United States District Court, S.D. Indiana, Indianapolis Division
LARRY JOHNSON, CHRISTINE O. JOHNSON, Plaintiffs,
GLOBUS MEDICAL, INC., ANONYMOUS PHYSICIAN (JKC), Defendants.
ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION [DKT. NO. 31]
SARAH EVANS BARKER, District Judge.
On October 16, 2014, the Magistrate Judge recommended that we remand this case to the state court for lack of subject matter jurisdiction. [Dkt. No. 31.] On October 29, 2014, Defendant Globus Medical, Inc. filed its Objection to Report and Recommendation. [Dkt. No. 32.] Plaintiffs filed no response to the Magistrate Judge's Report and Recommendation or the Defendant's objections. For the following reasons, we adopt the Magistrate Judge's Report and Recommendation and order this case remanded to state court.
I. Standard of Review.
With respect to pretrial matters dispositive of a claim or defense, the district court reviews " de novo any part of the magistrate judge's disposition that has been properly objected to." Fed.R.Civ.P. 72(b)(3). Should a party make objections to the Magistrate Judge's Report and Recommendation, such objections must be "specific" and "written." Id. at 72(b)(2). "The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Id. at 72(b)(3).
The federal circuits are divided on their treatment of motions to remand decided by magistrate judges. Some circuits have held that motions to remand are not dispositive of any claim or defense, and thus magistrate judges can rule on those motions absent the parties' consent. Other circuits have determined that remand issues are case-dispositive matters and require a report and recommendation from the magistrate judge prior to disposition. See Rasberry v. Capitol County Mut. Fire Ins. Co., 609 F.Supp.2d 594, 597 (E.D. Tex. 2009) (collecting cases). The issue is a significant one. We review the written objections to a magistrate judge's non-dispositive rulings under a clearly erroneous or contrary to law standard. Fed.R.Civ.P. 72(a). Whereas we review the specific written objections to a magistrate judge's report and recommendation of dispositive pretrial matters de novo. Id. at 72(b).
Although it does not appear that the Seventh Circuit has been afforded the opportunity to consider this issue, the Sixth, Tenth, and Third Circuits have held that because remand orders banish litigants from federal court, they are the equivalent of dispositive actions that must ultimately be determined by a district judge. The Second Circuit concluded:
Because a § 1447(c) remand order "determine[s] the fundamental question of whether a case could proceed in a federal court, " U.S. Healthcare, 159 F.3d at 146, it is indistinguishable from a motion to dismiss the action from federal court based on a lack of subject matter jurisdiction for the purpose of § 636(b)(1)(A). A motion to remand is not a "pretrial matter" under § 636(b)(1)(A), and a magistrate judge presented with such a motion should provide a report and recommendation to the district court that is subject to de novo review under Rule 72.
Williams v. Beemiller, Inc., 527 F.3d 259, 266 (2d Cir. 2008) (citing In re U.S. Healthcare, 159 F.3d 142, 145-46 (3d Cir. 1998) ("While we recognize that after a remand, a case may go forward in the state court, still the order for remand conclusively terminates the matter in the federal court against the will of the party who removed the case.")); see also Albright v. F.D.I.C., 21 F.3d 419, *2 at n.4 (1st Cir. 1994). The Third Circuit noted:
An order of remand simply cannot be characterized as nondispositive as it preclusively determines the important point that there will not be a federal forum available to entertain a particular dispute. In our view, a magistrate judge may not, without the consent of the parties, decide this critical issue at the core of the exercise of federal judicial power.
In re U.S. Healthcare, 159 F.3d at 145.
District courts in the Seventh Circuit have repeatedly held that remand questions are dispositive and reviewed de novo by the district court on a report and recommendation from the magistrate judge. See also Kulley v. Tyson Fresh Meats, Inc., No. 4:13-cv-04092-SLD-JAG, 2014 WL 128074, at *1-2 (C.D. Ill. Jan. 14, 2014) (district judge considering magistrate judge's recommendation on remand question as a "dispositive issue" and thus reviewed de novo ); Antonio v. Wal-Mart, No. 1:07-cv-006-JDT-TAB, 2007 WL 2884371 (S.D. Ind. Sept. 27, 2007) (then district court Judge Tinder adopting Magistrate Judge Baker's report and recommendation on motion to remand after de novo review); Thomas v. HCH Admin. Inc., Case No. 05-1327, 2006 WL 929329 (C.D. Ill. April 10, 2006) (reviewing de novo specific written objections to magistrate judge's report and recommendation related to remand); see contra Jackson Nat. Life Ins. Co. v. Greycliff Partners, Ltd., 960 F.Supp. 186, 188 (E.D. Wis. 1997) ("Because a motion to remand is not dispositive, this court will adopt the magistrate judge's decision unless it is clearly erroneous or contrary to law.").
We concur with the opinions of the Sixth, Tenth, and Third Circuits and the majority of district courts in the Seventh Circuit that hold that remand issues are dispositive because a motion to remand conclusively terminates the matter in the federal court against the will of the party who removed the case. Accordingly, we review the Magistrate Judge's recommendation to remand here under a de novo standard of review.
II. Background and Procedural History.
The Magistrate Judge set forth the basic facts and procedural history of the case, to which no party objected. To briefly summarize, Plaintiffs filed their complaint in Marion Superior Court asserting products liability and medical malpractice claims against Globus Medical, Inc. and Anonymous Physician (JKC). Anonymous Physician's identity was withheld because Indiana's Medical Malpractice Act (MMA) protects the physician's identity until the medical review panel can make a finding regarding the alleged malpractice. See Kho v. Pennington, 875 N.E.2d 208, 209-11 (Ind. 2007); Ind. Code. § 34-18-8-7 ("[A] claimant may commence an action in court for malpractice at the same time the claimant's proposed complaint is being considered by a medical review panel, " but ...