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Birmingham Bar Association Bulletin - Summer 2014

removed case to state court. For a denial of a motion to remand, the procedures vary in important respects depending on whether a claim of fraudulent joinder is involved: • If fraudulent joinder is not at issue, the magistrate judge’s ruling is final subject to review under Rule 72(a). • If fraudulent joinder is claimed, the denial of a motion to remand is effectively a dispositive ruling resulting in dismissal of the fraudulently-joined defendant. The magistrate judge must prepare and file a report and recommendation subject to de novo review by a district judge under § 636(b)(1), and a district judge is selected randomly by special draw solely to determine the motion to remand. A magistrate judge may grant a motion to remand “on any appropriate ground.”10 A magistrate judge’s order remanding a case is effective 30 days after entry “unless stayed by the district judge.”11 A party seeking review of the remand order must file and serve objections under Rule 72(a).12 That party will want to move to stay the remand order pending the district judge’s consideration of its objections. A district judge will be selected randomly by special draw solely to review “the particular order or report and recommendation … on the motion to remand.”13 The district judge randomly assigned to review the remand order may avoid ruling on the objections to it by allowing the 30 days to pass without staying the remand order, at which point the remand order will become effective and the case will return to state court. Co n s i s t e n t with § 636(b) (1)(B), the Referral Order Dispositive Motions provides that “the magistrate judge shall prepare a report and recommendation on all case-dispositive motions and other motions specified in § 636(b)(1)(A).”14 In civil cases, these include, inter alia: • motions for judgment on the pleadings under Rule 12(c); • motions for summary judgment under Rule 56; • motions “to dismiss or to permit maintenance of a class action” under Rule 23; • motions to dismiss for failure to state a claim upon which relief can be granted under Rule 12(b)(6); and • motions “to involuntarily dismiss an action.”15 Other motions to dismiss under Rule 12, e.g., for lack of personal jurisdiction or improper venue, presumably fall in this last catch-all category and require the magistrate judge to issue a report and recommendation. 16 The Referral Order specifies that “the magistrate judge shall conduct such proceedings and enter such orders as are necessary to bring the case-dispositive motion under submission.” This includes any evidentiary hearings, if necessary. Once such proceedings have concluded and the motion has been taken under submission, the parties are again given notice of the opportunity to consent to exercising full jurisdiction by the magistrate judge under § 636(c). If any party does not consent at this point, then the magistrate judge will prepare a report and recommendation concerning the potential dispositive motion, and a district judge will be randomly assigned from a special draw to decide it de novo as provided in § 636(b)(1). Also, if all discovery has been completed and no other pretrial matters remain to be performed, the magistrate judge may direct Magistrate Referrals the clerk to reassign the case to a randomly drawn district judge for all further proceedings in the case. The procedures in Rule 72(b)(2) for objecting (within 14 days) to the magistrate judge’s proposed findings and recommendations and responding (within 14 days) to the opposing party’s objections also apply. Conclusion The Referral Order is designed to give the Court’s magistrate judges as much authority as possible in one-sixth of most civil cases, regardless of whether the parties consent to exercising full jurisdiction by the magistrate judge. The blind draw of district judges for review of magistrate rulings with the likelihood that the same district judge will not be assigned in successive draws on the same case further ensures that the magistrate judge assigned to a case under the Referral Order maintains the most familiarity with the case. The blind draw also reduces the incidence of judge shopping by eliminating the assurance that the same district judge will review every ruling by the magistrate judge. Finally, the objection process under Rule 72 allows only for a few matters actually to be decided by any district judge. For most civil cases assigned to a magistrate judge under the Referral Order, the assigned magistrate judge will decide practically all pretrial matters. G ENDNOTES 1. Contributor Wes Gilchrist is on the Birmingham Bar Association’s Civil Courts Procedures Committee. Committee members Joshua Thompson and Rhonda Chambers assisted with this article. 2. The Referral Order is available on the Court’s website at www.alnd.uscourts.gov. 3. 28 U.S.C. § 631, et seq. 4. A case assigned to a district judge, or a specific matter within such a case, may still be referred to a magistrate judge by the assigned Birmingham Bar Bulletin/ Summer 2014 23


Birmingham Bar Association Bulletin - Summer 2014
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