Graves v. Home Depot U.S.A., Inc.

Filing 18

MEMORANDUM AND ORDER for 16 Report and Recommendations. Plaintiff Malika Graves brought this personal injury action in the Supreme Court of the State of New York, Bronx County. Defendant Home Depot U.S.A., Inc. (Home Depot) removed the case to this Court. (Dkt. No. 1.) During discovery, Home Depot disclosed to Plaintiff that the area where Plaintiff claimed to have fallen was owned and operated by Kurt Weiss Florist, Inc. (Kurt Weiss), a New York domiciliary whose joinder would destroy diversi ty jurisdiction under 28 U.S.C. 1332. Plaintiff moved to amend her complaint in order to join Kurt Weiss. Magistrate Judge Deborah Freeman, to whom this matter is referred, granted the motion to amend the complaint. (Dkt. No. 15.) Based on that opini on, Magistrate Judge Freeman issued a Report and Recommendation (the Report) that recommended this Court remand the case to the Supreme Court of the State of New York, Bronx County. (Dkt. No. 16.) For the reasons set forth below, the Court adopts Mag istrate Judge Freemans Report in its entirety. The Court adopts Magistrate Judge Freemans Report, and REMANDS the case to the Supreme Court of the State of New York, Bronx County. Plaintiffs request for costs is DENIED. SO ORDERED. (Signed by Judge Lorna G. Schofield on 6/10/2013) (rsh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
--------------------------------------------------------------X
:
MALIKA GRAVES,
:
Plaintiff,
:
:
-against:
:
HOME DEPOT U.S.A., INC.,
:
Defendant. :
:
------------------------------------------------------------- X

6/10/13

12 Civ. 3816 (LGS)

Memorandum and Order
Plaintiff Malika Graves brought this personal injury action in the Supreme Court of the
State of New York, Bronx County. Defendant Home Depot U.S.A., Inc. (“Home Depot”)
removed the case to this Court. (Dkt. No. 1.) During discovery, Home Depot disclosed to
Plaintiff that the area where Plaintiff claimed to have fallen was owned and operated by Kurt
Weiss Florist, Inc. (“Kurt Weiss”), a New York domiciliary whose joinder would destroy
diversity jurisdiction under 28 U.S.C. § 1332. Plaintiff moved to amend her complaint in order
to join Kurt Weiss. Magistrate Judge Deborah Freeman, to whom this matter is referred, granted
the motion to amend the complaint. (Dkt. No. 15.) Based on that opinion, Magistrate Judge
Freeman issued a Report and Recommendation (the “Report”) that recommended this Court
remand the case to the Supreme Court of the State of New York, Bronx County. (Dkt. No. 16.)
For the reasons set forth below, the Court adopts Magistrate Judge Freeman’s Report in its
entirety.

I. Standard of Review
A court may accept, reject, or modify, in whole or in part, the findings and
recommendations set forth within a magistrate’s report. 28 U.S.C. § 636(b)(1)(C). When there
are objections to the report, the court must make a de novo determination of those portions of the
report to which objections are made. Id.; see also U. S. v. Raddatz, 447 U.S. 667, 674 (1980).
When no objections to a report are made, the court may adopt the report if there is no clear error
on the face of the record. See DiPilato v. 7-Eleven, Inc., 662 F. Supp. 2d 333, 339 (S.D.N.Y.
2009) (citations omitted).
To invoke de novo review of the magistrate judge’s recommendations, the objections
“must be specific and clearly aimed at particular findings in the magistrate judge’s proposal.”
McDonaugh v. Astrue, 672 F. Supp. 2d 542, 547 (S.D.N.Y. 2009) (citations and quotation marks
omitted). De novo review of a magistrate’s report does not require the Court to conduct a de
novo hearing on the underlying issues. Raddatz, 447 U.S. at 676. Rather, Congress intended “to
permit whatever reliance a district judge, in the exercise of sound judicial discretion, chose to
place on a magistrate’s proposed findings and recommendations.” Id.
II. Objections
Defendant Home Depot filed no objections to the Report. Plaintiff objects to the Report
only to the extent that Magistrate Judge Freeman did not address the request for costs pursuant to
28 U.S.C. § 1447(c). (Dkt. No. 17) (filed in error but accepted for purposes of this analysis).
III. Analysis
As no objection to the sections of the Report recommending remand has been made, the
Court reviews for clear error. The Court has reviewed the portions of Magistrate Judge

2

Freeman’s thorough and well-reasoned Report to which no objections were made and finds no
clear error on the face of the record.
The Court addresses Plaintiff’s objection regarding fees and costs de novo. “An order
remanding the case may require payment of just costs and any actual expenses, including
attorney fees, incurred as a result of the removal.” 28 U.S.C. § 1447(c). Absent “unusual
circumstances, courts may award attorney's fees under § 1447(c) only where the removing party
lacked an objectively reasonable basis for seeking removal. Conversely, when an objectively
reasonable basis exists, fees should be denied.” Martin v. Franklin Capital Corp., 546 U.S. 132
(2005); see also Calabro v. Aniqa Halal Live Poultry Corp., 650 F.3d 163, 166 (2d Cir. 2011).
When Defendant removed the case, it had an objectively reasonable basis for removal as the only
named Defendant was Home Depot. There is no basis for an award of fees or costs.
IV. Conclusion
The Court adopts Magistrate Judge Freeman’s Report, and REMANDS the case to the
Supreme Court of the State of New York, Bronx County. Plaintiff’s request for costs is
DENIED.

SO ORDERED.
Dated: New York, New York
June 10, 2013

____________________________________
LORNA G. SCHOFIELD
United States District Judge

3