Gonzales v. Allstate Vehicle and Property Insurance Company et al

Filing 25

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 21 Report and Recommendations, 16 Motion to Sever and Abate filed by Allstate Vehicle and Property Insurance Company. Signed by Judge Robert Pitman. (tb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
WACO DIVISION
DAVID GONZALES,
Plaintiff,
v.
ALLSTATE VEHICLE AND PROPERTY
INSURANCE CO. and
CONNIE FRISBEE,
Defendants.

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6:17-CV-58-RP-JCM

ORDER
On June 30, 2017, Defendant Allstate Vehicle and Property Insurance Company (“Allstate”)
filed a Motion to Sever and Abate. (Dkt. 16). Plaintiff timely filed his response. (Dkt. 17).
This case was referred to United States Magistrate Judge Jeffrey C. Manske for a Report and
Recommendation on the merits pursuant to 28 U.S.C. § 636(b), Rule 72 of the Federal Rules of Civil
Procedure, and Rule 1(d) of Appendix C of the Local Rules of the United States District Court for
the Western District of Texas. Judge Manske filed his Report and Recommendation on Defendant’s
motion on September 14, 2017. (Dkt. 21). Judge Manske recommended that Defendant’s motion be
denied. Defendant filed no objections.
For nondispositive pretrial matters referred to a magistrate judge, a district court may review
the magistrate judge’s findings and recommendations only to determine whether they are clearly
erroneous or contrary to law. 28 U.S.C. § 636(b)(1)(A). An order is clearly erroneous if the court “is
left with the definite and firm conviction that a mistake has been committed.” Alphonse v. Arch Bay
Holdings, L.L.C., 618 F. App’x 765, 768 (5th Cir. 2015).

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Although the Fifth Circuit has never decided whether a motion to sever and abate is a
nondispositive matter for the purposes of 28 U.S.C. § 636(b) and Rule 72, this Court construes
motions to sever as nondispositive under those provisions for the following reasons.
First, motions to sever are not listed among 28 U.S.C. § 636(b)(1)’s explicitly identified
dispositive matters, suggesting that Congress did not intend for them to be treated as such. See 28
U.S.C. § 636(b)(1) (listing, inter alia, motions for summary judgment, class certification, and judgment
on the pleadings). 1
Second, a motion to sever is not “dispositive” in the ordinary use of the term. If granted, the
motion to sever would not terminate Plaintiff’s claims against Defendants. Nor would granting a
motion to sever mean that an Article III court would never have the opportunity to conduct a de
novo review of Plaintiff’s claims. See Davidson, 819 F.3d at 764 (expressing concern with treating
motions to remand as nondispositive because doing so would “create a situation in which an Article
III judge might never exercise de novo review of a case during its entire federal lifespan”). A motion
to sever is a procedural motion that determines how a plaintiff’s case is tried in federal court, not
whether it is tried in federal court.
Third, federal courts in other circuits that have considered the question have treated motions
to sever in civil cases as nondispositive. See, e.g., McCormick v. Festiva Dev. Grp., LLC, 269 F.R.D. 59,
60 (D. Me. 2010) (“Because a motion to sever is not dispositive of an action, a magistrate judge may
hear and determine the motion, subject to reconsideration by a district judge upon a showing that
the magistrate judge’s order is clearly erroneous or contrary to law.”); Arista Records, LLC v. Doe 3,
604 F.3d 110, 115 (2d Cir. 2010) (noting without disapproval that the district court held that a

Of course, it must also be observed that the Fifth Circuit has stated both that (1) the pretrial matters listed in §
636(b)(1) are not an exhaustive list of dispositive matters, and (2) a merits determination is not a necessary feature of a
dispositive matter for the purposes of § 636(b)(1). Davidson v. Georgia-Pac., L.L.C., 819 F.3d 758, 764 (5th Cir. 2016)
(holding that a motion to remand is dispositive for the purposes of § 636(b)(1) because “a remand order is dispositive
insofar as proceedings in the federal court are concerned”).

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“motion for severance of claims . . . is also properly viewed as a non-dispositive matter” for
purposes of Rule 72); Cruzan Terraces, Inc. v. Antilles Ins., Inc., 138 F.R.D. 64, 65 (D.V.I. 1991) (noting
in the context of the Federal Magistrates Act that “[g]ranting severance of plaintiff’s claims against
[defendant] is not dispositive of any of the claims”).
Fourth, federal courts in other circuits to consider the question have treated motions to
sever in criminal cases as nondispositive for the purposes of Federal Rule of Criminal Procedure 59,
the criminal-procedure counterpart to Federal Rule of Civil Procedure 72. 2 See United States v.
Cochran, 682 F. App’x 828, 842 (11th Cir. 2017) (treating a motion to sever as a nondispositive
motion under Federal Rule of Criminal Procedure 59); United States v. Morris, No. CRIM. 12-26(6)
JRT, 2012 WL 6194402, at *5 (D. Minn. Dec. 12, 2012) (“A motion to sever is a nondispositive
motion; United States v. Ortiz, No. 08-CR-231, 2011 WL 1344213, at *1 (E.D. Wis. Apr. 8, 2011)
(“Because [defendant’s] motion to sever is a nondispositive pretrial motion, the court will only
disturb the magistrate’s order if it was clearly erroneous or otherwise contrary to law.”) (citing 28
U.S.C. § 636(b)(1)(A)).
Finally, federal courts in other circuits consider motions for joinder to be nondispositive for
purposes of the Federal Magistrates Act. See Cincinnati Ins. Co. v. Hawkins, No. CIV.A.07-535, 2007
WL 2310866, at *1 n.1 (W.D. Pa. Aug. 9, 2007) (stating that the court will “follow the trend of cases
holding that the joinder of additional parties is a non-dispositive matter susceptible to resolution by
a magistrate judge”); Halsne v. Avera Health, No. 12-CV-2409 SRN/JJG, 2013 WL 3088588, at *4 (D.
Minn. June 18, 2013) (“[m]otions to amend pleadings and motions related to joinder are
nondispositive motions”); Ellsworth v. Corizon Health, Inc., No. CV-11-8070-PCT-RCB, 2012 WL
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The interpretation of matters as dispositive or nondispositive under Federal Rule of Criminal Procedure 59 is made
more persuasive by the fact that Federal Rule of Criminal Procedure 59 was drafted after, and was based on, Federal
Rule of Civil Procedure 72. See Federal Rule of Criminal Procedure 59 advisory committee’s note (“Rule 59 is a new rule
that creates a procedure for a district judge to review nondispositive and dispositive decisions by magistrate judges. The
rule is derived in part from Federal Rule of Civil Procedure 72.”).

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1267995, at *1 (D. Ariz. Apr. 16, 2012) (holding that “plaintiff’s joinder motion falls within the nondispositive group of matters which a magistrate may determine”) (quotation marks omitted).
Because joinder is a procedural ruling with a similar but inverse effect to severance, it makes sense to
treat the two in like fashion.
For all of the foregoing reasons, this Court construes Defendants’ motion to sever as a
nondispositive motion for purposes of the Federal Magistrates Act and Federal Rule of Civil
Procedure 72. After careful consideration, the Court finds that the Magistrate Judge’s findings and
recommendations are neither clearly erroneous nor contrary to law. Accordingly, the Court hereby
ADOPTS the Magistrate Judge’s Report and Recommendation, (Dkt. 21), as the opinion of the
Court. Defendant’s Motion to Sever and Abate, (Dkt. 16), is DENIED.
SIGNED on October 17, 2017.

_____________________________________
ROBERT PITMAN
UNITED STATES DISTRICT JUDGE

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