Allied v. Herrmann

• Court: District Court, D. New Hampshire
• Decided: February 8, 1996
• Docket: CV-95-535-M
• Status: Published

Opinion

Allied v. Herrmann CV-95-535-M 02/08/96 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Allied Electronic Services, Inc. and Leonard Appell, Plaintiffs,

v. Civil no. 95-535-M

Stefan Herrmann; Peter Heidenfelder; Bonacura, Inc.; Visicom Gmbh; Heidenfelder Gmbh; Kiuchi Okamoto a/k/a Kenneth Okamoto; Konamatsu USA, Inc.; S. Laurence Shaiman; Noe Ellen Sabal; Cable Corp., Inc.; and Tom Young, Defendants.

O R D E R

On November 22, 1995, Magistrate Judge Muirhead issued a

report and recommendation (document no. 6), recommending that

plaintiffs' complaint be dismissed. Plaintiffs filed no

objection (timely or otherwise). By order dated December 15,

1995, the court adopted the Magistrate Judge's findings and

rulings and dismissed plaintiffs' complaint. Plaintiff, Allied

Electronic Services, Inc., now moves the court to reconsider its

order of dismissal. For the reasons set forth below, that motion

is denied. Discussion

Having failed to object to the Magistrate Judge's report and

recommendation. Allied has waived the right to appeal the court's

order thereon. Unauthorized Practice of Law Committee v. Gordon,

979 F.2d 11, 13-14 (1st Cir. 1992); United States v. Valencia-

Cooete, 792 F.2d 4, 6 (1st Cir. 1986). Nevertheless, Allied

moves the court to reconsider that order. Interestingly,

however. Allied does not challenge the substantive foundation

upon which the court based its dismissal order. Instead, it

challenges the court's jurisdiction over this case, arguing that

defendants failed to properly remove the action from state court

and, therefore, the court lacks subject matter jurisdiction. In

essence. Allied seeks an order remanding the case to state court.

In support of its claim that the court lacks subject matter

jurisdiction. Allied says that the removing defendant, S.

Laurence Shaiman, neglected to obtain the reguisite consent of

the remaining defendants to its notice of removal. 28 U.S.C.

§1446. Allied failed, however, to object to removal in a timely

fashion. See 28 U.S.C. 1447(c) ("A motion to remand the case on

the basis of any defect in removal procedure must be made within

30 days after the filing of the notice of removal.") (emphasis

2 added). Allied has, therefore, waived its right to object to any

procedural defects relating removal. Nevertheless, a waiver of

defects relating to the removal process cannot operate as a

waiver of the fundamental reguirement that the court have subject

matter jurisdiction. Jones v. Pettv-Rav Geophysical Geosource,

Inc., 954 F.2d 1061, 1063 (5th Cir.) cert, denied, 506 U.S. 867

(1992) .

It can not seriously be disputed, however, that this court

has subject matter jurisdiction over Allied's claims. 28 U.S.C.

§1332. In fact. Allied's own writ (originally filed in state

court) contains factual allegations sufficient to establish that

diversity jurisdiction exists. Allied's Writ at paras. 2-7.

Moreover, Allied does not claim that diversity jurisdiction is

lacking. Instead, it merely asserts that, having been apprised

of Allied's jurisdictional challenge at this late date,

defendants should now be put to their burden of proof and

reguired to establish that diversity jurisdiction exists.

The court is unmoved by Allied's argument. Allied certainly

could have originally brought this action in federal court and no

legitimate challenge to this court's exercise of diversity

3 jurisdiction could have been raised. Even discounting the

pleadings filed by defendants which support a finding that

diversity jurisdiction lies. Allied's own writ contains

sufficient factual allegations to support the exercise of

diversity jurisdiction. Further discussion on that issue is

neither necessary nor warranted.

Conclusion

Allied's motion to reconsider (document no. 25) is denied.

The court reaffirms its order of December 15, 1995. However,

some clarification of that order is warranted. For the reasons

set forth in the order, plaintiff Leonard Appell has neither

standing nor legal authority to bring an action to redress

alleged injuries to the corporation. Accordingly, his claims are

dismissed with prejudice. Those of the corporate plaintiff.

Allied, are dismissed without prejudice.

SO ORDERED.

Steven J. McAuliffe United States District Judge

February 8, 1996

4 cc: Allied Electronic Services, Inc. William K. Koppenheffer, Esq. Leonard Appell Stefan Herrmann Peter Heidenfelder Bonacura, Inc. Heidenfelder Gmbh Konamatsu USA, Inc. Anne S. Duncan Cooley, Esq. Jennifer A. Eber, Esq. Noe Ellen Sabal Cable Corp., Inc. Tom Younq