LAURA J. FLAM, AKA Mrs. Gale, Plaintiff-Appellee,
MARSHALL S. FLAM, M.D., Defendant-Appellant
Argued and Submitted, San Francisco, California January 14, 2015.
Appeal from the United States District Court for the Eastern District of California. D.C. No.1:12-cv-01052-AWI-DLB. Anthony W. Ishii, Senior District Judge, Presiding.
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. William S. Ryden, Jaffe and Clemens, Beverly Hills, California, argued the cause on behalf of the plaintiff-appellant Ms. Laura Flam. With him on the brief was Mark E. Mahler, Jaffe and Clemens, Beverly Hills, California.
Wiley R. Driskill, Campagne, Campagne, & Lerner, Fresno, California, argued the cause on behalf of the defendant-appellant Dr. Marshall Flam. With him on the briefs was Thomas E. Campagne, Campagne, Campagne, & Lerner, Fresno California.
William S. Ryden, Jaffe and Clemens, Beverly Hills, California, argued the cause on behalf of the plaintiffappellant Ms. Laura Flam. With him on the brief was Mark E. Mahler, Jaffe and Clemens, Beverly Hills, California.
Before: Diarmuid F. O'Scannlain and Richard R. Clifton, Circuit Judges and Jed S. Rakoff,[*] Senior District Judge. Opinion by Judge O'Scannlain.
Diarmuid F. O'Scannlain, Circuit Judge:
We must decide whether a magistrate judge is empowered to issue an order remanding a removed case to state court, and whether such an order, once ...