Cole v. Puritas Metal Products Inc et al

Filing 49

Memorandum Opinion modifying the Report and Recommendation issued by Magistrate Judge Baughman (Docket # 44 ) as follows: To the extent the Complaint asserts claims for violation of COBRA rights, said claims are DISMISSED. The Motion to Remand to State Court filed by Plaintiff (Docket # 11 ) is GRANTED. Plaintiff's Motion for Payment of Just Costs, Expenses and Fees for Improper Removal (Docket # 46 ) is DENIED. This case is hereby REMANDED. All additional pending motions are hereby terminated. Judge Donald C. Nugent (C,KA) Modified text 10/24/2013 (C,KA).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

CHRISTOPHER COLE,
Plaintiff,
v.

PURITAS METAL PRODUCTS, et al.,
Defendants.

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CASE NO. 1:13 CV 1239

JUDGE DONALD C. NUGENT
Magistrate Judge William H. Baughman, Jr.
MEMORANDUM OPINION

This matter is before the Court on the Motion to Remand to State Court filed by
Plaintiff, Christopher Cole. (Docket #11.)

This case was referred to Magistrate Judge

William H. Baughman, Jr. for general pretrial supervision. (Docket #9.) Magistrate Judge
Baughman issued his Report and Recommendation on September 26, 2013. (Docket #44.)
Magistrate Judge Baughman recommends that the Court grant Plaintiff’s Motion to
Remand.
Objections to the Report and Recommendation were due October 10, 2013. No
objections were filed.
On October 7, 2013, Plaintiff filed a Motion for Payment of Just Costs, Expenses
and Fees for Improper Removal. (Docket #46.) Defendants filed memoranda in opposition

on October 21, 2013. (Docket #s 47 and 48.)
Standard of Review for a Magistrate Judge’s Report and Recommendation
The applicable district court standard of review for a magistrate judge’s report and
recommendation depends upon whether objections were made to the report. When
objections are made to a report and recommendation of a magistrate judge, the district court
reviews the case de novo. FED. R. CIV. P. 72(b) provides:
The district judge must determine de novo any part of the magistrate judge’s
disposition that has been properly objected to. The district judge may accept,
reject, or modify the recommended disposition; receive further evidence; or
return the matter to the magistrate judge with instructions.
The text of Rule 72(b) addresses only the review of reports to which objections have
been made; it does not indicate the appropriate standard of review for those reports to which
no objections have been properly made. The Advisory Committee on Civil Rules
commented on a district court’s review of unopposed reports by magistrate judges. In
regard to subsection (b) of Rule 72, the advisory committee stated: “When no timely
objection is filed, the court need only satisfy itself that there is no clear error on the face of
the record in order to accept the recommendation.” FED. R. CIV. P. 72 advisory committee’s
notes (citation omitted).
The U.S. Supreme Court stated in Thomas v. Arn, 474 U.S. 140, 150 (1985): “It
does not appear that Congress intended to require district court review of a magistrate
judge’s factual or legal conclusions, under a de novo or any other standard, when neither
party objects to those findings.”

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Discussion
Defendants did not filed objections to the Report and Recommendation. Nonetheless,
the Court has reviewed the Magistrate Judge’s Report and Recommendation de novo.
In Count Three of the Complaint, entitled “Tortious Breach of Contract / Tortious
Interference With Contract,” Plaintiff alleges Defendant Puritas “refused to honor its
obligation to pay their portion” of Plaintiff’s insurance deductible and treated Plaintiff
differently from other employees by failing to provide Plaintiff with sufficient time to
evaluate Puritas’s new health insurance plan so that he could make a proper determination
as to whether to continue under COBRA (the Consolidated Omnibus Budget Reconciliation
Act, codified at 29 U.S.C. § 1161 et seq.) with the new insurance provider. Plaintiff
includes a footnote referencing the COBRA and asserts “[a]n employer should provide the
necessary health insurance information within 10 days of the employee’s discharge. Puritas
failed to do the same.” (Complaint at Paragraphs 29 and 84.)
Defendants filed their Notice of Removal with this Court based upon what appeared
to be Plaintiff’s allegation that Defendant Puritas violated COBRA by failing to comply
with the Statute’s notice requirements. However, in his Motion to Remand and Reply Brief
(Docket #s 11 and 18), Plaintiff unequivocally disavows any intention to bring a claim
against Defendants under COBRA, stating that he brings only State law claims for breach of
contract. Accordingly, to the extent the Complaint asserts claims for violation of COBRA
rights, said claims are DISMISSED. Given that there is no other basis for Federal
jurisdiction, the case must be remanded.
On October 7, 2013, Plaintiff filed a Motion for Payment of Just Costs, Expenses

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and Fees for Improper Removal. (Docket #46.) Plaintiff asserts that Defendants’ Notice of
Removal “was an improper forum shopping abuse of the legal system conjured in bad faith
to complicate, delay and add unnecessary costs to the Plaintiff’s litigation process.”
The Magistrate Judge’s use of the word “improper” does not automatically entitle
Plaintiff to costs and expenses. As provided in 28 U.S.C. § 1447(c), if the District Court
determines that the removal was improper, the action must be remanded, and the Court
"may require payment of just costs and any actual expenses, including attorney fees,
incurred as a result of the removal." (Emphasis added). An award of costs and attorney fees
is discretionary. In Martin v. Franklin Capital Corp., 546 U.S. 132, 136-37, 126 S. Ct. 704,
163 L. Ed. 2d 547 (2005), the Supreme Court limited a district court's discretion to award
fees, absent unusual circumstances, to those cases where "the removing party lacked an
objectively reasonable basis for seeking removal." 546 U.S. at 141. An award of costs,
including attorney fees, “is inappropriate where the defendant's attempt to remove the action
was 'fairly supportable,' or where there has not been at least some finding of fault with the
defendant's decision to remove." Warthman v. Genoa Twp. Bd. of Trs., 549 F.3d 1055,
1059-60 (6th Cir. 2008) (quoting Bartholomew v. Town of Collierville, 409 F.3d 684, 687
(6th Cir. 2005)).
Without the benefit Plaintiff’s clarification during briefing that he is not pursuing a
claim under COBRA, Defendants’ removal of this action was objectively reasonable, given
Plaintiff’s direct statement in the Complaint that Defendants failed to comply with the
requirements of COBRA. In addition, there is nothing in the record to support Plaintiff’s
claim that Defendants acted in bad faith in removing this action to Federal court or that any

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of Defendants’ filings were in violation of any Order of this Court. Accordingly, Plaintiff’s
request for fees and costs pursuant to 28 U.S.C. § 1447(c) is denied.
Conclusion
The Court hereby modifies the Report and Recommendation issued by Magistrate
Judge Baughman (Docket #44) as follows:
To the extent the Complaint asserts claims for violation of COBRA rights, said
claims are DISMISSED.
The Motion to Remand to State Court filed by Plaintiff (Docket #11) is GRANTED.
Plaintiff’s Motion for Payment of Just Costs, Expenses and Fees for Improper
Removal (Docket #46) is DENIED.
This case is hereby REMANDED. All additional pending motions are hereby
terminated.
IT IS SO ORDERED.
s/Donald C. Nugent
DONALD C. NUGENT
United States District Judge
DATED: October 24, 2013

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