Schroer v. Baldwin Filters, Inc.

Filing 27

ORDER - Schroer's Statement of Objections to Magistrate Judge's Order on Plaintiff's Motion to Remand (Filing No. 22 ) is overruled and denied. The Findings and Recommendation (Filing No. 16 ) is adopted as a final order. Schroer's Motion to Remand (Filing No. 9 ) is denied. Ordered by Magistrate Judge Thomas D. Thalken. (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
LOHN SCHROER,
Plaintiff,

8:13CV101

vs.
ORDER
BALDWIN FILTERS, INC.,
Defendant.
This matter is before the court on the plaintiff’s Statement of Objections to
Magistrate Judge’s Order on Plaintiff’s Motion to Remand (Objection) (Filing No. 22).
The plaintiff filed a brief (Filing No. 23) in support. The defendant filed a brief (Filing No.
25) in opposition. The plaintiff did not file a reply.

BACKGROUND
This action arises from Lohn Schroer’s (Schroer) termination from Baldwin
Filters, Inc. (Baldwin). See Filing No. 1-1 - Complaint. On March 27, 2013, Baldwin
removed this action from the District Court of Buffalo County, Nebraska, to the United
States District Court for the District of Nebraska. See Filing No. 1 - Notice of Removal.
On April 26, 2013, Schroer filed a motion to remand. See Filing No. 9. On May 13,
2013, the undersigned entered a Findings and Recommendation recommending Judge
Joseph F. Bataillon deny Schroer’s motion.

See Filing No. 16 - Findings and

Recommendation. Subsequently, on May 17, 2013, the parties consented to jurisdiction
before a magistrate judge. See Filing No. 17 - Planning Report p. 1. Despite the
consent, on May 28, 2013, Schroer filed the Objection to the Findings and
Recommendation pursuant to Civil Rules of the United States District Court for the
District of Nebraska 72.2. See Filing No. 22 - Objection; NECivR 72.2. However, the
court will consider Schroer’s Objection as a motion for reconsideration under Fed. R.
Civ. P. 60 because the parties consented to jurisdiction before the undersigned
magistrate.1
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The court notes the parties filed an Amended Planning Report on June 10, 2013, consenting to
jurisdiction before the undersigned judge. See Filing No. 26 - Amended Planning Report p. 1.

ANALYSIS
Under Rule 60(b) “the court may relieve a party . . . from a final judgment, order,
or proceeding for the following reasons:

(1) mistake, inadvertence, surprise, or

excusable neglect; . . . [or] (6) any other reason that justifies relief.” Fed. R. Civ. P. 60.
Schroer argues although the court in the Findings and Recommendation summarized
Schroer’s assertion that trial in Omaha, Nebraska, is an inconvenient forum for this
action, the court did not address the propriety that assertion.

See Filing No. 22 -

Objection; Filing No. 23 - Brief. The court previously considered Schroer’s arguments in
support of remand. The court found inconvenient forum and issues of first impression
under Nebraska law did not provide a legal basis for remand. The plaintiff fails to
provide additional factual or legal support for remand not previously asserted. The court
continues to find the grounds asserted do not support remand. Accordingly,

IT IS ORDERED:
1.

Schroer’s Statement of Objections to Magistrate Judge’s Order on

Plaintiff’s Motion to Remand (Filing No. 22) is overruled and denied.
2.

The Findings and Recommendation (Filing No. 16) is adopted as a final

3.

Schroer’s Motion to Remand (Filing No. 9) is denied.

order.

Dated this 11th day of June, 2013.
BY THE COURT:
s/ Thomas D. Thalken
United States Magistrate Judge

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