United States District Court, D. South Carolina, Columbia Division
REPORT AND RECOMMENDATION
V. Hodges United States Magistrate Judge.
Borha (“Plaintiff”) filed this action in the
Court of Common Pleas for Orangeburg County against Sharanda
Sumter, Smanthia Jones, and Amazon.com.dedec, LLC
“Defendants”). Defendants removed the case to
this court on March 6, 2018, on the basis of federal question
jurisdiction pursuant to 28 U.S.C. § 1331. [ECF No. 1].
This matter comes before the court on Plaintiff's motion
to remand. [ECF No. 5]. The motion having been briefed [ECF
No. 7], it is ripe for disposition.
matter is before the undersigned pursuant to 28 U.S.C. §
636(b) and Local Civ. Rule 73.02(B)(2)(g) (D.S.C.). For the
following reasons, the undersigned recommends the district
judge grant Plaintiff's motion to remand.
Factual and Procedural Background
January 9, 2017, Plaintiff filed a summons and complaint
asserting state law claims against Defendants that was
assigned Case No. 2017-CP-38-00031 (“Borha
I”). [ECF No. 1-1]. Plaintiff served Defendants on
February 6, 2017.
6, 2017, Plaintiff filed a second complaint against Amazon,
also in the Orangeburg County Court of Common Pleas that was
assigned Case No. 2017-CP-38-00750 (“Borha
II”). [ECF No. 1-18]. Borha II asserted
federal employment discrimination claims. Id.
Counsel for Amazon accepted service of the Borha II
complaint on June 15, 2017. On July 11, 2017, Defendant
Amazon filed in Borha II a Motion to Dismiss or, in
the alternative, to consolidate Borha II with
Borha I. [ECF No. 1-20].
February 7, 2018, the state court heard arguments on
outstanding motions in both Borha I and Borha
II, including arguments on Defendants' motion to
consolidate Borha II with Borha I. On
February 27, 2018, the state court issued an order granting
Defendants' motion to consolidate (“Consolidation
Order”) and ordered that the case number and caption in
Borha II no longer be used. [ECF No. 1-27].
Defendants removed the consolidated action to this court on
March 6, 2018. [ECF No. 1]. Defendants argue that removal is
proper because they removed the case within 30 days of
receipt of the Consolidation Order.
Magistrate Judge's Authority to Remand
motion to remand has been referred to the undersigned for
disposition pursuant to 28 U.S.C. § 636. A motion to
remand does not explicitly fall within any of the dispositive
motions set forth in 28 U.S.C. § 636. This omission has
led to a split of authority as to whether a United States
Magistrate Judge has the authority to remand a matter to
state court. While some courts have held that remand motions
are nondispositive and orders of remand can be issued by a
Magistrate Judge in a non-consent case, the law in the Fourth
Circuit remains unclear whether an order or a report and
recommendation should be entered. See, e.g., Jonas v.
Unisun Ins. Co., No. 00-1217, 2000 WL 1350648, *1 (4th
Cir. Sept. 20, 2000) (noting that the Fourth Circuit
“has not addressed whether a magistrate judge may issue
an order of remand (as opposed to issuing a report and
recommendation for the district court's review)”).
At least one district court in this district has addressed
this issue in a published opinion and held that a Magistrate
Judge did not have such authority. See Long v. Lockheed
Missiles & Space Co., Inc., 783 F.Supp. 249, 250
(D.S.C. 1992) (“[A] remand order is the equivalent of a
dismissal. The Magistrate's Order thus sought to effect
an ‘involuntary dismissal' of the action.”)
(quoting Giangola v. Walt Disney World Co., 753
F.Supp. 148, 152 (D.N.J. 1990)); see also Mortg. Elec.
Registration Sys., Inc. v. Hunt, 6:07-1763-HMH (D.S.C.
July 30, 2007) (unpublished opinion collecting cases and
finding report and recommendation appropriate when
considering motion to remand).
the United States Supreme Court has not addressed the issue
directly, it has suggested that a remand motion is
functionally indistinguishable from a dispositive motion
listed in 28 U.S.C. § 636(b)(1)(A). See Quackenbush
v. Allstate Ins. Co., 517 U.S. 706, 714 (1996)
(“No less than an order staying a federal court action
pending adjudication of the dispute in state court, [an order
of remand] puts the litigants in this case effectively out of
court, and its effect is precisely to surrender jurisdiction
of a federal suit to a state court.”) (internal
quotation and citation omitted). The federal circuit courts
addressing this matter have determined in published opinions
that remand motions are dispositive. See Williams v.
Beemiller, Inc., 527 F.3d 259, 264-66 (2d Cir. 2008);
Vogel v. U.S. Office Prods. Co., 258 F.3d 509,
514-17 (6th Cir. 2001); First Union Mortg. Corp. v.
Smith, 229 F.3d 992, 994-97 (10th Cir. 2000); and In
re U.S. Healthcare, 159 F.3d 142, 145-46 (3d Cir. 1998).
practical impact on the parties of this seemingly-academic
dispute is the applicable standard of review in an appeal of
the Magistrate Judge's decision on the motion to remand.
If the motion to remand is considered nondispositive, the
more deferential standard of “clearly erroneous or
contrary to law” found in 28 U.S.C. § 636(b)(1)(A)
applies to an appeal of the Magistrate Judge's order of
remand. If the motion to remand is considered dispositive,
the Magistrate Judge should enter a report and recommendation
under 28 U.S.C. § 636(b)(1)(B), pursuant to which
objections are considered on a de novo standard of
review under Fed.R.Civ.P. 72.
light of the unsettled state of the law within this district
as to whether motions to remand are considered dispositive,
out of an abundance of caution, a report and recommendation,
instead of an order, is being entered. This route preserves
the prerogative of the District Judge to whom this case is
assigned, as well as any potentially aggrieved ...