VAQUILLAS RANCH v. TEXACO EXPLORATION AND PRODUCTION, CIVIL CAUSE No. L-93-030.

• Court: United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
• Citation: 844 F. Supp. 1156
• Docket Number: CIVIL CAUSE No. L-93-030.
• Parties: VAQUILLAS RANCH COMPANY, LTD., J.O. Walker, Jr., Gene S. Walker, Evan B. Quiros, and E. Walker Quiros, a/k/a Mary Elizabeth Walker Quiros, Plaintiffs, v. TEXACO EXPLORATION AND PRODUCTION, INC., and Four Star Oil & Gas Company, Defendants, v. TRANSCONTINENTAL GAS PIPE LINE CORPORATION, and Transco Gas Supply Company, Third-Party Defendants.
• Decision Date: 28 February 1994

844 F. Supp. 1156

VAQUILLAS RANCH COMPANY, LTD., J.O. Walker, Jr., Gene S. Walker, Evan B. Quiros, and E. Walker Quiros, a/k/a Mary Elizabeth Walker Quiros, Plaintiffs,
v.
TEXACO EXPLORATION AND PRODUCTION, INC., and Four Star Oil & Gas Company, Defendants,
v.
TRANSCONTINENTAL GAS PIPE LINE CORPORATION, and Transco Gas Supply Company, Third-Party Defendants.

CIVIL CAUSE No. L-93-030.

United States District Court, S.D. Texas, Brownsville Division.

February 28, 1994.

844 F. Supp. 1157

Timothy E. Gehl, Michael B. Silva, Scott, Douglass & Luton, Houston, TX, George J. Person, Laredo, TX, for plaintiffs.

Charles C. Murray, McAllen, TX, Craig A. Haynes, Thompson & Knight, Dallas, TX, Ricardo Daniel Palacios, Laredo, TX, William T. Hankinson, Thompson & Knight, Dallas, TX, for defendants Texaco Exploration and Production, Inc., and Four Star Oil & Gas Co.

Jeffrey K. Smith, New Orleans, LA, for defendant Four Star Oil & Gas Co.

Timothy J. Herman, Brown McCarroll & Oaks Hartline, Austin, TX, for third-party defendants Transcontinental Gas Pipe Line Corp. and Transco Gas Supply Co.

Gaye L. Rothman, Brown McCarroll & Oaks Hartline, Austin, TX, for third-party defendant Transcontinental Gas Pipe Line Corp.

MEMORANDUM AND ORDER

VELA, District Judge.

Pending before the Court are Plaintiffs' Motion for Redesignation of Memorandum and Order Denying Remand, and Plaintiffs' Motion for Reconsideration of, and Objections to, Memorandum and Order Denying Plaintiffs' Motion to Remand. The issues presented in this case are (1) whether Plaintiffs' motions are timely; (2) whether a motion to remand is dispositive or nondispositive under Federal Rule of Civil Procedure 72 and 28 U.S.C. § 636(b)(1), and determination of the appropriate standard of review based on that finding; and, (3) application of the appropriate standard of review to this Court's reconsideration of the Magistrate Judge's Memorandum and Order denying Plaintiffs' Motion to Remand.

Factual and Procedural Background

Plaintiffs filed this case in December, 1992 in Webb County, Texas to recover royalties they claim are owed to them by Defendants. The case was removed by Defendants to United States District Court in Laredo on March 3, 1993 based on diversity. A Motion to Remand was timely filed by Plaintiffs on April 2, 1993. On April 16, 1993, U.S. District Judge George P. Kazen recused himself and the case was transferred to this Court. The case was assigned to United States Magistrate Judge John Wm. Black pursuant to 28 U.S.C. § 636(b)(1)(A). In a Memorandum and Order dated September 27, 1993, Judge Black denied Plaintiffs' Motion to Remand, finding that Defendant Texaco Exploration and Production, Inc. was fraudulently joined to defeat diversity. On October 18, 1993, Plaintiffs filed the two motions now under consideration.

844 F. Supp. 1158

Motion for Redesignation

In their Motion for Redesignation, Plaintiffs assert that a United States Magistrate Judge lacks the statutory authority to deny a motion for remand. (Plaintiffs' Motion for Redesignation, p. 2, ¶ 2). Accordingly, Plaintiffs request that the Memorandum and Order denying remand be redesignated as "Findings of Fact and Recommendations" and reviewed de novo by this Court.¹ Plaintiffs cite Long v. Lockheed Missiles & Space Co., 783 F.Supp. 249, 250 (D.S.C.1992) and Giangola v. Walt Disney World Co., 753 F.Supp. 148, 152 (D.N.J.1990) in support of their position.

Defendants respond that the Motion for Redesignation "should be denied because it is contrary to the rules of procedure, the governing statute, and the case law interpreting the rules and the statute." (Defendants' Response, page 1, ¶ 1). Defendants assert that the Magistrate Judge's Memorandum and Order "does not dispose of any claims or defenses" within the meaning of Rule 72 of the Federal Rules of Civil Procedure, nor is it included in the list of motions subject to de novo review by the district court under 28 U.S.C. § 636(b)(1). The Defendants also cite several cases for the proposition that a motion to remand is not a dispositive motion for purposes of § 636 or Rule 72, and thus a district court's review of a magistrate judge's remand ruling is limited to the standard of clearly erroneous or contrary to law. Defendants characterize Plaintiffs' supporting cases as aberrant, not controlling, and against the great weight of authority. Finally, Defendants assert that Plaintiffs' Motions are untimely and thus cannot be considered.

The Plaintiffs reply that the listing found in § 636(b)(1)(A) is neither exhaustive nor mandatory. Plaintiffs assert further that though there are cases holding against their position, the Fifth Circuit has not resolved the issue; Plaintiffs then go on to cite an unpublished opinion by former Chief Judge DeAnda of the Southern District of Texas stating that "a motion to remand is dispositive and demands the full attention of an Article III Judge." (Plaintiffs' Reply to Defendants' Response, page 3, ¶ 3 (citing to Houston Petroleum Co. v. Graham Royalty, Ltd., No. CA-G-90-0085 (S.D.Tex. August 20, 1990)). Plaintiffs' also contest the assertion that their Motions were untimely. The Court will dispose of the timeliness issue first.

Timeliness

Defendants' assertion in paragraph six of their Response that Plaintiffs' objections were untimely ignores Rule 6 of the Federal Rules of Civil Procedure. This rule sets out the method for computing time periods such as the ten day period for objecting to a magistrate judge's orders or recommendations contained in Rules 72(a) and (b) and in 28 U.S.C. § 636(b)(1).

Rule 72(a) and (b), as well as § 636(b)(1), provide that a party has ten days after being served with a copy of the magistrate judge's order to make objections.² Service by mail is complete upon mailing under Federal Rule of Civil Procedure 5(b).

Plaintiffs are given three additional days for service by mail under Rule 6(e).³ Under

844 F. Supp. 1159

Rule 6(a),⁴ Plaintiffs are also credited with weekends and holidays because the prescribed time period is less than eleven days. Also pursuant to Rule 6(a), "the day of the act ... from which the designated period of time begins to run shall not be included," and the last day "shall be computed, unless it is a Saturday, a Sunday, or a legal holiday...."

Questions have arisen in other cases as to whether the three days provided for mailing are to be added to the prescribed period, here ten days, in order to determine if the eleven day limit for application of Rule 6(a)'s weekend and holiday exclusions are applicable. The Court concludes that the answer to that question is no.

The Court finds persuasive and adopts the sound reasoning of the court in Nalty v. Nalty Tree Farm, 654 F.Supp. 1315 (S.D.Ala. 1987), which held that "the response periods to magistrates' recommendations should be computed by first applying the less-than-eleven day provision of Rule 6(a) to the ten day time period prescribed by Rule 72(b), thereby excluding any intervening Saturdays, Sundays, and legal holidays. The date of service shall be the date on which the Clerk of Court mails out the magistrate's recommendation. citations omitted After establishing an initial response date by this method, three additional days should be added pursuant to Rule 6(e). If the final day should fall on a weekend or legal holiday, the objection should be due on the first official business day thereafter." Nalty, 654 F.Supp. at 1317-18. This approach was adopted by the Ninth Circuit in Tushner v. U.S. District Court for the Central District of California, 829 F.2d 853 (9th Cir.1987). Accord, National Savings Bank of Albany v. Jefferson Bank, 127 F.R.D. 218 (S.D.Fla. 1989); Cardente v. Fleet Bank of Maine, Inc., 146 F.R.D. 13, 21 (D.Me.1993); United States v. Certain Real Property in Waterboro, et al., 812 F.Supp. 259, 260 (D.Me. 1991); Andrew Corp. v. Gabriel Electronics, Inc., 735 F.Supp. 24, 26 n. 1 (D.Me.1990).

The Court notes that although the Nalty court made its ruling in terms of Rule 72(b), the same reasoning would now apply to Rule 72(a) on nondispositive motions since the wording of that Rule has been changed to match the wording of Rule 72(b) and § 636(b)(1), requiring a response within ten days following service, rather ten days following entry of the order.

The question also arises as to whether weekends or holidays are to be counted in the three day extension of time. The Court concludes that the answer to that question is also no. The court in National Savings found that they should not, based on a technical reading of the Rules 6(a) and 6(e). National Savings Bank of Albany, 127 F.R.D. at 222 n. 7; see also, Winters v. F.D.I.C., 812 F.Supp. 1, 4 (D.Me.1992). This does not alter the holding in Nalty, however, that if the final day of the three day period is a weekend or holiday, the period should be extended to the next business day. This Court adopts the combined approach of Nalty and National Savings and will not exclude weekends and holidays from the computation of the three day mailing extension of Rule 6(e), but will extend the period to the next official business day if the last day of the three days falls on a weekend or holiday.

The Magistrate Judge's Memorandum and Order was signed on September 27, 1993 and mailed on September 28, 1993, according the file stamp and the Certified Mail Receipt. Under Rule 5(b), service of the Memorandum

844 F. Supp. 1160

and Order was complete on September 28, 1993 and that day is therefore excluded from the computation of time under Rule 6(a). The first day computed is Wednesday, September 29, 1993. September 30, 1993 and October 1, 1993 are days two and three, respectively. October 2 and 3, 1993 are a weekend. Monday, October 4, 1993 to Friday, October 8, 1993 are days four through eight. October 9 and 10, 1993 are a weekend and Monday, October 11, 1993 is Columbus Day, a legal holiday. Tuesday, October 12...