable precepts of law, as
found in the Constitution, statutes, or case
precedent.'” Gandee, 785 F.Supp. at 686
(citations omitted). It is with these standards in mind that
the Court reviews the Magistrate Judge's Order.
Magistrate Judge carefully considered all the arguments of
the parties in ruling on whether the case should be remanded
to the Franklin County Court of Common Pleas pursuant to 28
U.S.C. § 1441.
objects to the Court sua sponte raising the Forum Defendant
Rule, relying on RFF Family Partnership, LP v.
Wasserman, 316 F.Appx. 410, 411 (6th Cir. 2009), which
found the district court erred when it raised the
forum-defendant exception to the removal statute on its own
initiative. However, Plaintiffs counter that this holding is
contrary to another Sixth Circuit decision, Thompson v.
Karr, 1999 U.S. App. LEXIS 16846, which held that the
forum defendant rule was jurisdictional and the Court can
raise the issue sua sponte. Further, other district courts
within the Sixth Circuit have found this rule to be
jurisdictional and thus courts are able to raise the issue
sua sponte. In Balzer v. Bay Winds Federal Credit
Union, 622 F.Supp.2d 628, 630 (W.D. Mich. 2009), the
Court acknowledged the conflict in the Sixth Circuit, but
ultimately concluded that the removal prohibition in Section
1441(b)(2) was not merely procedural, but rather
jurisdictional and the court had an obligation to raise the
issue on its own. The court stated:
In this case, the balance weighs heavily in favor of
permitting the Court to raise and enforce the forum defendant
rule on its own. The flaw in the removal is no mere
procedural technicality, but a fundamental issue of the
removal power. Congress has made clear that a district
court's removal jurisdiction is narrower than its
original jurisdiction. Compare 28 U.S.C. § 1441, with
§ 1332. The Court has an obligation to enforce both
Id. at 631.
based on the reasoning set forth above, Magistrate Judge Kemp
issued a show cause order raising the forum defendant rule
and inquiring as to whether jurisdiction was proper in this
Court. This was well within Magistrate Judge Kemp's
authority. Further, the findings of the Magistrate Judge that
this case should be remanded are not contrary to law. The
Magistrate Judge carefully considered the purpose of the
removal statute, to preserve a federal forum for certain
types of cases, such as federal question cases, and diversity
cases, and also acknowledged that removal jurisdiction is to
be construed strictly. (Doc. 6, Report and Recommendation at
12). The Court agrees that it would broaden the removal
jurisdiction and impact state court jurisdiction to interpret
that statute as argued by Defendant.
raises a number of other objections to the Magistrate
Judge's Report and Recommendation, including the reliance
on legal developments and legislative intent, failure to rely
on plain meaning of the statute (28 U.S.C. § 1441), and
the characterization of the removal as a “snap
removal.” (See generally Doc. 7). The Court
has considered all of these objections, but again finds that
this case should be remanded based on the detailed reasoning
set forth in the Report and Recommendation. Accordingly, the
Magistrate Judge has not erred in his decision ordering that
this case be remanded.
reasons stated above, in response to Plaintiff's First
Motion for Order to Show Cause, this matter shall be remanded
to the Court of Common Pleas, Franklin County, Ohio. The
Magistrate Judge's Report and Recommendation is hereby
ADOPTED AND AFFIRMED. Defendant's Motion for Leave to
File a Reply is GRANTED and the Reply brief was considered in
the aforementioned discussion. Plaintiff's request for a
telephone status conference is DENIED AS MOOT and any further
scheduling matters should be addressed with the Franklin
County Court of Common Pleas.
Clerk shall remove Documents 4, 6, 7, 10, and 11 from the
Court's pending motions list. The Clerk shall remand this
matter to the Franklin County Court of Common Pleas.