judge's decision-making authority by providing that, "Congress intends that the magistrate shall have the power to make a determination of any pretrial matter (except the enumerated dispositive motions)." H. Rep. No. 1609, 94th Cong., 2d Sess., reprinted in 1976 U.S.C.C.A.N. 6162, 6170.
Accordingly, Magistrate Judge Kugler's authority to enter a final order on a motion to remand depends upon whether a motion to remand is a "dispositive" or a "non-dispositive" motion. Although no federal appellate court has squarely addressed this issue, the vast majority of the district courts, within this district and elsewhere, that have confronted this issue, have held that a motion to remand is "non-dispositive," and therefore, can be determined by a magistrate judge by final order in accordance with 28 U.S.C. § 636(b)(1)(A). See, e.g., Campbell v. International Business Machines, 912 F. Supp. 116 (D.N.J. 1996)(Lifland, J.); North Jersey Sav. & Loan Ass'n v. Fidelity & Deposit Co. of Maryland, 125 F.R.D. 96 (D.N.J. 1988) (Wolin, J.); Tinkham v. Mass Mutual Life, No. 96-2058 (D.N.J. Sept. 25, 1996) (Wolin, J.); Weinberg v. Sprint Corp., No. 96-354 (D.N.J. May 23, 1996) (Wolin, J.); Hitachi Cable America, Inc. v. Wines, No. 85-4265, 1986 WL 2135 (D.N.J. Feb. 14, 1986) (Sarokin, J.); MacLeod v. Dalkon Shield Claimants Trust, 886 F. Supp. 16 (D. Or. 1995); Vaquillas Ranch Co., Ltd. v. Texaco Exploration and Production, Inc., 844 F. Supp. 1156 (S.D. Tex. 1994); Banbury v. Omnitrition Int'l, Inc., 818 F. Supp. 276, 279 (D. Minn. 1993). But see Giangola v. Walt Disney World Co., 753 F. Supp. 148 (D.N.J. 1990) (Debevoise, J.); Long v. Lockheed Missiles and Space Co., Inc., 783 F. Supp. 249, 250 (D.S.C. 1992).
The courts which have held that a remand order is a "non-dispositive" pretrial order have noted that remand orders are not among those orders specifically enumerated in 28 U.S.C. § 636(b)(1)(A) that a magistrate judge is without the authority to issue.
See, e.g., Campbell, 912 F. Supp. at 119; North Jersey Sav. & Loan, 125 F.R.D. at 98. In enacting the Magistrates Act, Congress's stated intention was to empower a magistrate judge to issue a final order in any pretrial matter "except the enumerated dispositive motions." H. Rep. No. 1609, 94th Cong., 2d Sess., reprinted in 1976 U.S.C.C.A.N. at 6170. Accordingly, I find that the omission of a motion to remand from § 636(b)(1)(A) is of some relevance to the resolution of the question whether a remand order is non-dispositive.
Aside from the exclusion of a remand order from § 636(b)(1)(A)'s list of dispositive motions, the language contained in Fed. R. Civ. P. 72(a) is also illuminating to the proper characterization of a remand order. Rule 72(a) provides that a magistrate judge may enter any final order which is "not dispositive of a claim or defense of a party." It is clear that a remand order is not an order which disposes of any claim or defense of a party. A remand order "merely transfer[s] the action to a different forum rather than finally resolving the substantive rights and obligations of the parties." Campbell, 912 F. Supp. at 119. Indeed, a "motion to remand does not reach the merits of the underlying dispute but instead decides only the question of whether removal to the federal court was proper." City of Jackson, Mississippi v. Lakeland Lounge of Jackson, Inc., 147 F.R.D. 122, 124 (S.D. Miss. 1993). After the disposition of a motion to remand, "the parties remain free to litigate the merits of the case . . . whether in state of federal court." Id.
For these reasons, I conclude that a remand order is a "non-dispositive" order. Accordingly, pursuant to § 636(b)(1)(A), I find that Magistrate Judge Kugler had the authority to issue a final order resolving Plaintiffs' motion to remand.
B. This Court's Ability to Review Magistrate Judge Kugler's Remand Order
Having concluded that Magistrate Judge Kugler acted within the scope of his authority in issuing the final order to remand, I must now determine whether this Court has the ability to review his order. Ordinarily, "a district court reviews the non-dispositive order of a magistrate judge for legal error or clearly erroneous findings of fact." Campbell, 912 F. Supp. at 119. However, as observed by the Court in Campbell, a "review of a remand order presents an unusual wrinkle since Congress has decided that 'an order remanding a case to the State court . . . is not reviewable on appeal or otherwise,' with certain exceptions not relevant to this discussion." Id. (citing 28 U.S.C. § 1447
). Indeed, "where the remand decision was predicated on the perceived lack of original jurisdiction in the federal court, the Supreme Court and the Third Circuit have interpreted Section 1447 to bar appellate review of even the most erroneous remand orders." Id. (citing Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336, 46 L. Ed. 2d 542, 96 S. Ct. 584 (1976); Korea Exch. Bank v. Trackwise Sales Corp., 66 F.3d 46 (3d Cir. 1995); Trans Penn Wax Corp. v. McCandless, 50 F.3d 217 (3d Cir. 1995)).
Thus, when read in isolation, § 1447 appears to divest this Court of the power to review Magistrate Judge Kugler's remand order since his order was, in fact, based on his "perceived lack of original jurisdiction in the federal court." Id. See DeCastro, 935 F. Supp. 541, 1996 WL 479217 at *1. The Magistrates Act, as amended in 1976, however, provides for the appeal of non-dispositive orders of a magistrate judge, "notwithstanding any provision of law to the contrary." 28 U.S.C. § 636(b)(1).
Recognizing this apparent inconsistency between the language of the Removal Act and the Magistrates Act, in North Jersey Sav. & Loan Ass'n, 125 F.R.D. at 99, the Court sought to harmonize these two provisions. In so doing, the Court first explained that the current version of § 636(b) was adopted by Congress in an amendment to the Magistrates Act in 1976, and the relevant provision of the Removal Act, § 1447(d), was enacted in 1949. Id. at 98 n.1. The court then stated that:
Congress knew of the Removal Act's prohibition on review when it added this broadly pre-emptive language [in the Magistrates Act]. Since Congress apparently chose not to exempt the Removal Act from the review provision of § 636(b)(1)(A), this Court concludes that a magistrate's remand order under § 1447 is subject to review by the district court.