Anderson et al v. City of Columbus et al

Filing 27

REPORT AND RECOMMENDATION re 23 MOTION to Remand: It is RECOMMENDED that the Laurell Defendants' Motion be DENIED without prejudice to consideration of the Motion to Remand that the Laurell Defendants properly filed in the 2993 Case. Objections to R&R due by 2/22/2016. Signed by Magistrate Judge Elizabeth Preston Deavers on 2/4/2016. (mas)

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

KEVIN ANDERSON, et al.,
Plaintiffs,
Case No. 2:15-cv-1030
Judge Michael H. Watson
Magistrate Judge Elizabeth P. Deavers

v.

CITY OF COLUMBUS, et al.,
Defendants.

REPORT AND RECOMMENDATION
Plaintiffs, Kevin J. Anderson and James R. Harrison (“Plaintiffs”), brought this action
against Kim and Esther Laurell (the “Laurell Defendants”) and the City of Columbus in this
Court, asserting that Defendants’ refusal to permit them to protest on a portion of the Laurell
Defendants’ land that abuts a road violates their First Amendment right to assemble, speak, and
demonstrate. This matter is before the Undersigned for a Report and Recommendation on the
Laurell Defendants’ Motion to Remand Case Number 2:15-cv-2993 Back to the Court of
Common Pleas, Franklin County, Ohio. (ECF No. 23.) For the reasons that follow, it is
RECOMMENDED that the Laurell Defendants’ Motion be DENIED.
The Laurell Defendants filed the subject Motion on November 20, 2015, seeking remand
of a different, related case pending in this Court, Laurell v. Anderson, 2:15-cv-2993 (the “2993
Case”). The Laurell Defendants are the plaintiffs in the 2993 Case. The defendants in the 2993
Case removed that action from state court on November 13, 2015. (The 2993 Case, ECF No. 1.)
Following removal of the 2993 action and subsequent to filing the subject Motion in the instant

action, the Laurell Defendants filed a Motion to Remand in the 2993 Case. (The 2993 Case,
ECF No. 6.)
Plaintiffs in the instant action point out in their Response to the Laurell Defendants’
Motion to Remand (ECF No. 24) that it appears that the Laurell Defendants inadvertently filed
subject Motion in this case when they should have filed it in the 2993 Case. The Laurell
Defendants failed to file a Reply in support of their Motion to Remand or to otherwise contest
Plaintiffs’ assertion that the subject Motion was incorrectly filed in this action instead of the
2993 Case.
The Undersigned agrees with Plaintiffs. Inadvertent or not, any Motion addressing
whether the 2993 Case should be remanded must be filed in the 2993 Case. Thus, it is
RECOMMENDED that the Laurell Defendants’ Motion be DENIED without prejudice to
consideration of the Motion to Remand that the Laurell Defendants properly filed in the 2993
Case.
Procedure on Objections
If any party seeks review by the District Judge of this Report and Recommendation, that
party may, within fourteen (14) days, file and serve on all parties objections to the Report and
Recommendation, specifically designating this Report and Recommendation, and the part in
question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
Response to objections must be filed within fourteen (14) days after being served with a copy.
Fed. R. Civ. P. 72(b).
The parties are specifically advised that the failure to object to the Report and
Recommendation will result in a waiver of the right to de novo review by the District Judge and
waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex
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Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate
judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district
court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that
defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to
magistrate judge’s report an recommendation). Even when timely objections are filed, appellate
review of issues not raised in those objections is waiver. Robert v. Tesson, 507 F.3d 981, 994
(6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to specify the
issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation omitted))

Date: February 4, 2016

/s/ Elizabeth A. Preston Deavers_________
ELIZABETH A. PRESTON DEAVERS
UNITED STATES MAGISTRATE JUDGE

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