O'Dell v. Selesky
Filing
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OPINION AND ORDER Affirming 22 Order on Motion to Strike and Granting Plaintiff Additional Time within which to File a Motion under Fed. R. Civ. P. 15(a)(2). Signed by District Judge Paul D. Borman. (DTof)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
SOVEREIGN O’DELL,
Plaintiff,
Case No. 16-cv-14378
v.
Paul D. Borman
United States District Judge
HOLLY SELESKY,
Stephanie Dawkins Davis
United States Magistrate Judge
Defendant.
_______________________/
OPINION AND ORDER (1) REJECTING PLAINTIFF’S OBJECTIONS
TO MAGISTRATE JUDGE DAVIS’S APRIL 24, 2017 ORDER,
(2) AFFIRMING MAGISTRATE JUDGE DAVIS’S APRIL, 24, 2017 ORDER,
AND (3) GRANTING PLAINTIFF AN ADDITIONAL PERIOD OF TIME
WITHIN WHICH TO FILE A MOTION UNDER FED. R. CIV. P. 15(a)(2)
FOR LEAVE OF COURT TO FILE AN AMENDED COMPLAINT
On April 24, 2017, Magistrate Judge Davis issued an Order granting
Defendant’s Motions to Strike (ECF Nos. 10, 18), holding Defendant’s motion to
dismiss (ECF No. 4) and Plaintiff’s motions to remand this case to state court (ECF
Nos. 5, 17) in abeyance, and permitting Plaintiff to file a motion for leave to amend
her Complaint on or before May 8, 2017. (ECF No. 22, April 24, 2017 Order.) On
May 8, 2017, rather than filing a motion for leave to amend her Complaint, Plaintiff
filed an Objection to the Magistrate Judge’s April 24, 2017 Order, which is presently
before this Court. (ECF No. 23, Objection.) Defendant filed a Response to Plaintiff’s
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Objection. (ECF No. 24, Defendant’s Response to Plaintiff’s Objection.) For the
reasons that follow, Plaintiff’s Objections are REJECTED and the Magistrate Judge’s
April 24, 2017 Order is AFFIRMED.
II.
STANDARD OF REVIEW
28 U.S.C. § 636(b)(1)(A) and Federal Rule of Civil Procedure 72(a) both
provide that a district judge must modify or set aside any portion of a magistrate
judge’s non-dispositive pretrial order found to be “clearly erroneous or contrary to
law.” 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a). The United States Supreme
Court and the Sixth Circuit Court of Appeals have stated that “a finding is ‘clearly
erroneous’ when although there is evidence to support it, the reviewing court on the
entire evidence is left with the definite and firm conviction that a mistake has been
committed.” United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948) (explaining
the clearly erroneous standard under Rule 52(a)); Hagaman v. Comm'r of Internal
Revenue, 958 F.2d 684, 690 (6th Cir. 1992) (quoting U.S. Gypsum Co.). See also
United States v. Mandycz, 200 F.R.D. 353, 356 (E.D. Mich. 2001) (explaining the
standard under Rule 72(a)).
This standard does not empower a reviewing court to reverse the Magistrate
Judge’s finding because it would have decided the matter differently. Anderson v.
City of Bessemer City, N.C., 470 U.S. 564, 573 (1985) (interpreting the clearly
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erroneous standard in Rule 52(a)). The Sixth Circuit has noted that: “The question is
not whether the finding is the best or only conclusion that can be drawn from the
evidence, or whether it is the one which the reviewing court would draw. Rather, the
test is whether there is evidence in the record to support the lower court’s finding, and
whether its construction of that evidence is a reasonable one.” Heights Cmty. Cong.
v. Hilltop Realty, Inc., 774 F.2d 135, 140 (6th Cir. 1985).
“The ‘clearly erroneous’ standard applies only to the magistrate judge’s factual
findings; h[er] legal conclusions are reviewed under the plenary ‘contrary to law’
standard. . . . Therefore, [the reviewing court] must exercise independent judgment
with respect to the magistrate judge’s conclusions of law.” Haworth, Inc. v. Herman
Miller, Inc., 162 F.R.D. 289, 291 (W.D. Mich. 1995) (citing Gandee v. Glaser, 785
F. Supp. 684, 686 (S.D. Ohio 1992)) (alterations added). “‘An order is contrary to law
when it fails to apply or misapplies relevant statutes, case law, or rules of procedure.’”
Mattox v. Edelman, No. 12-13762, 2014 WL 4829583, at *2 (E.D. Mich. Sept. 29,
2014) (quoting Ford Motor Co. v. United States, No. 08–12960, 2009 WL 2922875,
at *1 (E.D. Mich. Sept. 9, 2009)).
Objections filed to a Magistrate Judge’s Order must “specify the part of the
order, proposed findings, recommendations, or report to which a person objects,” and
“state the basis for the objection.” E.D. Mich. L.R. 72.1(d)(A) and (B).
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III.
ANALYSIS
Plaintiff’s Objections fail to comply with the requirement of Fed. R. Civ. P. 72
and Eastern District of Michigan Local Rule 72.1(d), which require the objecting party
to specify that part of a Magistrate Judge’s Order to which the person objects and to
state the basis for the objection. Plaintiff’s Objection “restates her motion to remand”
and restates her “petition for superintending control,” neither of which is the subject
of the Magistrate Judge’s April 24, 2017 Order and neither of which has been ruled
on by the Magistrate Judge. The April 24, 2017 Order holds Plaintiff’s motion(s) to
remand in abeyance and does not purport to address a “Petition for Superintending
Control.”
Rather than address the substance of the Magistrate Judge’s April 24, 2017
Order, which correctly ruled that Plaintiff’s proposed amended complaints were
untimely under Fed. R. Civ. P. 15(a)(1), the Objection challenges the propriety of
Defendant’s removal of Plaintiff’s Complaint to this Court and generally attacks the
jurisdiction of the Court to hear and determine her claims. The Objection does not in
any manner address the substance of the Magistrate Judge’s Order, which
appropriately granted Defendant’s motion to strike Plaintiff’s proposed amended
complaints, both of which were filed beyond the 21-day period following Defendant’s
filing a motion to dismiss and within which Plaintiff could have filed an amended
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complaint as of right. The Magistrate Judge’s April 24, 2017 Order also alerted
Plaintiff to her right to file a motion seeking leave to file an amended complaint, and
gave her two weeks within which to do so. The Magistrate Judge also held Plaintiff’s
motion(s) for remand, and Defendant’s motion to dismiss, in abeyance pending
Plaintiff’s filing of any motion seeking leave to amend. Based on Plaintiff’s failure
to specify any portion of the April 24, 2017 Order to which she objects and to specify
the basis for the objection, the Objection is REJECTED and the Magistrate Judge’s
April 24, 2017 Order, which is neither clearly erroneous nor contrary to law, is
AFFIRMED.
It appears to the Court, however, that Plaintiff, a pro se litigant, may have
misconstrued or misunderstood the Magistrate Judge’s April 24, 2017 Order. “The
existence of subject matter jurisdiction is determined by examining the complaint as
it existed at the time of removal.” Harper v. AutoAlliance, Intern., Inc., 392 F.3d 195,
210 (6th Cir. 2004) (citing Long v. Bando Mfg. of Am., Inc., 201 F.3d 754, 758 (6th
Cir. 2000)).
Plaintiff’s Complaint, which was timely removed by Defendant,
explicitly alleged several federal law claims (Counts 1-8), including claims under 42
U.S.C. §§ 1981 and 1985, Title VII, the Americans With Disabilities Act, and the First
and Fourteenth Amendments.
(See ECF No. 1, Notice of Removal, Ex. A,
Complaint.) Plaintiff’s multi-federal Count Complaint was properly removed and this
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Court has subject matter jurisdiction over this action. Because Magistrate Judge Davis
correctly determined that Plaintiff’s proposed amended complaint(s) attempting to
omit her federal claims were untimely filed, Plaintiff’s original Complaint, with its
multiple federal claims, remains the operative Complaint in this action.
In view of Plaintiff’s pro se status, the Court will grant Plaintiff an additional
two weeks from the date of this Order to file a motion under Rule 15(a)(2) for leave
to amend her Complaint, as originally permitted by Magistrate Judge Davis’s April
24, 2017 Order. Such a motion would provide Plaintiff an opportunity to seek Court
approval to file an amended complaint omitting her federal claims, as she initially
attempted to do albeit in an untimely manner. Such a motion must attach any
proposed amended complaint and must comply with the Federal Rules of Civil
Procedure and the local rules of this District, as explained in detail by the Magistrate
Judge in her April 24, 2017 Order.
Plaintiff’s Motions to Remand (ECF Nos. 5 and 17), and Defendant’s Motion
to Dismiss the original Complaint (ECF No. 4), shall continue to be held in abeyance
as ordered by Magistrate Judge Davis in her April 24, 2017 Order, pending any further
action by the Plaintiff consistent with this Order. In issuing this Order, this Court
expresses no opinion on the merits of any motion for leave to amend that may be filed
or on the motions to remand and to dismiss that remain pending but have been held
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in abeyance.
IT IS SO ORDERED.
s/Paul D. Borman
PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
Dated: July 13, 2017
CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon each
attorney or party of record herein by electronic means or first class U.S. mail on July
13, 2017.
s/Deborah Tofil
Case Manager
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