Madsen v. City of Lincoln ( 2021 )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA BENJAMIN MADSEN and MADSEN BOWLING AND BILLIARD CENTER, CO., 4:21CV3075 Plaintiffs, ORDER v. CITY OF LINCOLN, LEIRION GAYLOR BAIRD, in her official and individual capacity; PATRICIA D. LOPEZ, in her official and individual capacity; JEFFREY BLIEMEISTER, in his official capacity; LANCASTER COUNTY, LINCOLN- LANCASTER COUNTY HEALTH DEPARTMENT, and LINCOLN- LANCASTER COUNTY BOARD OF HEALTH, Defendants. This matter is before the Court on plaintiffs Benjamin Madsen and Madsen Bowling and Billiard Center Co.’s (“plaintiffs”) Motion to Remand (Filing No. 15). Plaintiffs allege the Court should remand their case, arguing (1) the defendants lacked standing to remove the case from state court, (2) the Court should bifurcate Count II of plaintiffs’ complaint and remand it to Nebraska state court, (3) the Court should remand all other counts under its discretionary authority granted in 28 U.S.C. § 1367(c), and (4) the Court should otherwise abstain from exercising its jurisdiction. After having been fully briefed on the issue of remand, the magistrate judge1 issued a Findings and Recommendation (Filing No. 30) pursuant to 28 U.S.C. § 636(b), 1The Honorable Cheryl R. Zwart, United States Magistrate Judge for the District of Nebraska. recommending the Court deny Plaintiffs’ motion in its entirety. The magistrate judge advised the parties (1) they had fourteen days to object to her findings and recommendation and (2) failing “to timely object may constitute a waiver of any such objection.” Neither party has filed a timely objection. Pursuant to 28 U.S.C. § 636(b)(1), the Court must “make a de novo review of .. . specified proposed findings or recommendations to which objection is made.” The failure to object, however, “eliminates not only the need for de novo review, but any review by the district court.” Leonard v. Dorsey & Whitney LLP, 553 F.3d 609, 619-20 (8th Cir. 2009); see also Fed. R. Crim. P. 59(a) and (b)(2); NECrimR 59.2(a) and (e). Accordingly, IT IS ORDERED: 1. The Findings and Recommendation (Filing No. 30) are accepted in their entirety. Any objections are deemed waived. 2. The Plaintiffs’ Motion for Remand (Filing No. 15) is denied. Dated this 2nd day of July 2021. BY THE COURT: Robert F. Rossiter, Jr. United States District Judge