DocketNumber： 92-1710
Filed Date： 11/10/1992
Status： Precedential
Modified Date： 9/21/2015
November 10, 1992
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
___________________
No. 92-1710
UNAUTHORIZED PRACTICE OF LAW COMMITTEE,
AND AVRAM COHEN
Plaintiffs, Appellees,
v.
REVEREND GERALD GORDON,
Defendant, Appellant.
__________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ronald R. Lagueux, U.S. District Judge]
___________________
___________________
Before
Breyer, Chief Judge,
___________
Torruella and Selya, Circuit Judges.
______________
___________________
Reverend Gerald Gordon on brief pro se.
______________________
James E. O'Neil, Attorney General, and Richard B. Woolley,
________________ __________________
Assistant Attorney General, on brief for appellees.
__________________
__________________
Per Curiam. In July 1991, Gerald Gordon filed a notice
___________
of removal in the Federal District Court for the District of
Rhode Island, purporting to remove a civil action, charging
Gordon with the unauthorized practice of law, that had been
filed against him in the Rhode Island state Superior Court in
June 1987. The state plaintiffs moved for summary dismissal
or, alternatively, to remand, alleging lack of jurisdiction,
untimeliness, res judicata,1 and insufficient service of
process. The motion was referred to a magistrate judge. The
magistrate held a hearing on November 20, 1991. Although
Gordon was notified of the hearing, he did not appear.
On January 8, 1992, the magistrate entered an order
remanding the matter to the state court. The magistrate
concluded that the federal court lacked subject matter
jurisdiction because the state court complaint did not aver
the existence of diversity of citizenship and the claims do
not arise under federal law. The magistrate also concluded
that the notice of removal failed to contain a short and
plain statement of the grounds for removal together with a
copy of all process, pleadings, and orders served upon Gordon
in state court, see 28 U.S.C. 1446(a), and that it failed
___
____________________
1. This was Gordon's third attempt to remove this state
court case to the federal court. We dismissed the appeal
from his first failed attempt for lack of jurisdiction.
Unauthorized Practice of Law Comm. v. Gordon, No. 87-1941
____________________________________ ______
(1st Cir. 1988). We dismissed the appeal from the second
failed attempt for lack of prosecution. Gordon v.
______
Unauthorized Practice of Law Comm., No. 88-1452 (1st Cir.
____________________________________
1988).
to comply with 28 U.S.C. 1446(b), in that Gordon had not
filed the notice of removal within 30 days after receipt of a
copy of the state court complaint. Gordon did not file any
objections nor did he seek review of this order in the
district court.
On June 2, 1992, the district court entered an order,
which stated:
The Memorandum and Order of Remand
entered by United States Magistrate Judge
Jacob Hagopian on January 7, 1992, in the
above matter, has become final since no
appeal has been timely filed and the time
for appealing has expired.
Gordon filed a notice of appeal from this order on June 16,
1992. We dismiss for lack of jurisdiction.
The Motion to Remand
The Motion to Remand
____________________
We digress briefly at the outset to consider the
authority of the magistrate vis-a-vis a motion to remand.
There is a split in the caselaw as to whether a magistrate
has the authority to enter a final order of remand or whether
a magistrate's power extends only to making a report and
recommendation on the issue of remand to the district court,
which, in turn, renders a determination. The disparity in
views turns on whether a motion for remand is a dispositive
matter.
Section 636(b)(1)(A) of Title 28 permits the district
court to refer to a magistrate for hearing and determination
-3-
any pending pretrial matter, with the exception of, what have
been termed, dispositive matters, therein listed as:
a motion for injunctive relief, for
judgment on the pleadings, for summary
judgment, to dismiss or quash an
indictment or information made by the
defendant, to suppress evidence in a
criminal case, to dismiss or to permit
maintenance of a class action, to dismiss
for failure to state a claim upon which
relief can be granted, and to
involuntarily dismiss an action.
As for a nondispositive matter referred to a magistrate, the
magistrate enters a final order. Fed. R. Civ. P. 72(a).
Within 10 days of service of a copy of the order, a party may
serve and file objections, which the district court judge
shall consider, under a standard of review of clearly
erroneous or contrary to law. Id.
___
Pursuant to 636(b)(1)(B), the district court may also
refer to a magistrate any of the excepted dispositive matters
listed in 636(b)(1)(A). In that instance, however, the
magistrate files proposed findings and recommendations with
the district court. 28 U.S.C. 636(b)(1)(B). Within 10
days of service of a copy of the proposed findings and
recommendations, a party may serve and file objections, which
the district court reviews de novo. Id.; see also Fed. R.
___ ________
Civ. P. 72(b).
A motion to remand is not specifically listed as an
excepted dispositive matter in 636(b)(1)(A). Accordingly,
some courts have determined that it is a nondispositive
-4-
matter within the authority of the magistrate to determine by
final order. McDonough v. Blue Cross of Northeastern
_________ _____________________________
Pennsylvania, 131 F.R.D. 467 (W.D. Pa. 1990) (district court
____________
order upholding memorandum and order of magistrate); North
_____
Jersey Savs. & Loan Assoc. v. Fidelity & Deposit Co., 125
___________________________ _______________________
F.R.D. 96, 98 (D.N.J. 1988); Jacobsen v. Mintz, Levin, Cohn,
________ ____________________
Ferris, Glovsky & Popeo, P.C., 594 F. Supp. 583, 586 (D. Me.
_____________________________
1984); see also Walker v. Union Carbide Corp., 630 F. Supp.
________ ______ ___________________
275, 277 (D. Me. 1986) (relying on Jacobsen, supra, and
________ _____
reviewing order of remand under standard of clearly erroneous
or contrary to law).
On the other hand, at least two courts view a remand
order as the equivalent of an involuntary dismissal - a
dispositive matter specifically excepted from those in which
a magistrate has the authority to enter a final order. Long
____
v. Lockheed Missiles & Space Co., 783 F. Supp. 249, 250-51
______________________________
(D.S.C 1992); Giangola v. Walt Disney World Co., 753 F. Supp.
________ _____________________
148, 152 (D.N.J. 1990).2 According to these courts, a
magistrate, presented with a motion to remand, is restricted
to proposing findings and recommendations for disposition by
the district court. Long v. Lockheed Missiles & Space Co.,
____ ______________________________
783 F. Supp. at 250-51; Giangola v. Walt Disney World Co.,
________ ______________________
753 F. Supp. at 152.
____________________
2. Although at odds with North Jersey Savs. & Loan, supra, a
_________________________ _____
case also from the District of New Jersey, the Giangola
________
opinion does not mention it.
-5-
It is evident that the magistrate and the district court
judge in the instant case treated the motion to remand as a
nondispositive matter within the authority of the magistrate
to determine by final order. While we note the existing and
conflicting caselaw on this issue, we need not enter the fray
at this time for we conclude that, in any event, we lack
jurisdiction over this appeal.
Appellate Jurisdiction
Appellate Jurisdiction
______________________
"An order remanding a case to the State court from which
it was removed is not reviewable on appeal or otherwise
[subject to an exception not applicable in this case]." 28
U.S.C. 1447(d). The magistrate's order remanded for lack
of jurisdiction. An order remanding for lack of jurisdiction
is immune from review, whether erroneous or not. Thermtron
_________
Prods., Inc. v. Hermansdorfer, 423 U.S. 336, 343 (1976);
_____________ _____________
Gravitt v. Southwestern Bell Tel. Co., 430 U.S. 723 (1977);
_______ ___________________________
Volvo of Am. Corp. v. Schwarzer, 429 U.S. 1331, 1332
_____________________ _________
(Rehnquist, Circuit Justice 1976).
As noted, supra, at 4-5, the district court, in North
_____ _____
Jersey Savs. & Loan v. Fidelity & Deposit Co., 125 F.R.D. at
___________________ _______________________
98, concluded that a motion to remand is a nondispositive
matter in which a magistrate may enter a final order,
pursuant to 636(b)(1)(A), which, if timely objected to, the
district court considers under a standard of review of
clearly erroneous or contrary to law. See also Fed. R. Civ.
________
-6-
P. 72(a). The North Jersey Savs. & Loan court noted that
___________________________
this provision for district court review of a magistrate's
final order of remand is seemingly at odds with 1447(d)'s
prohibition of "review[] on appeal or otherwise." North
_____
Jersey Savs. & Loan v. Fidelity & Deposit Co., 125 F.R.D. at
____________________ ______________________
98-99. That court found significant the introductory
language of 636(b)(1) -"[n]otwithstanding any provision of
law to the contrary."3 Id. It also found significant that
___
this language was enacted after the enactment of the Removal
Act's prohibition of review of remand orders. Id. The North
___ _____
Jersey Savs. & Loan court concluded that Congress intended,
____________________
by this later-enacted language, to preempt 1447(d)'s
prohibition of review of remand orders and to permit district
court review of a magistrate's final order of remand. Id.
___
As with the question of the dispositive/nondispositive
nature of a motion to remand, we need not, and do not,
resolve the relationship between 636(b)(1)(A)'s grant, to
the district court, of review of a magistrate's final order
of remand (assuming that a motion to remand is a
nondispositive matter) and 1447(d)'s prohibition of review
of orders of remand. We conclude that whether or not we
concurred with the reasoning of the North Jersey Savs. & Loan
_________________________
court, Gordon cannot obtain review in this court.
____________________
3. The provision for district court review appears
immediately thereafter in subsection "(A)" of 636(b)(1).
-7-
Gordon filed no objections with the district court to
the magistrate's January 8th order of remand. If, as in the
view of the magistrate and district court below (and the
North Jersey Savs. & Loan court), the motion to remand was a
_________________________
nondispositive matter, permitting the magistrate to enter a
final order, Gordon has waived review of that order.
Within 10 days after being served with a
copy of the magistrate's order, a party
may serve and file objections to the
order; a party may not thereafter assign
as error a defect in the magistrate's
order to which objection was not timely
made.
Rule 72(a) (governing nondispositive matters). Even if
636(b)(1)(A) permitted district court review of the
magistrate's final order of remand, notwithstanding the
language of 1447(d), Gordon's failure to file objections
with the district court has barred any review he might have
had. Moreover, even if 636(b)(1)(A) permits district court
______________
review of the magistrate's final order of remand,
notwithstanding the language of 1447(d), it does not speak
to review in this court. The language of 1447(d)
____
prohibiting "review[] on appeal or otherwise" of a remand
order would, it seems, apply, nonetheless, to an appeal from
the district court's review of the magistrate's final order
of remand.
On the other hand, as we have noted, some courts view a
motion to remand as a dispositive matter in which a
-8-
magistrate is restricted to proposing findings and
recommendations for disposition by the district court.
Gordon's quest for appellate review fares no better under
this view. Even were we to construe the magistrate's order
of remand as a recommendation to the district court, Gordon's
failure to object to that order/recommendation bars further
appellate review. Scott v. Schweiker, 702 F.2d 13, 14 (1st
_____ _________
Cir. 1983). More to the point, however, 1447(d)'s
prohibition on review of a remand order dooms Gordon's appeal
here.
Accordingly, we dismiss this appeal for lack of
jurisdiction.
Appeal dismissed.
_________________
-9-
Samuel E. Scott v. Richard S. Schweiker , 702 F.2d 13 ( 1983 )
Jacobsen v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.... , 594 F. Supp. 583 ( 1984 )
Thermtron Products, Inc. v. Hermansdorfer , 96 S. Ct. 584 ( 1976 )
Gravitt v. Southwestern Bell Telephone Co. , 97 S. Ct. 1439 ( 1977 )
Long v. Lockheed Missiles and Space Co., Inc. , 783 F. Supp. 249 ( 1992 )