Vitale et al v. Walsh et al

Filing 6

ORDER ADOPTING REPORT AND RECOMMENDATIONS and REMANDING case to Kenosha County Circuit Court, signed by Chief Judge William C Griesbach on 12/14/2017.The Court DENIES as moot 2 MOTION for Leave to Proceed Without Prepayment of the Filing Fee. The Clerk of Court shall enter judgment accordingly. Certified copy of remand order and judgment and certified copy of docket sent to Kenosha County Circuit on 12/14/2017. (cc: all counsel, via US Mail to Sarah and Dennis Walsh)(Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
MICHAEL VITALE AND SUSAN VITALE,
Plaintiffs,
v.

Case No. 17-C-1606

SARAH WALSH AND DENNIS WALSH,
Defendants.

ORDER ADOPTING REPORT AND RECOMMENDATION AND REMANDING CASE

Defendant Sarah Walsh removed to federal court this Kenosha County small claims action
seeking eviction and unpaid rents, and requests to proceed in forma pauperis. Ms. Walsh claims the
case was appropriately removed because she is a member of a protected class.
Because neither the named plaintiffs nor defendant Dennis Walsh filed consents, the assigned
magistrate judge issued a Report and Recommendation recommending this action be remanded to
state court for lack of jurisdiction and denial of Ms. Walsh’s motion to proceed IFP as moot, thereby
concluding the action in this court.1 The time to respond has lapsed and no has been received.
Because no objection was made, I review Magistrate Judge Jones’ report for clear error. Johnson
v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999). Upon review, I find no clear error in either
the report or the recommendation.

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Because not all parties have filed a consent to magistrate judge jurisdiction, Magistrate
Judge Jones could not remand the case, effectively terminating the federal action. See Coleman v.
Labor & Indus. Review Comm’n, 860 F.3d 461 (7th Cir. 2017).

IT IS THEREFORE ORDERED that the court ADOPTS Magistrate Judge Jones’ Report
and Recommendation (ECF No. 4) and this case shall be REMANDED to Kenosha County Circuit
Court.
IT IS FURTHER ORDERED that Sarah Walsh’s motion to proceed in forma pauperis
(ECF No. 2) is DENIED AS MOOT.
IT IS FURTHER ORDERED that the Clerk of Court enter judgment accordingly.
I FURTHER CERTIFY that any appeal from this matter would not be taken in good faith
pursuant to 28 U.S.C. § 1915(a)(3) unless the plaintiff offers bonafide arguments supporting his
appeal.
Dated this 14th

day of December, 2017.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court

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This order and the judgment to follow are final. The plaintiff may appeal this court’s decision to the Court
of Appeals for the Seventh Circuit by filing in this court a notice of appeal within 30 days of the entry of
judgment. See Fed. R. App. P. 3, 4. This court may extend this deadline if a party timely requests an
extension and shows good cause or excusable neglect for not being able to meet the 30-day deadline. See
Fed. R. App. P. 4(a)(5)(A). If the plaintiff appeals, he will be liable for the $505.00 appellate filing fee
regardless of the appeal’s outcome. If the plaintiff seeks leave to proceed in forma pauperis on appeal, he
must file a motion for leave to proceed in forma pauperis with this court. See Fed. R. App. P. 24(a)(1).
Plaintiff may be assessed another “strike” by the Court of Appeals if his appeal is found to be nonmeritorious. See 28 U.S.C. § 1915(g). If the plaintiff accumulates three strikes, he will not be able to file
an action in federal court (except as a petition for habeas corpus relief) without prepaying the filing fee
unless he demonstrates that he is in imminent danger of serous physical injury. Id.
Under certain circumstances, a party may ask this court to alter or amend its judgment under Federal Rule
of Civil Procedure 59(e) or ask for relief from judgment under Federal Rule of Civil Procedure 60(b). Any
motion under Federal Rule of Civil Procedure 59(e) must be filed within 28 days of the entry of judgment.
Any motion under Federal Rule of Civil Procedure 60(b) must be filed within a reasonable time, generally
no more than one year after the entry of judgment. The court cannot extend these deadlines. See Fed. R.
Civ. P. 6(b)(2).
A party is expected to closely review all applicable rules and determine, what, if any, further action is
appropriate in a case.

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