Valley Mgmt., Inc. v. Boston Rd. Mobile Home Park Tenants Ass'n

• Decision Date: 10 September 2010
• Docket Number: C.A. No. 10-cv-30082-MAP
• Citation: 77 Fed.R.Serv.3d 629,736 F.Supp.2d 344
• Parties: VALLEY MANAGEMENT, INC., and Rosaida Rivera, Plaintiffs v. BOSTON ROAD MOBILE HOME PARK TENANTS ASSOCIATION, INC., et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

736 F.Supp.2d 344

77 Fed.R.Serv.3d 629

VALLEY MANAGEMENT, INC., and Rosaida Rivera, Plaintiffs

v.BOSTON ROAD MOBILE HOME PARK TENANTS ASSOCIATION, INC., et al., Defendants.

C.A. No. 10-cv-30082-MAP.

United States District Court,

D. Massachusetts.

Sept. 10, 2010.

Patrick J. Markey O'Shea Getz, Springfield, MA, for Plaintiffs.

Norman C. Michaels, Law Offices of Norman C. Michaels Springfield, MA, Douglas A. Troyer Marcus, Errico, Emmer & Brooks, Braintree, MA, for Defendants.

MEMORANDUM AND ORDER RE: REPORT AND RECOMMENDATION WITH REGARD TO PLAINTIFFS' MOTION FOR REMAND AND REQUEST FOR ATTORNEYS' FEES AND COSTS (Dkt. Nos. 2 & 14)

PONSOR, District Judge.

Following removal, Plaintiffs moved to remand this case to state court and requested attorneys' fees and costs (Dkt. No. 2). This motion was referred to Magistrate Judge Kenneth P. Neiman for a report and recommendation.

On July 8, 2010, Judge Neiman issued his Report and Recommendation, to the effect that Plaintiffs' motion should be allowed, but that the request for fees should be denied (Dkt. No. 14). The conclusion of the Report and Recommendation admonished the parties at n. 2 that any objections to the Report and Recommendation needed to be filed within fourteen days. No objection was filed by any party.

Based upon the merits of the Report and Recommendation, and in light of the absence of any objection, the court, upon de novo review, hereby ADOPTS Judge Neiman's Report and Recommendation (Dkt. No. 14). Based upon this, the court hereby ALLOWS Plaintiffs' Motion for Remand but DENIES Plaintiffs' Motion for Fees and Costs (Dkt. No. 2).

The clerk will remand this case to state court. This federal action may now be closed.

It is So Ordered.

REPORT AND RECOMMENDATION WITH REGARD TO PLAINTIFF'S MOTION FOR REMAND AND REQUEST FOR ATTORNEYS' FEES AND COSTS (Document No. 2)

NEIMAN, United States Magistrate Judge.

Presently before the court is an amended complaint filed by Valley Management, Inc. ("Valley Management") and Rosaida Rivera (together "Plaintiffs") against the Boston Road Mobile Home Park Tenants' Association, Inc. ("Boston Road") and two of its officers, Judy D'Ambrosia and Ted Williams (together "Defendants"). Shortly after filing the amended complaint, but more than one year after the state court proceedings had begun, Defendants removed the action to this forum. Plaintiffs now claim that removal was untimely under 28 U.S.C. § 1446(b) and corresponding case law.

Plaintiffs' motion to remand has been referred to this court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72. For the reasons that follow, the court will recommend that Plaintiffs' motion to remand be allowed but that their accompanying request for attorneys' fees and costs be denied.

I. Threshold Issue

The court first notes that, despite authority for it to rule directly on nondispositive motions, it has chosen to proceed here 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 itself has yet to resolve this question, 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 particular 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, at least four circuit courts of appeals—the Second, Third, Sixth, and Tenth—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). In fact, the most recent of those decisions 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)). However, a more recent decision from the First Circuit itself might be read to augur otherwise. See PowerShare, Inc. v. Syntel, Inc., 597 F.3d 10, 14 (1st Cir.2010) (holding that "a motion to stay litigation pending arbitration," while perhaps "an important step in the life of a case," is ultimately "not dispositive of either the case or any claim or defense within it").

Since the referral of the instant motion does not indicate whether the court should proceed under Rule 72(a) and section 636(b)(1)(A), treating the motion as nondispositive, or Rule 72(b) and section 636(b)(1)(B), treating the motion as dispositive, the court believes that the most practicalsolution is to do essentially what it did in both Therrien v. Hamilton, 881 F.Supp. 76, 77-78 (D.Mass.1995) (rep. and rec. adopted by Ponsor, J.) and Stefanik v. City of Holyoke, 597 F.Supp.2d 184, 185 (D.Mass.2009) (rep. and rec. adopted by Ponsor, J.), that is, offer the district court a recommendation on the remand motion pursuant to Rule 72(b) and section 636(b)(1)(B). 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). While the court still believes that there is a strong argument that such a motion is "non-dispositive," which it may "hear and decide" pursuant to Fed.R.Civ.P. 72(a) and section 636(b)(1)(A), cf. PowerShare, Inc., 597 F.3d at 14; Darney v. Dragon Prods. Co., 266 F.R.D. 23, 24 n. 1 (D.Me.2010) (applying PowerShare, Inc. to support broad magistrate judge authority in other contexts), the court will proceed via a report and recommendation in the interest of moving this case along expeditiously.

II. Background

On March 26, 2009, Plaintiffs filed a twelve-count complaint against Defendants in Hampden County Superior Court; five counts were brought on behalf of Valley Management, Boston Road's former property managers, and seven counts were brought on behalf of Rivera, Valley Management's on-site employee. Among the myriad state-based causes of action, were two federal civil rights claims. Rivera, being of Puerto Rican heritage, alleged national origin discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), while Valley Management alleged a similar violation of the Fair Housing Act, 42 U.S.C. § 3601 et seq. ("FHA").

The essential allegations of the original complaint filed in Superior Court revolved around D'Ambrosia and Williams, both of whom are Caucasian and members of Boston Road's Board of Directors. (See Compl. ¶¶ 16-33.) Among other contentions, the complaint alleged that D'Ambrosia, when campaigning for Board President, "pledged that if elected she would work to prevent ... Rivera from admitting African-Americans and Hispanics into the Park and that she would work to get ... Rivera terminated." ( Id. ¶ 18.) The complaint also alleged that Williams, "during an executive session meeting of the Board ... which had been convened to address issues of security, ... said words to the effect of 'if you could get rid of the blacks and Puerto Ricans, we would be better off here.' " ( Id. ¶ 33.) Finally, the complaint alleged that, following these discriminatory comments and other actions, Boston Road and/or D'Ambrosia terminated Rivera and forced the withdrawal of Valley Management from its pre-existing Management Agreement. ( Id. ¶¶ 39-40.)

Service of the complaint was returned on or about April 9, 2009, and the case was litigated over the course of the next year in Superior Court. Defendants filed an answer and counterclaim, there were several hearings, and discovery on the initial complaint was substantially completed.

On April 2, 2010, Plaintiffs moved to amend their complaint to add additional claims. That motion was granted, over Defendants' opposition and without a hearing, and the amended complaint was docketed on April 12, 2010. In addition to the previous twelve claims, all of which remained, the amended complaint included seven federal and two state law causes of action. However, but for one small addition—mention of a...