Gage v. Michigan Department of Health and Human Services

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION CALVIN GAGE, ) Plaintiff, ) ) No. 1:22-cv-01206 v. ) ) Hon. Paul L. Maloney MICHIGAN DEPARTMENT OF HEALTH ) AND HUMAN SERVICES ET AL., ) ) Defendants. ) ) ORDER REJECTING AND RETURNING R&R Plaintiff Calvin Gage commenced this action in the Kalamazoo County Circuit Court on August 11, 2022, and Defendants removed the action to this Court. In his amended complaint, Plaintiff brought four claims: (1) wrongful discharge in violation of public policy under Michigan law; (2) violation of the anti-retaliation provision of the False Claims Act (“FCA”), 31 U.S.C. § 3730(h)(1); (3) retaliation in violation of the First Amendment; and (4) retaliation in violation of Article I of the Michigan Constitution. (ECF No. 1-1). Judge Berens issued a Report and Recommendation (“R&R”) granting in part and denying in part Defendants’ motion to dismiss. (ECF No. 7).

Under Federal Rule of Civil Procedure 72(b)(2), a district judge may return a report and recommendation to the magistrate judge with instructions. The Court returns this case to the Magistrate without expressing a decision on the merits. The R&R concluded that Defendants procedurally waived their argument regarding waiver of immunity upon removal; that was erroneous. The Magistrate shall address Defendants’ immunity argument regarding , 553 U.S. 613 (2002). Additionally, the Magistrate shall address Plaintiff’s pending motion for leave to file a second amended complaint. (ECF No. 9).

IT IS HEREBY ORDERED that the Report and Recommendation (ECF No. 7) issued by the Magistrate is REJECTED and RETURNED for further consideration.

IT IS FURTHER ORDERED that Plaintiff’s motion for leave to file a second amended complaint (ECF No. 9) is referred to the Magistrate.

IT IS SO ORDERED.

Date: October 2, 2023 /s/ Paul L. Maloney Paul L. Maloney United States District Judge