SPIALTER et al v. HENDELMAN et al

Filing 29

OPINION and ORDER adopting the Report & Recommendation of the Magistrate Judge, remanding pltfs' complaint to the Superior Court of New Jersey Union County, & terminating the pending motion to dismiss [DE#8} from this Court's docket, & may be brought to the attention of the state court for disposition. Signed by Judge Katharine S. Hayden on 4/26/10. (sr, )

Not for Publication UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

HOWARD SPIALTER, BALDWIN MANOR, LP, SEAN HENDELMAN, BRANDYCE HENDELMAN, WB CAPITAL, LLP, DAVID ABRAMSON, and DAVID LAWRENCE, M.D., P.C. Plaintiffs, v. MICHAEL L. MILLMAN, NUTMEG BENEFIT GROUP, LLC, AFFILIATED FINANCIAL PARTNERS, LLC, MICHAEL L. MILLMAN, LTD., RONALD K. RUBIN, MSL FINANCIAL GROUP, LLC, LINCOLN FINANCIAL GROUP, THE LINCOLN NATIONAL LIFE INSURANCE COMPANY, and STEVEN A. HOLT, Defendants. _______________________ ________________ Katharine S. Hayden, U.S.D.J.

Civ. Action No. 09-5611

OPINION and ORDER

This matter having come before the Court upon the Report and Recommendation of Magistrate Judge Shwartz [D.E. 27] filed on March 30, 2010, recommending that plaintiffs' complaint [D.E. 1, Exh. A] be remanded to the New Jersey Superior Court, Union County; and this Court having reviewed and considered the issues therein; and it appearing that defendants failed to obtain written evidence of the timely consent to removal of all defendants, including defendants Ronald K. Rubin ("Rubin") and MSL Financial Group, LLC ("MSL"), as required by 28 U.S.C. 1446(a) for removal of diversity or federal question jurisdiction cases; and it appearing that the fraudulent joinder exception to the unanimous consent rule is not implicated because

plaintiffs allege "colorable" claims against defendants Rubin and MSL under 29 U.S.C. 1002(21)(A) of the Employee Retirement Income Security Act ("ERISA") and under state law for breach of fiduciary duty in their actions before and after the welfare benefit plans at issue were established; and the Court noting that neither party has objected to the magistrate judge's report and recommendation and that there is no clear error on the face of the record, see Nara v. Frank, 488 F.3d 187, 194 (3d Cir. 2007) (explaining that "failing to timely object to [a report and recommendation] in a civil proceeding may result in forfeiture of de novo review at the district court level"), It is on this 26th day of April, 2010 hereby ORDERED that the Report and Recommendation of Magistrate Judge Shwartz is adopted and incorporated as the opinion of this Court; and it is further ORDERED that plaintiffs' complaint is remanded to the New Jersey Superior Court, Union County; and it is further ORDERED that the pending motion to dismiss [D.E.8] is terminated from this Court's docket, and may be brought to the attention of the state court for disposition.

/s/ Katharine S. Hayden Katharine S. Hayden, U.S.D.J.