Combs v. Consol Energy, Inc.

• Court: District Court, E.D. Kentucky
• Decided: August 18, 2023
• Docket: 7:23-cv-00045
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY SOUTHERN DIVISION PIKEVILLE

ETTA COMBS, et al., ) ) Plaintiff, ) No. 7:23-CV-45-REW-EBA ) v. ) ) ORDER CONSOL ENERGY, INC, et al., ) ) Defendant. ) *** *** *** ***

Plaintiffs filed a motion to remand this matter back to Knott Circuit Court. See DE 8 (Motion). Judge Atkins, reviewing subject matter jurisdiction, recommends remand, but that Plaintiffs’ request for attorney’s fees be denied. See DE 12 (Report and Recommendation). The objection period has passed; neither party has objected. The Court, given the lack of objection, ADOPTS DE 12. The Court is not required to “review . . . a magistrate[ judge]’s factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings.” Thomas v. Arn, 106 S. Ct. 466, 472 (1985); see also Berkshire v. Dahl, 928 F.3d 520, 530 (6th Cir. 2019) (quoting Kensu v. Haigh, 87 F.3d 172, 176 (6th Cir. 1996) (alterations adopted) (noting that the Sixth Circuit has “long held that, when a defendant does ‘not raise an argument in his objections to the magistrate[ judge]’s report and recommendation . . . he has forfeited his right to raise this issue on appeal.’”); United States v. Olano, 113 S. Ct. 1770, 1777 (1993) (distinguishing waiver and forfeiture); 28 U.S.C. § 636(b)(1) (limiting de novo review duty to “those portions” of the recommendation “to which objection is made”). Rule 72 plainly requires a proper objection to trigger and preserve review. Without the objection, there is no claimed decisional flaw to assess. As Judge Atkins noted, to exercise jurisdiction, the amount in controversy must exceed $75,000. See 28 U.S.C. § 1332(a); Freeland v. Liberty Mut. Fire Ins. Co., 632 F.3d 250, 252 (6th Cir. 2011). A defendant removing a case has the burden of proving by a preponderance of the evidence that the amount in controversy exceeds $75,000. See 28 U.S.C. § 1446(c)(2)(B). Upon review of the record, Judge Atkins found that the removing party failed in the burden. With no objection, and noting a properly chary view as to jurisdiction, the Court adopts. While finding that remand is appropriate, Judge Atkins found the award of attorney’s fees unwarranted, as the removal did not lack “an objectively reasonable basis.” See DE 12 at 7-8. Again, no objection. Accordingly, the Court ADOPTS DE 12 and REMANDS this matter to Knott Circuit Court.! This the 18th day of August, 2023. Kees. Signed By: © Robert E. Wier “U¥p/ “3 United States District Judge

Defendants also moved to dismiss Plaintiffs’ claim. See DE 3 (Motion). In light of this order remanding the case back to Knott Circuit Court, the Court DENIES DE 3, to the extent it appears in the federal docket, as moot.