Vogel v. U.S. Office Products Co.

• Decision Date: 08 March 2001
• Docket Number: No. 99-1922,99-1922
• Citation: 258 F.3d 509
• Parties: (6th Cir. 2001) Gregory Vogel and Charles Cox, Plaintiffs-Appellees, v. U.S. Office Products Company; Navigant International, Inc.; Jonathan Ledecky; Thomas Morgan; Donald Platt; and Mark Director, Defendants-Appellants. Submitted:
• Court: U.S. Court of Appeals — Sixth Circuit

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258 F.3d 509 (6th Cir. 2001) Gregory Vogel and Charles Cox, Plaintiffs-Appellees,
v.
U.S. Office Products Company; Navigant International, Inc.; Jonathan Ledecky; Thomas Morgan; Donald Platt; and Mark Director, Defendants-Appellants. No. 99-1922 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT Submitted: March 8, 2001
Decided and Filed: July 25, 2001

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Copyrighted Material Omitted

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Richard A. Glaser, Rock A. Wood, Quadiru W. Kent, Dickinson & Wright, Grand Rapids, MI, for Plaintiffs-Appellees.

Matthew Wilkins, David A. Gardney, Butzel Long, Detroit, MI, David P. Donovan, WILMER, CUTLER & PICKERING, Washington, D.C., Wiley E. Mayne, HOLLAND & HART, Denver, Colorado, John C. Keeney, Jr., Kelleen McGinnis Scott, Daniel D. Barnhizer, HOGAN & HARTSON, Washington, D.C., for Appellants.

Before: SILER, MOORE, and CLAY, Circuit Judges.

OPINION

SILER, Circuit Judge.

Defendants, U.S. Office Products ("USOP"), Navigant International, Inc. ("Navigant"), Jonathan Ledecky, Thomas Morgan, Donald Platt, and Mark Director, seek review of a magistrate judge's order remanding a suit filed against them by plaintiffs, Gregory Vogel and Charles Cox, to state court. They contend that remand motions are dispositive motions and, as such, can only be granted by a district court. The district court held that remand motions can be issued by magistrate judges because they are nondispositive and, therefore, that it was precluded from reviewing the magistrate judge's remand order. We reverse and remand.

I. Background

In January 1999, Vogel and Cox filed suit against USOP, a supplier of office products; Navigant, a corporation formed by USOP; and Ledecky, Morgan, Platt, and Director, executive officers of USOP, in Michigan state court. Plaintiffs were stockholders in two businesses that were sold to USOP and, as a result of those sales, filed suit against defendants alleging fraud, misrepresentation, civil conspiracy, and violation of the Michigan Uniform Securities Act. Suits comprised of identical claims were brought by other individuals against the defendants in several other states ("other suits"). The other suits have since been removed to federal court, consolidated by the Judicial Panel on Multidistrict Litigation, and transferred to the U.S. District Court for the District of Columbia for pretrial proceedings.

Individual defendants were served with copies of the complaint at different times and, pursuant to 28 U.S.C. §§ 1441 and 1446, defendants filed several different notices to remove the case from state to federal court on the ground that original federal court jurisdiction existed under 28 U.S.C. § 1332. USOP and Navigant were served with copies of the complaint on February 16, 1999, while Ledecky, Morgan, Platt, and Director were served between March 5, 1999 and March 12, 1999.

On February 18, 1999, USOP filed a notice to remove the case from a Michigan state court to the United States District

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Court for the Western District of Michigan. USOP's removal notice stated that Navigant joined in its removal. On March 22, 1999, plaintiffs filed a motion to remand the case to state court because USOP did not effect a proper removal -- Navigant did not sign USOP's removal notice. On March 29, 1999, Ledecky and Morgan filed separate removal notices, which were joined by all other defendants. Morgan did not join in Ledecky's notice. Clerical error in the district court clerk's office prevented Morgan's removal notice from being docketed or placed in the appropriate case file.

The district court assigned the case to Magistrate Judge Doyle Rowland. On April 19, 1999, he issued an opinion and order pursuant to the plaintiffs' motion for order of remand. Because Morgan's timely removal notice was not properly docketed, the magistrate judge was unaware of that notice and remanded the case to a Michigan state court on the ground that Morgan had not joined all other defendants in removing the case to federal court. He correctly observed that, pursuant to 28 U.S.C. § 1446(a), all defendants must timely remove in order for removal to be valid in a multi-defendant action ("unanimity"). The magistrate judge's order did not inform defendants of their right to file objections to his remand with the district court. Just two days after the magistrate judge issued his remand order, the district court clerk sent a certified copy of that order to a Michigan state court.

Believing that they had met the unanimity requirement for removal despite the magistrate judge's order, defendants notified him that Morgan had timely filed a notice of removal. They presented him with a copy of the original removal notice filed by Morgan on March 29, 1999. The copy was time-stamped by the clerk's office, indicating that it had indeed been submitted to the court clerk on March 29, 1999. There is no dispute that Morgan filed that removal notice.

Defendants also took steps to effect a second removal. On April 28, 1999, Morgan filed a second notice of removal, in which he asked the district court to equitably toll the thirty-day time limit for removal because the court's clerical error prevented prior removal. The second notice of removal was joined by all other defendants and was filed under the same docket number, 5:99-CV-29 ("CV-29"), as the case disposed of by the magistrate judge in his April 19, 1999 remand order. On May 10, 1999, plaintiffs filed a second motion to remand.

The district court assigned a new docket number, 4:99-CV-57 ("CV- 57"), to defendants' second removal notice and the case was again assigned to Magistrate Judge Rowland. In a May 24, 1999 opinion captioned for case CV-57, the magistrate judge nonetheless considered the merits of his original April 1999 remand order in case CV-29. In that opinion, he acknowledged that Morgan had timely filed a removal notice on March 29, 1999 and stated that, because that notice was never docketed or placed into the proper court file, he was unaware of that notice when he originally remanded the case. The opinion contained two relevant sections of analysis. The first section stated that, although his first opinion and order were incorrect, he could not review them because a) a final remand order is a nondispositive order that a magistrate judge has the authority to enter and b) final remand orders are not reviewable under 28 U.S.C. § 1447(d). The second section stated that Morgan's second removal notice was untimely and denied equitable tolling.

Then, the magistrate judge granted plaintiffs' second motion for remand and

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ordered the district court clerk to "withhold certification and mailing of this decision to the state court" for three days to allow the parties to appeal his decision. In a May 27, 1999 document captioned with the docket numbers from both the first and second removal actions, CV-29 and CV-57, defendants filed "Objections to or, in the Alternative, Appeal from Magistrate Judge's Decisions on Remand" with the district court.

In response to the defendants' objections/appeal, the district court issued one opinion and two orders. See Vogel v. U.S. Office Prod. Co., 56 F. Supp.2d 859 (W.D. Mich. 1999). It acknowledged that Morgan filed a timely notice of removal on March 29, 1999 and that, but for "an error of the Court's Clerk," the case would have been properly removed. Id. at 861. The opinion evaluated the a) reviewability of...