Flam v. Flam, No. 12-17285 (9th Cir. 2015)
Annotate this CaseThis case stemmed from a dispute related to the division of pension assets after a divorce. At issue is whether a magistrate judge is empowered to issue an order remanding a removed case to state court, and whether such an order, once made, may be reviewed by the district court. The court held that a remand order made under 28 U.S.C. 1447(c) is not within the power of a magistrate judge to issue under 28 U.S.C. 636. The court agreed with its sister circuits and held that a motion to remand is properly characterized as a dispositive motion under section 636(b)(1)(A), meaning that a remand order cannot be issued by a magistrate judge. Thus, a magistrate judge presented with a motion for remand “should provide a report and recommendation to the district court that is subject to de novo review.” Because the magistrate lacked the authority to issue a remand order under section 1447(c), section 1447(d) poses no bar to review under court precedent. Accordingly, the court reversed and remanded with instructions.
Court Description: Magistrate Judges. The panel reversed the district court’s judgment remanding a removed case to state court following a magistrate judge’s grant of a motion for remand. The panel held that a remand order made under 28 U.S.C. § 1447(c) is not within the power of a magistrate judge to issue under 28 U.S.C. § 636. Following the functional approach adopted by the Third, Sixth, and Tenth Circuits, the panel held that a motion to remand is a dispositive motion because remand orders put litigants out of federal court. Thus, a magistrate judge presented with a motion for remand should provide a report and recommendation to the district court. The panel held that 28 U.S.C. § 1447(d) did not bar review of the magistrate judge’s order. The panel remanded the case to the district court with instructions to consider the motion to remand in the first instance or to request that the magistrate judge prepare a report and recommendation regarding the motion.
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