United States District Court, W.D. Michigan, Southern Division
OPINION AND ORDER
JANET T. NEFF JUDGE
20, 2017, Defendants Toyota Motor Corporation (TMC) and Aisan
Industry Co., Ltd. (Aisan) removed this case to federal court
on the basis of diversity jurisdiction. Plaintiff filed a
Motion to Remand the case to state court (ECF No. 10), based
on Defendants' alleged defective removal. The matter was
referred to the Magistrate Judge, who issued a Report and
Recommendation (R & R) (ECF No. 14), recommending that
Plaintiffs Motion be denied. The matter is before the Court
on Plaintiffs Objection (ECF No. 12) to the Report and
Recommendation. Also pending is Plaintiffs related Motion for
Reconsideration (ECF No. 19) of this Court's Order
terminating certain Defendants (ECF No. 18). The Court has
performed de novo consideration of those portions of the
Report and Recommendation to which objection has been made.
See 28 U.S.C. § 636(b)(1) and FED. R. CIV. P.
72(b)(3). The Court denies the Objection and the Motion for
argues that the Magistrate Judge erred in concluding that the
removal by Defendants TMC and Aisan was proper. Plaintiff
contends that the Magistrate Judge incorrectly, sua
sponte relied on the state court's order dismissing
the remaining Defendants as "actual notice" to
Defendants TMC and Aisan, triggering the statutory 30-day
window for them to effect removal of this case to federal
court. Plaintiffs argument is without merit.
Magistrate Judge observed that "to later remove a case
which was not originally removable, there must exist 'an
amended pleading, motion, order or other paper'
demonstrating that the case has become removable thereby
triggering the 30 day window to effect removal" (R &
R, ECF No. 14 at PageID.285, citing 28 U.S.C. §
1446(b)(3)). The Magistrate Judge noted, however, that the
failure to specifically identify a pleading, motion, order or
other paper was not fatal to the removal by TMC and Aisan
under the governing law (R & R at PageID.285-286, citing
Berera v. Mesa Medical Group, PLLC, 779 F.3d 352,
363-66 (6th Cir. 2015), and Beasley v. Personal Finance
Corp., 279 B.R. 523, 531 (S.D.Miss. 2002)). The
Magistrate Judge thus found that the dismissal of the
remaining Defendants constituted "actual notice"
that the case was removable and satisfied the "other
paper" requirement articulated by federal statute
(R&R at PageID.286.
disagrees with the Magistrate Judge's determination, but
fails to show any legal or factual error. The Magistrate
Judge's reasoning was sound and is fully supported by the
governing law. Contrary to Plaintiffs argument, it was not
"unfair" for the Court to rely on the facts of
record, and apply the law accordingly.
objection is denied. The Court adopts the Magistrate
Judge's Report and Recommendation as the Opinion of this
Motion (ECF No. 19) seeks reconsideration of this Court's
Order directing the Clerk of Court to terminate Defendants
Toyota Motor North America, Inc.; Toyota Motor Corporation,
LTD.; Toyota Motor Engineering & Manufacturing North
America, Inc.; Toyota Motor Sales, USA, Inc.; Toyota of Grand
Rapids; Rostra Precision Controls, Inc.; Burdick Toyota; and
Bosch Automotive Service Solutions Inc. The Court finds
no basis for reconsideration.
Generally, and without restricting the discretion of the
Court, motions for reconsideration which merely present the
same issues ruled upon by the Court shall not be granted. The
movant shall not only demonstrate a palpable defect by which
the Court and the parties have been misled, but also show
that a different disposition of the case must result from a
W.D. Mich. LCivR 7.4(a).
Court properly terminated these Defendants based on the state
court's orders and because Plaintiff failed to timely
serve the Defendants, which by operation of law resulted in
these Defendants being dismissed from the case without
prejudice. Contrary to Plaintiffs argument (ECF No. 19 at
PageID.347), jurisdiction over this case rests with this
Court following a proper removal, and this Court's action
is not subject to a "final decision" on Plaintiffs
subsequent motions for reconsideration in state court.
IS HEREBY ORDERED that the Objection (ECF No. 16) is
DENIED and the Report and Recommendation of the Magistrate
Judge (ECF No. 14) is APPROVED and ADOPTED as the Opinion of
IS FURTHER ORDERED that the Motion to Remand (ECF
No. 8) is DENIED.
IS FURTHER ORDERED that Plaintiffs Motion for