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DECASTRO v. AWACS

October 10, 1996

WAYNE DECASTRO, PAUL WEISS and JOHN SOLANO, individually and on behalf of all others similarly situated, Plaintiffs,
v.
AWACS, INC., d/b/a COMCAST METROPHONE, Defendant.



The opinion of the court was delivered by: ORLOFSKY

 ORLOFSKY, District Judge:

 This matter is before this Court on Defendant's Notice of Appeal, filed pursuant to Fed. R. Civ. P. 72(a), *fn1" from Magistrate Judge Kugler's Order and Decision, dated August 2, 1996, remanding the case to the Superior Court of New Jersey, Law Division, Camden County. DeCastro v. AWACS, Inc., 935 F. Supp. 541, 1996 WL 479217 (D.N.J. 1996).

 Defendant's Notice of Appeal raises two threshold issues which must be addressed by this Court prior to its ruling on the merits of the appeal. These threshold issues are: (1) whether a magistrate judge possesses the legal authority to issue a final order remanding to state court a case removed to this Court; and (2) if so, whether the Court Clerk's mailing of the certified copy of a magistrate judge's order to remand to the state court divests a federal district court of jurisdiction to review the magistrate judge's order to remand.

 For the reasons that follow, I conclude that a magistrate judge may order a remand to state court of a case removed to this Court and that the Clerk's mailing of the certified copy of the magistrate judge's order of remand to the state court deprives this Court of jurisdiction to review the remand order. Accordingly, Defendant's Notice of Appeal will be dismissed.

 I. Facts and Procedural History

 On February 23, 1996, Plaintiffs, Wayne DeCastro, Paul Weiss and John Solano, individually and on behalf of all others similarly situated, filed a class action complaint in the Superior Court of New Jersey, Law Division, Camden County, against Defendant, AWACS, Inc., d/b/a/ Comcast Metrophone ("Comcast"), alleging consumer fraud and other state law claims based upon Comcast's alleged failure to disclose to its cellular telephone customers certain billing practices. *fn2"

 On March 25, 1996, Comcast removed the action to this Court, claiming that subject matter jurisdiction was proper pursuant to 28 U.S.C. § 1332, based upon diversity of citizenship and alleged damages in excess of fifty thousand dollars, exclusive of interest and costs, and alternatively, pursuant to 28 U.S.C. § 1331, alleging that the action arose under federal law.

 On May 9, 1996, Plaintiffs filed a motion to remand the case to the state court, claiming that this Court lacked subject matter jurisdiction. As it is this Judge's practice to refer all "discovery and non-dispositive" motions, including motions to remand, to the designated magistrate judge for disposition, Plaintiffs' motion to remand was referred to Magistrate Judge Kugler. *fn3" By order and opinion, dated August 2, 1996, Magistrate Judge Kugler granted the Plaintiffs' motion to remand, finding that no basis for federal jurisdiction existed. See DeCastro v. AWACS, Inc., 935 F. Supp. 541, 1996 WL 479217 (D.N.J. 1996). *fn4" The order to remand the action was entered on the docket by the Clerk of this Court on August 2, 1996. The Clerk of this Court returned the action to the New Jersey Superior Court on August 6, 1996, by transmitting a certified copy of the order to remand to the Clerk of the Superior Court, Law Division, Camden County.

 On August 16, 1996, Defendant filed its Notice of Appeal, requesting that this Court vacate or reverse Magistrate Judge Kugler's August 2, 1996, Order. *fn5"

 II. Discussion

 A. Authority of Magistrate Judge to Issue Remand Order

 The Magistrates Act provides in relevant part that:

 
a judge may designate a magistrate to hear and determine any pretrial matter pending before the court, except a motion for injunctive relief, for judgment on the pleadings, for summary judgment, to dismiss or quash an indictment or information made by the defendant or to permit maintenance of a class action, to dismiss for failure to state a claim upon which relief can be granted, and to involuntarily dismiss an action. A judge of the court may reconsider any pretrial matter ...

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