Donnelly v. Town of Wilbraham et al

Filing 23

Judge Michael A. Ponsor: MEMORANDUM AND ORDER entered. As follows: For the reasons stated, The Report and Recommendation of the Magistrate Judge(Dkt. No. 22 ), upon de novo review, is hereby ADOPTED, in part. Defendants' Motion to Dismiss (Dkt. No. 6 ) is hereby DENIED without prejudice. The clerk is ordered to remand this case to the Hampden County Superior Court. It is so ordered. See the attached memo and order for complete details. (Lindsay, Maurice)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

JEFFREY P. DONNELLY,
Plaintiff,

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v.

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C.A. No. 16-cv-30175-MAP

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TOWN OF WILBRAHAM,
PATROLMAN SEAN CASSELLA,
SERGEANT SHAWN BALDWIN,
CAPTAIN TIMOTHY KANE,
TOWN ADMINISTRATOR
NICK BREAULT, and
DETECTIVE MICHAEL CYGAN,
Defendants.

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MEMORANDUM AND ORDER REGARDING
REPORT AND RECOMMENDATION WITH REGARD TO
DEFENDANTS' MOTION TO DISMISS
(Dkt. Nos. 6 & 22)
March 9, 2018

PONSOR, U.S.D.J.
Plaintiff, proceeding prose, filed a complaint in the
Hampden County Superior Court, alleging a variety of civil
rights and tort claims.

On October 25, 2016, Defendants,

citing the civil rights claims, removed the case to this
court on the basis of federal question jurisdiction, under
28 U.S.C. § 1331.

On October 28, 2016, Defendants filed a

motion to dismiss for failure to state a claim, which the

court referred to Magistrate Judge Katherine A. Robertson
for report and recommendation.
Judge Robertson issued her Report and Recommendation
(Dkt. No. 22) on February 6, 2018, to the effect that this
court should refrain from ruling on Defendants' motion and,
instead, remand the case to the state court.

Objections by

the parties were due on February 20, 2018; none were filed.
Upon de novo review, 28 U.S.C . § 636(b), the court will
adopt, in part, the Magistrate Judge's recommendation.

The

scrupulous job done by Judge Robertson in her R&R obviates
the need for an extended recapitulation of her reasoning.
Its contents are incorporated into this memorandum and into
the court's ruling.

On the issue of whether this court has

jurisdiction, the Magistrate Judge is entirely correct.
Plaintiff disavows pursuing any federal civil rights claims
and asserts that his claims are brought exclusively under
state law.

Accordingly, as Judge Robertson noted,

Defendants have not met their burden to establish federal
question jurisdiction.

Defendants have not objected to her

recommendation.
On one minor point, the court will decline to adopt the

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Report and Recommendation .

Instead of refraining from

ruling on the motion, the court will deny the motion without
prejudice.

This will preserve Defendants' rights and permit

them to move to dismiss before the appropriate court .
The Report and Recommendation of the Magistrate Judge
(Dkt. No . 22), upon de novo review, is hereby ADOPTED, in
part.

Defendants' Motion to Dismiss (Dkt. No . 6) is hereby

DENIED without prejudice.

The clerk is ordered to remand

this case to the Hampden County Superior Court.
It is so ordered.

MICHAEL A. PONSOR
U. S. District Judge

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