LAURA J. FLAM, AKA Mrs. Gale v. Marshall S. Flam, M.d.

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LAURA J. FLAM, AKA Mrs. Gale,
Plaintiff-Appellee,
v.
MARSHALL S. FLAM, M.D.,
Defendant-Appellant.
No. 12-17285
D.C. No.
1:12-cv-01052-
AWI-DLB
OPINION
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, Senior District Judge, Presiding
Argued and Submitted
January 14, 2015—San Francisco California
Filed June 8, 2015
Before: Diarmuid F. O’Scannlain and Richard R. Clifton,
Circuit Judges and Jed S. Rakoff,* Senior District Judge.
Opinion by Judge O’Scannlain
* The Honorable Jed S. Rakoff, Senior District Judge for the U.S.
District Court for the Southern District of New York, sitting by
designation.

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FLAM V. FLAM 2
SUMMARY**
Magistrate Judges
The panel reversed the district court’s judgment
remanding a removed case to state court following a
magistrate judge’s grant of a motion for remand.
The panel held that a remand order made under 28 U.S.C.
§ 1447(c) is not within the power of a magistrate judge to
issue under 28 U.S.C. § 636. Following the functional
approach adopted by the Third, Sixth, and Tenth Circuits, the
panel held that a motion to remand is a dispositive motion
because remand orders put litigants out of federal court.
Thus, a magistrate judge presented with a motion for remand
should provide a report and recommendation to the district
court. The panel held that 28 U.S.C. § 1447(d) did not bar
review of the magistrate judge’s order.
The panel remanded the case to the district court with
instructions to consider the motion to remand in the first
instance or to request that the magistrate judge prepare a
report and recommendation regarding the motion.
COUNSEL
Wiley R. Driskill, Campagne, Campagne, & Lerner, Fresno,
California, argued the cause on behalf of the defendant-
appellant Dr. Marshall Flam. With him on the briefs was
** This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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FLAM V. FLAM 3
Thomas E. Campagne, Campagne, Campagne, & Lerner,
Fresno California.
William S. Ryden, Jaffe and Clemens, Beverly Hills,
California, argued the cause on behalf of the plaintiff-
appellant Ms. Laura Flam. With him on the brief was Mark
E. Mahler, Jaffe and Clemens, Beverly Hills, California.
OPINION
O’SCANNLAIN, Circuit Judge:
We must decide whether a magistrate judge is empowered
to issue an order remanding a removed case to state court, and
whether such an order, once made, may be reviewed by the
district court.
I
This case began with a dispute related to the division of
pension assets after a divorce. Laura Flam filed suit in Fresno
County Superior Court in June 2012, alleging that Dr.
Marshall Flam failed to perform certain duties related to her
portion of a pension account. The account was held jointly by
the two before their divorce but, while Ms. Flam received a
separate account as part of the divorce proceedings, Dr. Flam
remained the pension fund’s trustee. Ms. Flam alleges that
Dr. Flam failed to provide her with certain account statements
required by law, and also contends that he breached his
spousal fiduciary duties by failing to inform her when he
transferred the pension account’s assets from one brokerage
house to another in 2007.

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FLAM V. FLAM 4
Dr. Flam timely removed the case to the Eastern District
of California based on federal question jurisdiction, arguing
that Ms. Flam’s lawsuit is governed by the Employee
Retirement Income Security Act, 29 U.S.C. § 1001 et. seq.
(“ERISA”). Ms. Flam subsequently moved to remand the
case to state court. The magistrate judge assigned to the case
then issued an order remanding the case to state court. Dr.
Flam timely filed a motion for reconsideration of the removal
order by the district court, as allowed by Eastern District of
California Local Rules. E.D. Cal. Local Rule 303.
The district court refused to entertain the motion for
reconsideration, however. The court reasoned that 28 U.S.C.
§ 1447(d), which states in part that “[a]n order remanding a
case to the State court from which it was removed is not
reviewable on appeal or otherwise,” barred any review of the
magistrate judge’s order. It explained that 28 U.S.C.
§ 1447(d) barred review because “the Magistrate Judge’s
remand order was issued, . . . the case was closed, . . . [and]
certification was sent to the Fresno County Superior Court.”
Dr. Flam appeals from the district court’s denial of
reconsideration.
II
We have jurisdiction to review the district court’s order
denying reconsideration because that decision is final under
28 U.S.C. § 1291. See Harmston v. City & County of San
Francisco, 627 F.3d 1273, 1278 (9th Cir. 2010). We do not
review the magistrate judge’s remand order itself, but instead
review the merits of the district court’s legal determination
that the magistrate’s order was not reviewable.

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FLAM V. FLAM 5
III
In order to decide the questions presented by this case, we
must resolve two issues. First, we must determine whether a
remand order made under 28 U.S.C. § 1447(c) is within the
power of a magistrate judge to issue under 28 U.S.C. § 636.
Second, we must determine whether 28 U.S.C. § 1447(d) bars
review of a magistrate court’s remand order even if such an
order is beyond the power of a magistrate judge to issue.
Because the answer to the first question informs the answer
to the second, we address each in turn.
A
1
“The Federal Magistrates Act, 28 U.S.C. §§ 631–39,
governs the jurisdiction and authority of federal magistrates.”
United States v. Reyna-Tapia, 328 F.3d 1114, 1118 (9th Cir.
2003) (en banc). The Act “provides that certain matters (for
example, non-dispositive pretrial matters) may be referred to
a magistrate judge for decision, while certain other matters
(such as case-dispositive motions [and] petitions for writs of
habeas corpus) may be referred only for evidentiary hearing,
proposed findings, and recommendations.” Id. (footnotes
omitted).
The textual basis for the distinction between dispositive
and non-dispositive motions is found in 28 U.S.C.
§ 636(b)(1). Section 636(b)(1)(A) states that a magistrate
judge may “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,

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FLAM V. FLAM 6
to suppress evidence in a criminal case, to dismiss 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.” 28 U.S.C. § 636(b)(1)(A). In
turn, 28 U.S.C. § 636(b)(1)(B) provides that “a judge may
also designate a magistrate judge” to submit “findings of fact
and recommendations for the disposition” of any items
expressly excepted from the magistrate’s authority by
28 U.S.C. § 636(b)(1)(A). The matters listed in 28 U.S.C.
§ 636(b)(1)(A) are dispositive while, in general, other matters
are non-dispositive. See Fed. R. Civ. P. 72; see also
12 Charles Alan Wright et. al., Federal Practice & Procedure
§ 3068.2 (2d ed. 2015).
Though the list contained in 28 U.S.C. § 636(b)(1)(A)
appears to be exhaustive—after all, the statute empowers a
magistrate judge to “hear and determine” any pretrial matter
“except” those listed—the Supreme Court has identified some
judicial functions as dispositive notwithstanding the fact that
they do not appear in the list. See, e.g., Gomez v. United
States, 490 U.S. 858, 873–74 (1989) (holding that jury
selection is more akin to a dispositive matter and so could not
be conducted by a magistrate). To determine whether a
motion is dispositive, we have adopted a functional approach
that “look[s] to the effect of the motion, in order to determine
whether it is properly characterized as ‘dispositive or non-
dispositive of a claim or defense of a party.’” United States v.
Rivera-Guerrero, 377 F.3d 1064, 1068 (9th Cir. 2004)
(quoting Maisonville v. F2 America, Inc., 902 F.2d 746, 747
(9th Cir. 1990)); see also S.E.C. v. CMKM Diamonds, Inc.,
729 F.3d 1248, 1260 (9th Cir. 2013) ((“[W]here the denial of
a motion to stay is effectively a denial of the ultimate relief
sought, such a motion is considered dispositive, and a

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FLAM V. FLAM 7
magistrate judge lacks the authority to ‘determine’ the
matter.” (citation omitted)).
Other courts of appeals have considered whether a
remand motion is dispositive under 28 U.S.C. § 636(b)(1)(A)
and have adopted a similar approach. For example, the Sixth
Circuit engaged in a “functional analysis of the [remand]
motion’s potential effect on litigation.” Vogel v. U.S. Office
Products Co., 258 F.3d 509, 514–15 (6th Cir. 2001).
Similarly, the Second Circuit explained that it was following
the approach adopted by the Third, Sixth, and Tenth Circuits
by “analyz[ing] the practical effect of the challenged action
on the instant litigation” to determine whether a motion is
dispositive. Williams v. Beemiller, Inc., 527 F.3d 259, 265 (2d
Cir. 2008). We employ the functional approach required by
our precedent and adopted by our sister circuits.
2
Each of our sister circuits to consider the question has
held that a motion to remand is a dispositive one, and
therefore concluded that a remand order is beyond the power
of a magistrate judge to issue. Williams, 527 F.3d at 266;
Vogel, 258 F.3d at 517; First Union Mortg. Corp. v. Smith,
229 F.3d 992, 996 (10th Cir. 2000); In re U.S. Healthcare,
159 F.3d 142, 146 (3d Cir. 1998). The essential reasoning of
those cases is that because such a remand order is “dispositive
insofar as proceedings in the federal court are concerned,” a
motion to remand is a dispositive order under 28 U.S.C.
§ 636(b)(1)(A). In re U.S. Healthcare, 159 F.3d at 145. Since
such an order “preclusively determines the important point
that there will not be a federal forum available to entertain a
particular dispute,” these courts have reasoned that a
magistrate judge lacks the power to issue it. Id.

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FLAM V. FLAM 8
We have previously held that remand orders possess
“important elements of finality, at least with respect to federal
court proceedings, because [they] put the parties ‘effectively
out of federal court.’” Harmston, 627 F.3d at 1278–79
(emphasis in original) (quoting Cal. Dept. of Water Res. v.
Powerex Corp., 533 F.3d 1087, 1094 (9th Cir. 2008)). Our
recognition that remand orders put litigants out of federal
court accords with other courts of appeals’ observations that
the effect of a remand order is to end all federal proceedings.
We therefore agree with our sister circuits. Because a
28 U.S.C. § 1447(c) remand order is dispositive of all federal
proceedings in a case, we hold that a motion to remand is
properly characterized as a dispositive motion under
28 U.S.C. § 636(b)(1)(A), meaning that a remand order
cannot be issued by a magistrate judge. Thus, a magistrate
judge presented with a motion for remand “should provide a
report and recommendation to the district court that is subject
to de novo review . . . .” Williams, 527 F.3d at 266.
B
Yet, even if a remand order is beyond the power of a
magistrate to issue, Dr. Flam is not entitled to the relief he
seeks if 28 U.S.C. § 1447(d) bars review of the magistrate
judge’s order. Ms. Flam contends that the district court
correctly decided that it does just that.
In relevant part, 28 U.S.C. § 1447(d) states that “[a]n
order remanding a case to the State court from which it was

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FLAM V. FLAM 9
removed is not reviewable on appeal or otherwise . . . .”1
While we have read this statute broadly to “preclude not only
appellate review but also reconsideration by the district
court,” Seedman v. U.S. District Court for the Cent. District
of Cal., 837 F.2d 413, 414 (9th Cir. 1988), we have also
recognized that the rule is not without exceptions. For
example, in Seedman, we explained that the Supreme Court
had limited the scope of the general rule established by
section 1447(d). Id. More recently, we have recognized that
“[a]lthough [the language of section 1447(d)] appears
comprehensive, the Supreme Court has explained that the
provision does not prohibit review of all types of remands.”
Powerex, 533 F.3d at 1091.
Most relevant here, in Thermtron Products, Inc. v.
Hermansdorfer, the Court held that “[s]ection 1447(d) is not
dispositive of the reviewability of remand orders in and of
itself” because it and “§ 1447(c) must be construed together
. . . .” 423 U.S. 336, 345 (1976), superseded by statute on
other grounds by 28 U.S.C. § 1447(c).2 Thus, the Court
1 The statute goes on to except cases “removed pursuant to section 1442
[and] 1443” and states that such cases “shall be reviewable by appeal or
otherwise.” Section 1442 refers to suits against federal officers or
agencies, and section 1443 refers to civil rights cases. See 28 U.S.C.
§§ 1442–1443. Neither exception is implicated in this case.
2 Section 1447(c) states that “[a] motion to remand [a] case on the basis
of any defect other than lack of subject matter jurisdiction must be made
within 30 days after the filing of the notice of removal” but that a remand
based on lack of subject matter jurisdiction may be made at any time.
28 U.S.C. § 1447(c). Though Congress has amended section 1447(c)
several times since Thermtron, the Supreme Court has assumed that those
amendments are “immaterial to Thermtron’s gloss on § 1447(d).”
Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224, 230 (2007).

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FLAM V. FLAM 10
explained, “only remand orders issued under § 1447(c) and
invoking the grounds specified therein that removal was
improvident and without jurisdiction are immune from review
under § 1447(d).” Id. at 346. For our part, we have interpreted
the Court’s guidance to mean that where a “court lacked
authority to remand under section 1447(c), section 1447(d)
would not preclude review.” Kelton Arms Condo. Owners
Ass’n, Inc. v. Homestead Ins. Co., 346 F.3d 1190, 1191 (9th
Cir. 2003).
Three of the four courts of appeals to consider whether a
magistrate judge can issue a remand order have also
considered whether 28 U.S.C. § 1447(d) bars review of a
magistrate judge’s remand order, and each has concluded that
it does not.3 The Third Circuit reasoned that it seemed
“evident that if an order of a district judge remanding a case
is not insulated from review unless issued for a reason set
forth in section 1447(c) . . . then an order of a magistrate
judge that could not be issued pursuant to section 1447(c)
because of the magistrate judge’s lack of authority to issue
it[] is not insulated from review by section 1447(d).” In re
U.S. Healthcare, 159 F.3d at 146. The Second and Sixth
Circuits have also adopted that approach. See Williams,
527 F.3d at 262–64; Vogel, 258 F.3d at 518–19.
Like our sister circuits, we have already concluded that a
magistrate judge cannot properly issue a remand order under
We have done the same. See, e.g., Atlantic Nat’l. Trust LLC v. Mt. Hawley
Ins. Co., 621 F.3d 931, 935 (9th Cir. 2010).
3 In the other case, First Union Mortg. Corp. v. Smith, 229 F.3d 992, 994
(10th Cir. 2000), the court had no need to confront this question because
the case involved one of 28 U.S.C. § 1447(d)’s exceptions.

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FLAM V. FLAM 11
28 U.S.C. § 636(b)(1)(A), and thus the magistrate judge in
this case lacked the authority to remand the case to state
court. See supra Part III.A.2. Because the magistrate lacked
the authority to issue a remand order under section 1447(c),
section 1447(d) poses no bar to review under our precedent.
Kelton Arms, 346 F.3d at 1191; see also Powerex, 533 F.3d
at 1091 (“‘[O]nly remands based on grounds specified in
§ 1447(c) are immune from review under § 1447(d).’”
(quoting Things Remembered, Inc. v. Petrarca, 516 U.S. 124,
127 (1995))). The district court therefore erred when it
concluded that it could not review the magistrate judge’s
remand order.
IV
The judgment of the district court is REVERSED. The
case is REMANDED to the district court with instructions to
consider Ms. Flam’s motion to remand in the first instance or
to request that the magistrate judge prepare a report and
recommendation regarding that motion.

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