Weatherup v. Weatherup

Middle District of Florida, flmd-8:2017-cv-00499

ORDER adopting Report and Recommendations re {{6}} Report and Recommendations. The Clerk of Court is directed to remand this case to state court (see order for instructions), and to close this case and terminate any pending motions. Signed by Judge Elizabeth A. Kovachevich on 4/24/2017. (EJJ)

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PageID 121 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMP A DIVISION SHAWN WEATHERUP, Plaintiff, V. Case No: 8: 17-cv-499-T-17TBM SHAWNA LEE BURFORD WEATHERUP, Defendant. ORDER This cause comes before the Court pursuant to the Report and Recommendation (Doc. No. 6) (the "R&R") entered by United States Magistrate Judge Thomas B. Mccoun, Ill on April 4, 2017. Through the R&R, the Magistrate Judge recommends that the Court deny the construed motion to proceed in forma pauperis (Doc. No. 2) (the "IFP Motion") filed by the Defendant, Shawna Lee Buford Weatherup (the "Defendant"), and that the case be remanded to state court. For the reasons set forth below, the R&R is ADOPTED AND INCORPORATED BY REFERENCE. I. Background The Defendant commenced this case by filing a notice purporting to remove a domestic relations case from the Circuit Court of the Sixth Judicial Circuit in and for Pasco County, Florida, along with the IFP Motion, on February 23, 2017. Magistrate Mccoun reviewed the notice of removal, together with the IFP Motion and supporting documents, and concluded that this Court lacks jurisdiction to consider the state court action. As a result, the Magistrate Judge recommends that the IFP Motion be denied, and the case PageID 122 remanded to state court for all further proceedings. As of the entry of this order, the Defendant has not responded to the R&R. II. Discussion Under the Federal Magistrate's Act (the "Act"), Congress vested Article Ill judges with the power to "designate a magistrate judge to hear and determine any pretrial matter pending before the court," subject to various exceptions. 28 U.S.C. § 636(b)(1)(A). The Act further vests magistrate judges with authority to "submit to the judge of the court proposed findings of fact and recommendations for the disposition" by an Article Ill judge. 28 U.S.C. § 636(b)(1)(8). "Within fourteen days after being served with a copy [of a magistrate's report and recommendation], any party may serve and file written objections to such proposed findings and recommendations." 28 U.S.C. § 636(b)(1). On review by the district court, "the court shall make a de novo determination of those portions of the report ... to which objection is made." Id. When no timely and specific objections are filed, case law indicates the court should review the findings using a clearly erroneous standard. Gropp v. United Airlines, Inc., 817 F.Supp. 1558, 1562 (M.D. Fla. 1993). Here, the Defendant has not objected to the R&R within the time permitted and, as a result, the Court deems the R&R to be unopposed. Upon due consideration, the Court concurs with the R&R. Ill. Conclusion Accordingly, it is ORDERED that the R&R is ADOPTED AND INCORPORATED BY REFERENCE. The IFP Motion is DENIED. The Clerk of Court is directed to REMAND this case to state court by sending a certified copy of this order to the Clerk of Court for the Circuit Court of the Sixth Judicial Circuit in and for Pasco County, Florida. 2 PageID 123 Order in Case No. 8:17-cv-00499-EAK-TBM It is further ORDERED that the Clerk of Court is directed to CLOSE this case, and TERMINATE any pending motions. DONE and ORDERED in Chambers, in Tampa, Florida this 24th day of April, 2017. l Unrepresented Parties 3