McMurrian et al v. Creslenn Oil Company

Filing 13

ORDER ADOPTING REPORT AND RECOMMENDATIONS for #6 Report and Recommendations; Case Remanded to Union County Circuit Court. Signed by Honorable Jimm Larry Hendren on December 15, 2011. ( Copy of this order emailed to the office of Judge Guthrie per their request )(cnn)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION
RUBIE MCMURRIAN, ET AL.

PLAINTIFFS

v.

Case No. 11-1068

CRESLENN OIL COMPANY ET AL.

DEFENDANTS
O R D E R

Now

on

this

15th

day

of

December,

2011,

comes

on

for

consideration the Report and Recommendation of the Magistrate Judge
(Doc. 6) and plaintiffs' objection thereto (Doc. 9). The Court, being
well and sufficiently advised, finds and orders as follows:
1.

Plaintiffs, appearing pro se, filed a Notice of Removal on

November 14, 2011, seeking to remove a civil action pending in Union
County Circuit Court, styled McMurrian et al. Creslenn Oil Co., et
al., Case No. 2001-213.

Plaintiffs did not attach copies of all

process, pleadings, and orders filed in the state court case with
their

notice

of

removal

as

required

by

28

U.S.C.

§

1446(a).

Plaintiffs subsequently filed certain documents from the state court
case, but the record appears to be complete.
2.
Magistrate

The Notice of Removal was referred to the United States
Judge

for

consideration.

On

November

18,

2011, the

Magistrate Judge determined that the case should be remanded to the
Union County Circuit Court.

The Magistrate Judge stated he had

contacted the Union County Circuit Court and determined that the state
court case had been filed over ten years ago in 2001.

Therefore, the

Magistrate Judge recommended that the case be remanded back to Union

County Circuit Court because the Notice of Removal was untimely filed.
See 28 U.S.C. § 1446 (notice of removal must be filed within 30 days
of receipt of initial pleading or within 30 days after service of the
summons, whichever period is shorter).
3.

Plaintiffs have objected to the Report and Recommendation

on the grounds that the state court case "has been without judgment or
action or cleanup for land damages for the past ten years.

No trial

date had been mandated, and no compensation for the family."
Plaintiffs' objection is not well-taken and will be overruled.
Plaintiffs have not cited the Court to any statute or case that would
permit the Court to allow them to remove this case at this late stage
in the litigation.

Further, a plaintiff generally has the right to

select the forum -- which here was Union County Circuit Court -- and
a defendant has the right to remove.

See Thatcher v. Hanover Ins.

Group, 659 F.3d 1212, 1214 (8th Cir. 2011) (internal quotation marks
and citation omitted).

Thus, even if the notice of removal had been

timely filed, plaintiffs would not have a right to remove this case.
4.

Therefore, the Court finds that the Magistrate Judge's

Report and Recommendation is sound in all respects and should be
adopted in toto.
IT IS THEREFORE ORDERED that plaintiffs' objection is OVERRULED.
IT IS FURTHER ORDERED that the Report and Recommendation of the
Magistrate Judge (Doc. 6) is adopted in toto.

IT IS FURTHER ORDERED that this case is hereby REMANDED to the
Union County Circuit Court.
IT IS SO ORDERED.

/s/ Jimm Larry Hendren
JIMM LARRY HENDREN
UNITED STATES DISTRICT COURT