Long v. Lockheed Missiles and Space Co., Inc.

• Citation: 783 F. Supp. 249
• Decision Date: 04 February 1992
• Docket Number: Civ. A. No. 2:91-519-IJ.
• Parties: Hoyt M. LONG, Plaintiff, v. LOCKHEED MISSILES AND SPACE COMPANY, INC. and C. Thomas Cook, Defendants.
• Court: U.S. District Court — District of South Carolina

783 F. Supp. 249

Hoyt M. LONG, Plaintiff,
v.
LOCKHEED MISSILES AND SPACE COMPANY, INC. and C. Thomas Cook, Defendants.

Civ. A. No. 2:91-519-IJ.

United States District Court, D. South Carolina, Charleston Division.

February 4, 1992.

783 F. Supp. 250

Hans F. Paul, North Charleston, S.C., for Hoyt M. Long.

David Brian McCormack, Charleston, S.C., for Lockheed Missiles and Space Co., Inc.

Morris Dawes Cooke, Jr., Charleston, S.C., for C. Thomas Cook.

ORDER

HAWKINS, Chief Judge.

This matter is before the court on the order of the magistrate judge made in accordance with Title 28, United States Code, Section 636(b)(1)(A) and the standing order of this court dated June 19, 1990. Objections to the magistrate judge's order to remand this case to state court were filed by the defendants on August 19, 1991 and August 26, 1991. Pursuant to Local Rule 12.08, DSC, the court determined that a hearing on the motion was unnecessary.

STANDARD OF REVIEW

The defendant Lockheed Missiles and Space Company, Inc. (Lockheed) raised the issue of whether an order remanding the case was within the power of the magistrate judge or whether such a motion was dispositive, in which case the magistrate judge should submit a report and recommendation. The defendant's challenge presents a question of first impression for this court. Pursuant to 28 U.S.C. § 636(b)(1)(A),

a magistrate may hear and determine any pretrial matter pending before the court, except a motion for injunctive relief, for judgment on the pleadings, for summary judgment, ..., to dismiss or 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. A judge of the court may reconsider any pretrial matter under this subparagraph (A) where it has been shown that the magistrate's order is clearly erroneous or contrary to law.

A motion to remand does not explicitly fall within any of the dispositive motions set forth in 28 U.S.C. § 636. This omission has lead to a split in authority on the question. One line of cases had held that a motion to remand is not dispositive, relying solely on a statutory argument. See Walker v. Union Carbide Corp., 630 F.Supp. 275 (D.Me.1986); Jacobsen v. Mintz, Levin, Cohn Ferris, Glorsky, & Popeo, P.C., 594 F.Supp. 583 (D.Me.1984). These cases hold that since a motion to remand is not included among the list of dispositive motions, it is not a dispositive motion. Another line of thought on the subject is that an order to remand is not dispositive because "upon remand to state court all parties will be able to assert any claim or defense permitted in federal court." Acme Electric Corporation v. Sigma Instruments, Inc., 121 F.R.D. 26, 28 (W.D.N.Y.1988).

In Giangola v. Walt Disney World Co., 753 F.Supp. 148, 152 (D.N.J.1990), however, the court held that a motion to remand was dispositive. The court stated:

Perhaps no issue is so accurately described as a determination which will destroy or uphold the Court's jurisdiction. While neither the statute nor the Local Rules specifically remove an order of remand from the jurisdiction of a magistrate, a remand order is the equivalent of a dismissal. The Magistrate's Order thus sought to effect an "involuntary dismissal" of the action. As such, the Magistrate was not empowered to hear the matter....

The analysis of the court in Giangola is the preferred approach to this case because it combines both the statutory language with the practical effects of a dismissal from federal court. Further, there is no provision in the Local Rules of this court governing this matter. See Local Rule 19, DSC. Therefore, the magistrate judge was without authority to issue an order to remand.

783 F. Supp. 251

Consequently, the order is viewed as a report and recommendation

By statute, the court is charged with conducting a de novo review of any portions of a magistrate judge's report to which specific objection is registered, and may accept, reject, or modify, in whole or in part, the recommendations contained in that report. 28 U.S.C. § 636(b)(1). The court is not bound by the recommendation of the magistrate judge and retains responsibility for the final determination. See Brock v. Heckler, 612 F.Supp. 1348, 1350 (D.C.S.C.1985). However, if neither party objects to the factual or legal conclusions of the magistrate judge, the statute does not require review of those conclusions by the district court. Thomas v. Arn, 474 U.S. 140, 149-50, 106 S.Ct. 466, 471-72, 88 L.Ed.2d 435 (1985), reh'g denied, 474 U.S. 1111, 106 S.Ct. 899, 88 L.Ed.2d 933 (1986). Accordingly, the court has reviewed, de novo, only those conclusions of the magistrate judge to which objections have been made.

FACTS

Having reviewed the entire matter de novo, the court adopts the facts and procedural history of the case as set forth in the order of the magistrate judge. Long alleges that the defendants have failed to show proper grounds for removal and that his complaint provides no basis for removal to federal court. 28 U.S.C. § 636(b)(1).

The plaintiff filed his complaint against defendants, Lockheed and C. Thomas Cook (Cook), on January 17, 1991, in state court. Long alleged causes of action against Cook for libel and slander and against Lockheed for breach of...