Novak v. Novak ( 2022 )

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION ANITA M. NOVAK, Plaintiff, Case Number 22-12427 v. Honorable David M. Lawson Magistrate Judge Anthony P. Patti MARK NOVAK, Defendant. ________________________________________/ ORDER ADOPTING REPORT AND RECOMMENDATION AND REMANDING CASE TO STATE COURT Presently before the Court is the report issued on October 27, 2022 by Magistrate Anthony P. Patti pursuant to 28 U.S.C. § 636(b). The report recommends that the Court dismiss the plaintiff’s notice of removal and dismiss her attempted complaint for damages for lack of subject- matter jurisdiction. The plaintiff’s failure to file objections to the report and recommendation waives any further right to appeal. Smith v. Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Likewise, the failure to object to the magistrate judge’s report releases the Court from its duty to independently review the matter. Thomas v. Arn, 474 U.S. 140, 149 (1985). However, the Court agrees with the findings and conclusions of the magistrate judge, although the remedy he proposes is not dismissal of this action. Rather, it is to remand the case to state court. When the removal of a case to federal court is improper because of lack of subject matter jurisdiction, the proper course of action is remand, not dismissal. 28 U.S.C. § 1447(c); Chase Manhattan Mortg. Corp. v. Smith, 507 F.3d 910, 913 (6th Cir. 2007). Insofar as the plaintiff’s suit papers are construed as a complaint for damages, the complaint will be dismissed. Accordingly, it is ORDERED that the report and recommendation (ECF No. 8) is ADOPTED. It is further ORDERED that the case is REMANDED to the Macomb County circuit court for want of subject-matter jurisdiction. It is further ORDERED that the plaintiff’s “complaint for damages” is DISMISSED WITHOUT PREJUDICE. It is further ORDERED that the plaintiff’s petition for attorney’s fees (ECF No. 10) is DENIED AS MOOT. s/David M. Lawson DAVID M. LAWSON United States District Judge Dated: November 16, 2022