
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                                         -3-            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                                         -4-            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.                                                    ________                                         -6-            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                                         -8-            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.                 _________________                                         -9-
