Little v. XtremepowerUSA

• Court: District Court, E.D. Kentucky
• Decided: August 21, 2023
• Docket: 7:23-cv-00035
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY SOUTHERN DIVISION PIKEVILLE

SETH LITTLE, ) ) Plaintiff, ) No. 7:23-CV-35-REW-EBA ) v. ) ) ORDER XTREMEPOWERUSA, ) ) Defendant. ) *** *** *** ***

Plaintiff Seth Little filed a motion to remand this matter back to Knott Circuit Court. See DE 8 (Motion). Judge Atkins, reviewing subject matter jurisdiction, recommends remand and denial of Little’s request for attorney’s fees. See DE 13 (Report and Recommendation). The objection period has passed; neither party has objected. The Court agrees with Judge Atkins’s recommendation. Accordingly, the Court ADOPTS DE 13. 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(b)(3)(premising review on proper objection). 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 (6" 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. Gafford v . General Elec. Co., 997 F.2d 150, 159 (6 Cir. 1993); 28 U.S.C. § 1446(c)(2)(B). Upon review of the record, including all papers and materials Defendant marshalled, Judge Atkins found that the removing party failed to meet its burden. This Court, with no objection and being properly chary about the foundation for exercising jurisdiction, agrees. While finding remand required, Judge Atkins found the award of attorney’s fees to be unwarranted as the removal did not lack “an objectively reasonable basis.” See DE 13 at 8. The Court again seeing no objection, agrees. Accordingly, the Court ADOPTS DE 13 and REMANDS this matter to Knott Circuit Court. This the 21* day of August, 2023. Kees. Signed By: © Robert E. Wier “U¥p/ “3 United States District Judge