Wednesday, February 15, 2012

On whether a motion to remand is dispositive

In Deskins v. Consol Energy, Inc., Judge Jones sustained the Defendant's objections to the recommendations of the Magistrate Judge on whether to grant the Plaintiffs' motion to remand the case to state court. It happens sometimes, but rarely - that the District Judge and the Magistrate Judge disagree on the application of the law.

Interestingly, some district courts (but no appeals courts) have held that a remand motion is not a dispositive motion, in the sense that a Magistrate Judge has the power to decide it directly, instead of merely making a report and recommendations. See Peter J. Gallagher, IN SEARCH OF A DISPOSITIVE ANSWER ON WHETHER REMAND IS DISPOSITIVE, Seton Hall Circuit Review, Volume 5, Number 2, Spring 2009, 303. As Mr. Gallagher wrote, "Nearly every district court has treated remand as nondispositive and thus within the scope of this authority, but all four circuit courts that have confronted the issue have deemed remand dispositive and thus beyond the scope of a magistrate's authority. Although seemingly trivial, the difference is significant because district courts review magistrate judges' findings on dispositive motions under a de novo standard, while nondispositive motions receive the less stringent review only for clear error of law."

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