Vogel v. U.S. Office Products Co.

• Citation: 56 F.Supp.2d 859
• Decision Date: 12 July 1999
• Docket Number: No. 4:99 CV 57<SMALL><SUP>1</SUP></SMALL>.,4:99 CV 57<SMALL><SUP>1</SUP></SMALL>.
• Parties: Gregory F. VOGEL and Charles R. Cox, Plaintiffs, v. U.S. OFFICE PRODUCTS COMPANY, a Delaware Corporation, Navigant International, Inc., a Delaware corporation, Jonathon J. Ledecky, Thomas I. Morgan, Donald H. Platt, and Mark D. Director, Defendants.
• Court: U.S. District Court — Western District of Michigan

56 F.Supp.2d 859

Gregory F. VOGEL and Charles R. Cox, Plaintiffs, v. U.S. OFFICE PRODUCTS COMPANY, a Delaware Corporation, Navigant International, Inc., a Delaware corporation, Jonathon J. Ledecky, Thomas I. Morgan, Donald H. Platt, and Mark D. Director, Defendants.

No. 4:99 CV 57¹.

United States District Court, W.D. Michigan, Southern Division.

July 12, 1999.

Richard A. Glaser, Rock A. Wood, Dickinson Wright, PLLC, Grand Rapids, MI, for Gregory F. Vogel, Charles R. Cox, plaintiffs.

John Rounsaville, Jr., Wilmer, Cutler & Pickering, Washington, DC, for U.S. Office Products Co., David H. Platt, Mark D. Director, defendants.

Eugene A. Over, Jr., Navigant International, Inc., Englewood, CO, Wiley E. Mayne, Holland & Hart LLP, Denver, CO, for Navigant Intern., Inc., defendant.

John C. Keeney, Jr., Hogan & Hartson, Washington, DC, for Jonathon J. Ledecky, defendant.

Matthew Wilkins, Butzel Long, Detroit, MI, John Rounsaville, Jr., Wilmer, Cutler & Pickering, Washington, DC, for Thomas I. Morgan, defendant.

OPINION

ENSLEN, Chief Judge.

The facts of these matters are unfortunate. A detailed background may be found in Magistrate Judge Rowland's April 19, 1999 Opinion in 5:99-CV-29 ("Op.I"), and May 24, 1999 Opinion in 4:99-CV-57 ("Op.II"). Briefly, on March 22, 1999, Plaintiffs moved for remand. By March 29, 1999, all Defendants but Thomas Morgan appeared to have timely removed this action from state court or joined in the removal of others. In fact, Morgan had filed a notice of removal on March 29, 1999, contemporaneously with Defendant Ledecky, but due to an error of the Court's Clerk, this notice was never docketed or placed in the Court's file. Unaware of Morgan's notice, the Magistrate Judge issued an Order of remand premised, in pertinent part, on Morgan's failure to timely remove or consent to removal. The Clerk's office immediately certified the record back to state court. Defendant Morgan then re-filed his notice, on April 27, 1998. The new notice contained copies of consents to removal by all Defendants in 5:99-CV-29. Since 5:99-CV-29 already had been remanded, Morgan's second notice of removal began a new case, 4:99-CV-57. Plaintiffs then filed a second motion to remand. The Magistrate Judge determined that even though his remand order in 5:99-CV-29 had been in error, it was unreviewable. He then concluded that the second notice of removal, in 4:99-CV-57, was untimely. He again ordered remand, but also ordered the Clerk to refrain from certifying the remand until objections, if any, were received and ruled on by this Court. Defendants now appeal from the remand orders in both cases.

Reviewability of Case No. 5:99-CV-29

As noted above, the Magistrate Judge remanded 5:99-CV-29 to state court on April 19, 1999. The Court notes that to the extent that the present appeal is from 5:99-CV-29, it is untimely. See Fed. R.Civ.P. 72; W.D. Mich. LCivR 72.3 (providing ten-day periods in which to appeal from or object to magistrate orders or recommendations). Moreover, an order of remand is unreviewable. See infra at 7. However, because the appeal questions the Magistrate Judge's power to remand, and since a lack of such power could render his Order void ab initio, the Court will address the question presented by Defendants.

The fundamental question the Court must address is whether a motion for remand is a dispositive motion, subject to the provisions of Fed.R.Civ.P. 72(b) and 28 U.S.C. § 636(b)(1)(B), or a nondispositive motion governed by the provisions of Fed. R.Civ.P. 72(a) and 28 U.S.C. § 636(b)(1)(A). If dispositive, the Magistrate Judge was not empowered to order remand, but could only recommend remand, subject to objections and a subsequent order of the Court accepting or rejecting the recommendation.

The federal magistrate statute, 28 U.S.C. § 636, provides that magistrate judges may issue only proposed findings and recommended dispositions regarding motions "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." 28 U.S.C. § 636(b)(1)(B) & (A). These are the sort of motions described in the Federal Rules of Civil Procedure as "dispositive." The Sixth Circuit has determined that this list is not exhaustive of those matters which may be described as dispositive, that is, on which a Magistrate Judge may only recommend disposition. Callier v. Gray, 167 F.3d 977, 981 (6th Cir.1999). Instead, "motions that are similar to those listed" should be considered dispositive as well. Id. The Federal Rules of Civil Procedure have also acknowledged the non-exhaustive nature of the § 636(b)(1)(A) list, and has defined the class of matters subject to recommended dispositions as those "dispositive of a claim or defense of a party." Fed.R.Civ.P. 72(b). After a Magistrate Judge makes a recommendation on a dispositive motion, a party may object within ten days after service. 28 U.S.C. § 636(b)(1). A District Court judge must review de novo those portions of the recommendation to which objections are made. Id. The recommendation does not have the force of an order of the court. Instead, the District Court must issue an order accepting, rejecting or modifying the recommendation. Id.

A matter which is not dispositive may be "hear[d] and determine[d]" by a magistrate judge. 28 U.S.C. § 636(b)(1)(A). The magistrate judge's determination may be reconsidered by a district court judge, however, if it is shown to be "clearly erroneous or contrary to law." Id. Appeals from a magistrate judge's determination must be made within ten days. Fed.R.Civ.P. 72(a).²

The Magistrate Judge concluded that "[b]ecause a remand does not affect a party's claims or defenses, but only the forum in which they may be presented, a motion to remand is necessarily non-dispositive." (Op. II at 5.) This analysis is based on the language of Fed.R.Civ.P. 72(a), which, again, describes nondispositive matters as those "not dispositive of a claim or defense of a party." The Magistrate Judge adopted this conclusion aware that it was controversial. He noted that "ample authority exists to support" either a conclusion that remand is dispositive, or a conclusion that it is nondispositive. (Op. II at 5. See also Defendant's Objections at 9, Plaintiff's Opposition at 5-7.)

In their papers, Defendants rely principally on two cases to support their contention that a motion to remand is a dispositive motion. They are this Court's decision in United States Fidelity & Guar. Co. v. Thomas Solvent Co., 132 F.R.D. 660 (W.D.Mich.1990) (Enslen, J.), aff'd, 955 F.2d 1085 (6th Cir.1992) ("USF & G"), and In re U.S. Healthcare, 159 F.3d 142 (3rd Cir.1998). The Court concludes that the first is distinguishable, and the second is unpersuasive.

USF & G addressed whether a motion for realignment of parties was dispositive in nature. This Court determined that if the motion for realignment were granted, "the court would no longer have subject matter jurisdiction because diversity of citizenship would be lost." 132 F.R.D. at 665. The result of the motion, which was accompanied by a motion to dismiss, would be involuntary dismissal without prejudice, though "the parties [would be] free to file a new claim in state court." Id. This Court determined that since the result of the motion for realignment would be involuntary dismissal, it would dispose of the federal suit. The motion, therefore, was by its very nature dispositive. Without extensive discussion, the Sixth Circuit affirmed this conclusion. 955 F.2d at 1088.

It is reading too much into this Court's and the Sixth Circuit's decisions in USF & G to contend that they naturally lead to a conclusion that motions to remand are also dispositive in nature. A motion which would result in dismissal is, in crucial ways, different from a motion to remand. While it is true that in either instance a suit may end up in the same place — a state trial court — different features accompany dismissals and remands. When a case is dismissed, it is over. An affirmative act by the plaintiff, refiling, is required to resuscitate it. A remanded case is not over. Instead, it returns seamlessly to the state court from which it was removed.

This is not simply a technical distinction, exalting form over substance. There may be effects which attend refiling that would not occur in remand. For instance, to refile a dismissed case in state court a new filing fee must be paid. If a change in law occurred during the pendency of the dismissed federal case, that new law might apply to a newly filed case. As well, limitations periods may be affected by the time between dismissal in federal court, and refiling in state court. Because of the distinctions between a dismissal without prejudice and remand, the USF & G holding that a motion for realignment of parties is dispositive in nature does not direct a conclusion that a motion to remand is also dispositive.

More pertinent is the Third Circuit's decision in In re U.S. Healthcare, 159 F.3d 142 (3rd Cir.1998). There, addressing the precise issue of whether or not motions to remand are dispositive in nature, the Third Circuit determined that they are. The panel stated that "as far as the federal courts are concerned, a remand order is dispositive of all the claims and defenses in the case as it banishes the entire case from the federal court." Id. at 146. Despite this strong language, the court does not explain how a motion to remand is similar to the motions listed in § 636(b)(1)(A), or how "claims or defenses" are affected by such a motion. It simply assumes that a motion which may result in a change in forum is of such moment that it must be considered dispositive.

This Court concludes that a motion to...