Unauthorized v. Gordon

• Court: Court of Appeals for the First Circuit
• Decided: November 10, 1992
• Docket: 92-1710
• Status: Published

Opinion

USCA1 Opinion

November 10, 1992

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ___________________

No. 92-1710

UNAUTHORIZED PRACTICE OF LAW COMMITTEE,
                                   AND AVRAM COHEN
                                Plaintiffs, Appellees,

                                          v.

                               REVEREND GERALD GORDON,
                                Defendant, Appellant.

__________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ronald R. Lagueux, U.S. District Judge]
                                             ___________________

                                 ___________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________
                         Torruella and Selya, Circuit Judges.
                                              ______________

                                 ___________________

               Reverend Gerald Gordon on brief pro se.
               ______________________
               James E.  O'Neil, Attorney General, and  Richard B. Woolley,
               ________________                         __________________
          Assistant Attorney General, on brief for appellees.

__________________

                                 __________________ 

Per  Curiam.  In July 1991, Gerald Gordon filed a notice
                 ___________

            of  removal in the Federal District Court for the District of

            Rhode Island,  purporting to remove a  civil action, charging

            Gordon with  the unauthorized practice of law,  that had been

            filed against him in the Rhode Island state Superior Court in

            June 1987.  The state plaintiffs moved for  summary dismissal

            or, alternatively, to remand,  alleging lack of jurisdiction,

            untimeliness,  res  judicata,1  and  insufficient  service of

            process.  The motion was referred to a magistrate judge.  The

            magistrate held a  hearing on  November 20,  1991.   Although

            Gordon was notified of the hearing, he did not appear.

                 On  January 8,  1992,  the magistrate  entered an  order

            remanding the  matter to  the  state court.   The  magistrate

            concluded  that  the  federal  court  lacked  subject  matter

            jurisdiction because  the state court complaint  did not aver

            the  existence of diversity of  citizenship and the claims do

            not arise under federal law.   The magistrate also  concluded

            that  the notice  of removal  failed to  contain a  short and

            plain statement of  the grounds for  removal together with  a

            copy of all process, pleadings, and orders served upon Gordon

            in state court, see  28 U.S.C.   1446(a), and  that it failed
                            ___

____________________

            1.  This  was Gordon's  third  attempt to  remove this  state
            court case to  the federal  court.  We  dismissed the  appeal
            from  his  first failed  attempt  for  lack of  jurisdiction.
            Unauthorized  Practice of  Law Comm.  v. Gordon,  No. 87-1941
            ____________________________________     ______
            (1st Cir. 1988).   We  dismissed the appeal  from the  second
            failed  attempt   for  lack   of  prosecution.     Gordon  v.
                                                               ______
            Unauthorized  Practice of  Law Comm.,  No. 88-1452  (1st Cir.
            ____________________________________
            1988).  

to comply  with 28 U.S.C.    1446(b), in that  Gordon had not

            filed the notice of removal within 30 days after receipt of a

            copy of the  state court complaint.  Gordon did  not file any

            objections  nor did  he  seek review  of  this order  in  the

            district court.

                 On June  2, 1992, the  district court entered  an order,

            which stated:

                      The  Memorandum  and   Order  of   Remand
                      entered by United States Magistrate Judge
                      Jacob Hagopian on January 7, 1992, in the
                      above  matter, has become  final since no
                      appeal has been timely filed and the time
                      for appealing has expired.

            Gordon filed a notice  of appeal from this order on  June 16,

            1992.  We dismiss for lack of jurisdiction.

            The Motion to Remand
            The Motion to Remand
            ____________________

                 We  digress  briefly  at  the  outset  to  consider  the

            authority  of the  magistrate vis-a-vis  a motion  to remand.

            There is  a split in the  caselaw as to whether  a magistrate

            has the authority to enter a final order of remand or whether

            a  magistrate's power  extends only  to making  a report  and

            recommendation on the issue of remand to the  district court,

            which, in turn,  renders a determination.   The disparity  in

            views turns on whether  a motion for remand is  a dispositive

            matter.

                 Section 636(b)(1)(A)  of Title  28 permits  the district

            court  to refer to a magistrate for hearing and determination

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any pending pretrial matter, with the exception of, what have

            been termed, dispositive matters, therein listed as:

                      a  motion  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.

            As for a nondispositive matter referred to a magistrate,  the

            magistrate  enters a  final order.   Fed.  R. Civ.  P. 72(a).

            Within 10 days of service of a copy of the order, a party may

            serve  and file  objections, which  the district  court judge

            shall  consider,  under  a  standard  of  review  of  clearly

            erroneous or contrary to law.  Id.
                                           ___

                 Pursuant to   636(b)(1)(B),  the district court may also

            refer to a magistrate any of the excepted dispositive matters

            listed  in  636(b)(1)(A).    In that  instance, however,  the

            magistrate files proposed  findings and recommendations  with

            the district court.   28  U.S.C.   636(b)(1)(B).   Within  10

            days  of service  of  a copy  of  the proposed  findings  and

            recommendations, a party may serve and file objections, which

            the district court  reviews de novo.   Id.; see also  Fed. R.
                                                   ___  ________

            Civ. P. 72(b).

                 A  motion  to remand  is not  specifically listed  as an

            excepted dispositive matter in    636(b)(1)(A).  Accordingly,

            some  courts  have determined  that  it  is a  nondispositive

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matter within the authority of the magistrate to determine by

            final  order.    McDonough  v.  Blue  Cross  of  Northeastern
                             _________      _____________________________

            Pennsylvania, 131 F.R.D. 467  (W.D. Pa. 1990) (district court
            ____________

            order  upholding memorandum  and order of  magistrate); North
                                                                    _____

            Jersey Savs. &  Loan Assoc.  v. Fidelity &  Deposit Co.,  125
            ___________________________     _______________________

            F.R.D. 96, 98 (D.N.J. 1988); Jacobsen v. Mintz,  Levin, Cohn,
                                         ________    ____________________

            Ferris, Glovsky & Popeo, P.C., 594 F. Supp. 583, 586 (D.  Me.
            _____________________________

            1984);  see also  Walker v. Union Carbide Corp., 630 F. Supp.
                    ________  ______    ___________________

            275,  277 (D.  Me.  1986) (relying  on  Jacobsen, supra,  and
                                                    ________  _____

            reviewing order of remand under standard of clearly erroneous

            or contrary to law).

                 On the other  hand, at  least two courts  view a  remand

            order  as  the equivalent  of  an involuntary  dismissal  - a

            dispositive matter specifically excepted  from those in which

            a magistrate has the authority to enter a final order.   Long
                                                                     ____

            v.  Lockheed Missiles & Space  Co., 783 F.  Supp. 249, 250-51
                ______________________________

            (D.S.C 1992); Giangola v. Walt Disney World Co., 753 F. Supp.
                          ________    _____________________

            148,  152  (D.N.J.  1990).2   According  to  these  courts, a

            magistrate, presented with a  motion to remand, is restricted

            to proposing findings and  recommendations for disposition by

            the district court.   Long v. Lockheed Missiles &  Space Co.,
                                  ____    ______________________________

            783  F. Supp. at 250-51;  Giangola v. Walt  Disney World Co.,
                                      ________    ______________________

            753 F. Supp. at 152.

____________________

            2.  Although at odds with North Jersey Savs. & Loan, supra, a
                                      _________________________  _____
            case also  from  the District  of  New Jersey,  the  Giangola
                                                                 ________
            opinion does not mention it.

                                         -5-

It is evident that the magistrate and the district court

            judge in the instant case  treated the motion to remand  as a

            nondispositive matter within the authority of the  magistrate

            to determine by final order.  While we note the  existing and

            conflicting caselaw on this issue, we need not enter the fray

            at this time  for we  conclude that,  in any  event, we  lack

            jurisdiction over this appeal.

            Appellate Jurisdiction
            Appellate Jurisdiction
            ______________________

                 "An order remanding a case to the State court from which

            it  was  removed is  not  reviewable on  appeal  or otherwise

            [subject to an exception  not applicable in this case]."   28

            U.S.C.   1447(d).   The magistrate's order  remanded for lack

            of jurisdiction.  An order remanding for lack of jurisdiction

            is immune from  review, whether erroneous or  not.  Thermtron
                                                                _________

            Prods.,  Inc. v.  Hermansdorfer,  423 U.S.  336, 343  (1976);
            _____________     _____________

            Gravitt  v. Southwestern Bell Tel.  Co., 430 U.S. 723 (1977);
            _______     ___________________________

            Volvo  of  Am.  Corp.  v.  Schwarzer,  429  U.S.  1331,  1332
            _____________________      _________

            (Rehnquist, Circuit Justice 1976).

                 As noted, supra,  at 4-5, the  district court, in  North
                           _____                                    _____

            Jersey Savs. & Loan v. Fidelity & Deposit  Co., 125 F.R.D. at
            ___________________    _______________________

            98, concluded  that a  motion to  remand is  a nondispositive

            matter  in  which  a  magistrate  may  enter  a  final order,

            pursuant to   636(b)(1)(A), which, if timely objected to, the

            district  court  considers  under  a standard  of  review  of

            clearly erroneous or contrary to law.   See also Fed. R. Civ.
                                                    ________

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P. 72(a).   The North  Jersey Savs. &  Loan court  noted that
                            ___________________________

            this provision  for district  court review of  a magistrate's

            final order of remand  is seemingly at odds with    1447(d)'s

            prohibition  of "review[]  on  appeal or  otherwise."   North
                                                                    _____

            Jersey Savs. &  Loan v. Fidelity & Deposit Co., 125 F.R.D. at
            ____________________    ______________________

            98-99.    That  court   found  significant  the  introductory

            language of   636(b)(1)  -"[n]otwithstanding any provision of

            law  to the contrary."3  Id.   It also found significant that
                                     ___

            this language  was enacted after the enactment of the Removal

            Act's prohibition of review of remand orders.  Id.  The North
                                                           ___      _____

            Jersey Savs.  & Loan court concluded  that Congress intended,
            ____________________

            by  this  later-enacted  language,  to  preempt     1447(d)'s

            prohibition of review of remand orders and to permit district

            court review of a magistrate's final order of remand.  Id.
                                                                   ___

                 As with  the question of  the dispositive/nondispositive

            nature  of a  motion to  remand,  we need  not,  and do  not,

            resolve the  relationship between    636(b)(1)(A)'s grant, to

            the district court, of  review of a magistrate's final  order

            of  remand  (assuming   that  a   motion  to   remand  is   a

            nondispositive matter) and    1447(d)'s prohibition of review

            of  orders of  remand.   We conclude that  whether or  not we

            concurred with the reasoning of the North Jersey Savs. & Loan
                                                _________________________

            court, Gordon cannot obtain review in this court.

____________________

            3.  The  provision   for   district  court   review   appears
            immediately thereafter in subsection "(A)" of   636(b)(1).

                                         -7-

Gordon filed  no objections  with the district  court to

            the magistrate's  January 8th order of remand.  If, as in the

            view  of the  magistrate and  district court  below (and  the

            North Jersey Savs. & Loan court), the motion to remand  was a
            _________________________

            nondispositive matter, permitting the  magistrate to enter  a

            final order, Gordon has waived review of that order.

                      Within 10 days after  being served with a
                      copy of  the magistrate's order,  a party
                      may  serve  and  file  objections  to the
                      order;  a party may not thereafter assign
                      as  error a  defect  in the  magistrate's
                      order  to which objection  was not timely
                      made.

            Rule  72(a) (governing  nondispositive matters).   Even  if  

            636(b)(1)(A)   permitted  district   court   review  of   the

            magistrate's  final  order  of  remand,  notwithstanding  the

            language of    1447(d),  Gordon's failure to  file objections

            with the district court  has barred any review he  might have

            had.  Moreover, even if   636(b)(1)(A) permits district court
                                                           ______________

            review   of  the   magistrate's   final  order   of   remand,

            notwithstanding the  language of   1447(d), it does not speak

            to  review  in  this  court.    The  language  of     1447(d)
                            ____

            prohibiting  "review[] on  appeal or  otherwise" of  a remand

            order would, it seems, apply,  nonetheless, to an appeal from

            the district  court's review of the  magistrate's final order

            of remand.

                 On the  other hand, as we have noted, some courts view a

            motion  to  remand   as  a  dispositive  matter  in  which  a

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magistrate   is  restricted   to   proposing   findings   and

            recommendations  for  disposition  by  the   district  court.

            Gordon's  quest for  appellate review  fares no  better under

            this view.  Even  were we to construe the  magistrate's order

            of remand as a recommendation to the district court, Gordon's

            failure to  object to that order/recommendation  bars further

            appellate review.  Scott  v. Schweiker, 702 F.2d 13,  14 (1st
                               _____     _________

            Cir.  1983).    More  to  the  point,  however,     1447(d)'s

            prohibition on review of a remand order dooms Gordon's appeal

            here.

                 Accordingly,  we  dismiss   this  appeal  for   lack  of

            jurisdiction.

                 Appeal dismissed.
                 _________________

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