Stefanik v. City of Holyoke

• Decision Date: 20 January 2009
• Docket Number: No. 08-30136-MAP.,No. 08-30107-MAP.,No. 08-30106-MAP.,08-30106-MAP.,08-30107-MAP.,08-30136-MAP.
• Parties: Thomas STEFANIK, Plaintiff v. CITY OF HOLYOKE, et al., Shawn Willis, et al., City of Holyoke, et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

Page 184

597 F.Supp.2d 184

Thomas STEFANIK, Plaintiff v. CITY OF HOLYOKE, et al., Shawn Willis, et al., City of Holyoke, et al., Defendants.

Civil Action No. 08-30106-MAP.

Civil Action No. 08-30107-MAP.

Civil Action No. 08-30136-MAP.

United States District Court, D. Massachusetts.

January 20, 2009.

Dan Vernon Bair, II, Lisa Brodeur-McGan, Brodeur-McGan, P.C., Springfield, MA, for Defendants.

ORDER

MICHAEL A. PONSOR, District Judge.

Upon de novo review, this Report and Recommendations is hereby adopted, without objection. Docket No. 9 in 08cv30106 is denied. Docket No. 13 in 08cv30107 is denied. So ordered.

REPORT AND RECOMMENDATION WITH REGARD TO DEFENDANTS' MOTIONS FOR REMAND (Document No. 9 in 08cv30106-MAP and Document No. 13 in 08cv30107-MAP)

December 11, 2008

NEIMAN, United States Chief Magistrate Judge.

Presently before the court is Thomas Stefanik ("Plaintiff')'s three complaints against various individuals associated with the City of Holyoke ("the City"), as well as against the City itself (collectively "Defendants"). Defendants, who removed the first two-numbered actions from state court, now seek their remand. Given that Plaintiff filed the third action directly in this court (for which service has not yet been returned), the court required Plaintiff to respond to Defendants' two motions to remand as if they applied to all three actions. For the reasons which follow, the court, pursuant to 28 U.S.C. § 636(b)(1)(B), will recommend that Defendants' motions be denied.

I. THRESHHOLD ISSUE

The court first notes that, despite its authority to directly rule on non-dispositive motions in the cases at bar, it has chosen to proceed via a report and recommendation in order to avoid a potential procedural quagmire, i.e., the unresolved question of whether a magistrate judge has the authority to "hear and determine" motions to remand, 28 U.S.C. § 636(b)(1)(A), or may only issue "proposed findings of fact and recommendations," 28 U.S.C. § 636(b)(1)(B). A brief explanation is in order.

Although the First Circuit has avoided the dispute, see Unauthorized Practice of Law Committee v. Gordon, 979 F.2d 11, 12-13 (1st Cir.1992); see also Albright v. FDIC, 21 F.3d 419, 1994 WL 109047, at *2 n. 4 (1st Cir. Apr. 1, 1994) (unpublished), several district and magistrate judges within this circuit, including the undersigned in Ceria v. Town of Wendell, 443 F.Supp.2d 94, 95 n. 1 (D.Mass.2006), have held or assumed that a remand motion is a "non-dispositive" matter which a magistrate judge may "hear and decide" pursuant to Fed.R.Civ.P. 72(a) and section 636(b)(1)(A), see Societa Anonima Lucchese Olii E. Vini v. Catania Spagna Corp., 440 F.Supp. 461, 462 (D.Mass.1977) (Freedman, J.); see also BMJ Foods Puerto Rico, Inc. v. Metromedia Steakhouses Co., 562 F.Supp.2d 229, 231 (D.P.R. 2008) (McGiverin, M.J.); Delta Dental v. Blue Cross & Blue Shield, 942 F.Supp. 740, 743-46 (D.R.I.1996) (Lagueux, C.J.) (affirming remand order issued by Boudewyns, M.J.); Jacobsen v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., 594 F.Supp. 583, 586 (D.Me.1984) (Carter, J.) (affirming remand order issued by Hornby, M.); Lafazia v. Ecolab, Inc., 2006 WL 3613771, at *1 (D.R.I. Dec. 11, 2006) (Almond, M.J.); but see Hart Enters., Inc. v. Cheshire Sanitation, Inc., 1999 WL 33117188, at *1 (D.Me. Apr. 14, 1999) (Cohen, M.J.) (assuming opposite view). A host of district and magistrate judges from other circuits support this broad exercise of magistrate judge authority. See, e.g., Johnson v. Wyeth, 313 F.Supp.2d 1272, 1272-73 (N.D.Ala.2004) (collecting cases); Young v. James, 168 F.R.D. 24, 26-27 (E.D.Va.1996); City of Jackson v. Lakeland Lounge of Jackson, Inc., 147 F.R.D. 122, 123-24 (S.D.Miss.1993).

On the other hand, four courts of appeals—the Second, Third, Sixth, and Tenth Circuits—have concluded otherwise, i.e., that a remand motion is a "dispositive" matter for which a magistrate judge may offer only a "recommended" ruling pursuant to Fed.R.Civ.P. 72(b) and section 636(b)(1)(B). See Williams v. Beemiller, Inc., 527 F.3d 259, 264-66 (2d Cir.2008); Vogel v. U.S. Office Prods. Co., 258 F.3d 509, 514-17 (6th Cir.2001); First Union Mortg. Corp. v. Smith, 229 F.3d 992, 994-97 (10th Cir.2000); In re U.S. Healthcare, 159 F.3d 142, 145-46 (3d Cir.1998). The most recent of those decisions, in fact, implies that the First Circuit might eventually align itself with this position. See Williams, 527 F.3d at 265 (citing Phinney v. Wentworth Douglas Hosp., 199 F.3d 1, 5-6 (1st Cir.1999)).

For present purposes, howeyer, this court believes that the most practical solution is to do essentially what it did in Therrien v. Hamilton, 881 F.Supp. 76, 77-78 (D.Mass.1995) (rep. and rec. adopted by Ponsor, J.), that is, offer the district court a recommendation on the outstanding remand motions in the first two cases at bar, apply that recommendation to the third case (where remand is also an issue), and move on. See also Venable v. T-Mobile USA, Inc., 2007 WL 4270809, at n. 1 (D.Me. Dec. 3, 2007) (Kravchuk, M.J.) (deciding that, to avoid the debate, "[t]he foolproof approach [is to] offer the Court a recommendation on the motion" to remand). Perhaps in a future remand case, the court will be in a better position to explore in greater detail the legislative, policy and constitutional concerns underlying this issue. For the moment, however, and in the interest of moving these particular cases along expeditiously, the court will report and recommend these rulings.

II. BACKGROUND

Plaintiff is no stranger to litigation in the Western Division of this district, having filed at least eight previous actions, all without success.¹ Like some of his prior attempts, Plaintiff's latest three complaints allege, in essence, that Defendants harmed him (and in certain cases violated his constitutionally protected rights) with respect to his requests to live and work on property located at 123 Pine Street in Holyoke.

Because the first two complaints at bar ostensibly contained federal questions, Defendants removed them here on May 29, 2008. The third complaint was filed here directly on July 10, 2008. In due course, this court, upon referral from District Judge Michael A. Ponsor, held initial scheduling conferences in the first two cases and, in the third, granted Plaintiff's motion to proceed in forma pauperis.

Since these preliminary events, Defendants point out that several things have happened. First, in August and September of 2008, Plaintiff filed three new lawsuits in various state courts of the Commonwealth. Those actions, like a number of other preexisting state actions, also concern Plaintiff's requests to live and work on the Pine Street property. Second, on October 15, 2008, the City filed a request with the Chief Justice for Administration and Management of the State Trial Court—pursuant to Trial Court Rule XII, Requests for Interdependent Judicial Assignments (hereinafter "Rule XII")—to have one judge handle the now eleven lawsuits between Plaintiff and the City in various fora. (See Document No. 9 in 08cv30106-MAP, Exhibit (hereinafter "the City's Rule XII Request").)²

III. DISCUSSION

Given the developments noted above, Defendants now argue that, despite this court having subject matter jurisdiction, remand of the federal cases would serve the interests of judicial economy and avoid conflicting and/or inconsistent rulings. In support, Defendants cite Mensah v. World Truck Corp., 210 F.Supp.2d 320 (S.D.N.Y. 2002), and Morze v. Southland Corp., 816 F.Supp. 369 (E.D.Pa.1993). Both cases are distinguishable.

Mensah, to be sure, is somewhat similar to the present circumstances, at least at first blush. The defendants there sought to remand a case, albeit late, that they had earlier removed so that the case could be consolidated with two new state actions arising out of the same incident. Id., 210 F.Supp.2d at 321. The district court agreed, finding that "[i]n an effort to avoid piecemeal litigation and the risk of inconsistent and contradictory results, ... the interests of justice will be served by remanding this matter to the state court in which it was originally filed." Id. at 322.

On closer examination, however, Mensah is distinguishable from the instant matters on both the facts and the law. Most importantly, both parties in Mensah, a diversity case, supported remand, which support was key to the court's waiving the requirement of 28 U.S.C. § 1447(c) that a motion to remand be filed within thirty days after notice of removal. See id. at 321 & n. 1 (court noted that since it was unable "to locate any statutory or case law addressing this situation" it would rely on the parties' mutual consent to allow the late-filed remand motion). Here, in sharp contrast, Plaintiff did not seek remand when the two cases were removed by Defendants, nor does he agree to remand now. Moreover, Defendants' motions for remand were filed well beyond the thirtyday window. Accordingly, the strictures of 28 U.S.C. § 1447(c) remain in place. See 14C C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure 3d ("Wright, Miller & Cooper") § 3739 ("The expiration of this [thirty-day] time period bars both a motion by one of the parties and a sua sponte remand by the district court.") (citing cases).

The decision in Morze, another diversity case, is equally distinguishable. Although the court granted the plaintiffs late-filed motion to remand—again with the parties' mutual consent—it did so, properly in this court's estimation, based on the provisions of 28 U.S.C. § 1447(e). Id., 816 F.Supp. at 370-31. Section 1447(e) allows remand, even after the expiration of the thirty-day limit set forth in section 1447(c), where joinder of additional defendants in a diversity case would destroy subject matter jurisdiction.³ Indeed, the Morze court indicated that section 1447(e) "compels the court to consider, whether in the interests of justice, a case should be remanded back to State...