Flam v. Flam

Filing 42

ORDER Taking Matter Under Submission Following Mandate, signed by District Judge Anthony W. Ishii on 7/23/2015. (IT IS HEREBY ORDERED that Plaintiff's 8 Motion to Remand is taken under submission.)(Gaumnitz, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LAURA J. FLAM,

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CASE NO. 1:12-CV-1052 AWI DLB
Plaintiff
ORDER TAKING MATTER UNDER
SUBMISSION FOLLOWING
MANDATE

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v.

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MARSHALL S. FLAM, M.D.,

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Defendant

(Doc. Nos. 8, 40, 41)

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On September 6, 2012, the Magistrate Judge remanded this matter to the Fresno County

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Superior Court following Plaintiff’s motion to remand. See Doc. No. 22. Fourteen days after the

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remand motion had been sent to the Fresno County Superior Court, Defendant filed a motion for

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reconsideration on September 20, 2012. See Doc. No. 26. On October 5, 2012, the Court denied

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reconsideration because the matter had been remanded due to a lack of subject matter jurisdiction

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and the Fresno Superior Court had already received the case back from this Court. See Doc. No.

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30. On October 12, 2012, Defendant appealed the Court’s denial of reconsideration.

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On June 8, 2015, the Ninth Circuit reversed and remanded. See Doc. No. 40. Although

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the Ninth Circuit had not previously addressed a Magistrate Judge’s ability to remand a case, the

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Ninth Circuit followed other circuit courts and concluded that Magistrate Judges cannot remand a

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case. See id. The Ninth Circuit remanded the case for this Court to either rule on the motion to

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remand or to refer the motion to remand to the Magistrate Judge for the purpose of issuing a

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findings and recommendation. See id. On July 1, 2015, the Ninth Circuit issued mandate. See

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Doc. No. 41.

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The Court will follow the Ninth Circuit’s instructions and rule on the motion to remand.

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See Doc. No. 40; see also Hall v. City of Los Angeles, 697 F.3d 1059, 1067 (9th Cir. 2012)

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(discussing the rule of mandate). In ruling on the motion to remand, the Court will

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consider the initial briefing on the motion to remand, as well as the briefing filed with

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Defendant’s request for reconsideration. At this time, the Court intends to decide the

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motion on the papers and without oral argument. See Local Rule 270.

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Accordingly, IT IS HEREBY ORDERED that Plaintiff’s motion to remand (Doc.
No. 8) is taken under submission.

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IT IS SO ORDERED.
Dated: July 23, 2015
SENIOR DISTRICT JUDGE

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