Schmidt v. Lincoln Elec. Co.

Full title: RHONDA SCHMIDT Plaintiff, v. LINCOLN ELECTRIC COMPANY, et al., Defendant.

Court: UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION

Date published: Dec 17, 2019

CASE NO. 1:19-cv-1605 (N.D. Ohio Dec. 17, 2019)

Opinion

CASE NO. 1:19-cv-1605

12-17-2019

RHONDA SCHMIDT Plaintiff, v. LINCOLN ELECTRIC COMPANY, et al., Defendant.

JUDGE DAN AARON POLSTER

OPINION AND ORDER

This case is before the Court on the Report and Recommendation of Magistrate Judge Jonathan D. Greenberg ("R&R"), Doc #: 13. The Magistrate Judge recommends that Plaintiff Rhonda Schmidt's motion for remand, Doc #: 8, be granted.

Under the relevant statute:

Within fourteen days after being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.

28 U.S.C. § 636(b)(1) (emphasis added). In this case, the R&R was issued on December 2, 2019. It is now December 17, 2019, and Schmidt has yet to file any written objection to the R&R. The failure to timely file written objections to an R&R constitutes a waiver of a de novo review by the district court of any issues covered in the R&R. Thomas v. Arn, 728 F.2d 813 (6th Cir. 1984); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

Despite the lack of objections, the Court has reviewed the Magistrate Judge's thorough, well-written R&R. This case involves an issue on which there is little guidance from the Sixth Circuit - the definition of "other paper" under 28 U.S.C. § 1446(b)(3). To prevent the wasteful expenditure of judicial and private resources, courts generally decide close questions on subject matter jurisdiction in favor of remand. See Sanders v. Arctic Cat, Inc., Case No. 5:15-cv-2286, 2016 U.S. Dist. LEXIS 48363, at *2 (N.D. Ohio April 11, 2016) (quoting Coyne v. Am. Tobacco Co., 183 F.3d 884, 496 (6^th Cir. 1994)). Ultimately, the Court agrees with the reasoning of the Magistrate Judge and the authorities upon which he relies that the email from Lincoln Electric's counsel does not constitute "other paper" under § 1446(b)(3) and so removal was not proper. The Court also agrees with the Magistrate Judge's finding that it need not reach the issue of bad faith under the terms of § 1446(c)(1).

Therefore, the Court ADOPTS the R&R, Doc #: 13. Accordingly, the Court hereby GRANTS Schmidt's motion for remand, Doc #: 8.

IT IS SO ORDERED.

/s/ Dan A . Polster December 17 , 2019

Dan Aaron Polster

United States District Judge