Opinion
Case No.: 2:13-cv-1084-TMP
08-11-2014
Heritage Bank of the South, as successor to Frontier Bank; Plaintiff, v. Jones & Jones Construction LLC, and Vernon C. Jones; Defendants.
ORDER ADOPTING IN PART REPORT AND RECOMMENDATION AND RECOMMITTING CASE TO MAGISTRATE JUDGE
On May 22, 2014, the Magistrate Judge filed a Report and Recommendation recommending that (1) the Court grant Heritage Bank's motion for summary judgment, or in the alternative for default judgment (Doc. 19), to the extent that default be entered in favor of plaintiff Heritage Bank and against defendant Jones & Jones, on the claim for breach of the note; (2) summary judgment be entered in favor of Heritage Bank and against Mr. Jones on the breach of guaranty claim; and (3) summary judgment be entered in favor of the FDIC on any counterclaim asserted by Mr. Jones. (Doc. 19, p. 12). No party filed an objection to the Report and Recommendation.
Having carefully reviewed and considered de novo all the materials in the Court file, including the Report and Recommendation, the Court ACCEPTS and ADOPTS the Magistrate Judge's finding that the FDIC appears as a party "only to the extent that it is a defendant to a counterclaim of breach of some unwritten agreement to which [the defendant] alludes in his letter." (Doc. 19, p. 10). Thus, "the only claims before the court are the plaintiff's claims of breach of the note, and breach of the guaranty." (Doc. 19, p. 10 n. 5). In light of this finding and under 28 U.S.C. § 636(b)(1), the Court RECOMMITS this action to the Magistrate Judge to examine subject matter jurisdiction. Specifically, the Court asks the Magistrate Judge to please address whether the Court may properly exercise subject matter jurisdiction under the well-pleaded complaint rule or under 28 U.S.C §1441(c).
The Court asks the Clerk to please TERM Doc. 19.
DONE and ORDERED this August 11, 2014.
/s/_________
MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE
See Holmes Group, Inc. v. Vornado Air Circulation Systems, Inc., 535 U.S. 826, 828 (2002) (holding that district court did not properly exercise jurisdiction on the basis of a compulsory counterclaim which arose under federal law when the plaintiff's claims did not provide a basis for federal jurisdiction).