Capital One Bank (USA), NA v. Givens

Filing 19

ORDER adopting 14 the Report and Recommendation; granting 8 Plaintiff's Motion to Remand to State Court; and denying 17 Defendant's Motion for Hearing. Signed by Judge Michael H. Watson on 3/13/14. (jk1)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Capital One Bank (USA), N.A.,
Plaintiff,

v.

Case No. 2:13-cv-325

Dennis A. Givens,

Judge Michael H. Watson

Defendant.
ORDER
Plaintiff originally brought this action in the Belmont County Court, Eastern
Division, seeking to recover $2,296.07 plus interest owed by Defendant on a
Platinum Visa account. After the state court granted judgment in favor of Plaintiff,
Plaintiff sought to garnish federal benefits Social Security paid to Defendant.
Defendant then removed the action to this Court on the purported basis of federal
question jurisdiction because the benefits Plaintiff sought to garnish were
protected federal benefits. Plaintiff moved to remand. ECF No.8.
The Magistrate Judge issued a report and recommendation in which he
recommended that the Court grant Plaintiff's motion to remand because, under
the universally recognized well-pleaded complaint doctrine, Plaintiff's complaint
does not contain any federal claim upon which to base federal question
jurisdiction. Report and Recommendation 4, ECF No. 14. In response,
Defendant filed a "motion for hearing" which the Court also liberally construes to
be an objection to the Magistrate Judge's Report and Recommendation. ECF

No. 17.
Defendant does not indicate why a hearing is required, nor does he
describe what evidence he would present at such a hearing. His request for a
hearing is therefore denied.
To the extent Defendant intended his motion to serve as an objection, that
objection is overruled. Defendant does no more than reiterate his incorrect
assertion that removal was proper because the benefits Plaintiff seeks to garnish
are federal. The Court agrees with the Magistrate Judge's conclusion that no
basis for federal subject matter jurisdiction appears on the face of Plaintiff's
complaint, and remand is therefore required.
Upon de novo review, the Court OVERRULES Defendant's objection and
ADOPTS the Magistrate Judge's Report and Recommendation in its entirety.

Accordingly, the Court GRANTS Plaintiff's motion to remand, ECF No. 8, and
REMANDS this case to the Belmont County Court, Eastern Division. The Court

also DENIES Defendant's motion for hearing, ECF No. 17.
The Clerk shall remove ECF Nos. 8 and 17 from the Civil Justice Reform
Act motions report.
IT IS SO ORDERED.

UNITED STATES DISTRICT COURT

Case No. 2: 13-cv-325

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