Garrick v. Scotch Plywood et al

Filing 22

ORDER ADOPTING 19 REPORT AND RECOMMENDATION as set out. Plf's 11 MOTION to Remand Entire Case is GRANTED as set out, & Dft Scotch Plywood's 7 MOTION Sever and Remand is MOOT as set out. The Clerk is directed to transfer this action to the Circuit Ct. of Clarke Co., Alabama, as set out. Signed by Judge Callie V. S. Granade on 7/6/2011. (tot)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
CHARLES GARRICK,
Plaintiff,
v.
SCOTCH PLYWOOD, et al.,
Defendants.

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CIVIL ACTION NO. 11-00222-CG-N

ORDER
This matter is before the court on the Report and Recommendation of the
Magistrate Judge (Doc. 19) on plaintiff’s motion to remand (Doc. 11) and Scotch
Plywood’s Motion to Sever and Remand Count 1 (Doc. 7). The Magistrate Judge
recommends that the plaintiff’s motion to remand be granted, and that Scotch
Plywood’s motion be deemed moot. Defendant Artis Ray Powe, d/b/a A&B Trucking,
filed an objection to the Report and Recommendation, stating that the Magistrate
Judge failed to address Defendant Powe’s argument that the Worker’s
Compensation claim against Scotch Plywood should be severed and remanded, and
the tort claim against Powe should be maintained in this court. The problem with
this proposition is that the court must determine whether or not it has jurisdiction
at the time of removal, not at some subsequent time in the lawsuit. In order to
sever a claim (or take any other action other than remand), the court must have
jurisdiction over the case. However, as the Magistrate Judge found, this court does
not have jurisdiction, because the parties are not completely diverse.

Accordingly, after due and proper consideration of all portions of this file
deemed relevant to the issues raised, and a de novo determination of those portions
of the recommendation to which objection is made, the Report and Recommendation
of the Magistrate Judge made under 28 U.S.C. § 636(b)(1)(B) and dated June 14,
2011, is ADOPTED as the opinion of this Court and it is ORDERED that
plaintiff’s motion to remand the entire case is GRANTED and the motion filed by
Defendant Scotch Plywood, Inc., to sever and remand is MOOT. The Clerk is
hereby directed to take such steps as are necessary to transfer this action to the
Circuit Court of Clarke County, Alabama, from whence it was removed.
DONE and ORDERED this 6th day of July, 2011.
/s/ Callie V. S. Granade
UNITED STATES DISTRICT JUDGE