Joe Pecheles Volkswa v. Pecheles ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
In Re: JOSEPH D. PECHELES,
Appellant,
JOE PECHELES VOLKSWAGON,
INCORPORATED, a North Carolina
No. 97-2428
Corporation; BRIAN L. PECHELES,
Plaintiffs-Appellees,
v.
ELMA PECHELES,
Defendant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Greenville.
Wallace Wade Dixon, Magistrate Judge.
(CA-96-138-4-H2)
Submitted: May 12, 1998
Decided: June 15, 1998
Before MURNAGHAN and ERVIN, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
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Dismissed by unpublished per curiam opinion.
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COUNSEL
Joseph D. Pecheles, Appellant Pro Se. Donalt J. Eglinton, WARD &
SMITH, P.A., New Bern, North Carolina; Shelli Stoker Stillerman,
WARD & SMITH, P.A., Greenville, North Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Appellant Joseph D. Pecheles appeals from the magistrate judge's
order awarding attorneys' fees to plaintiffs following a remand to
state court pursuant to 28 U.S.C. § 1447(c) (1994). Because we find
that the magistrate judge did not have authority to enter a final,
appealable order on this matter, we dismiss the appeal without preju-
dice for lack of jurisdiction.
This case involves an intra-family dispute over the ownership of
stock in a family-run automobile dealership. Appellant, acting under
power of attorney, filed a motion on behalf of his mother, defendant
Elma Pecheles, to remove the case to federal court based on diversity.
The magistrate judge concluded that there was no basis for diversity
jurisdiction and remanded the case to state court.* Plaintiffs subse-
quently filed a motion for award of attorneys' fees based on the
improper removal to federal court. Following service of the motion
by direction of the magistrate judge upon appellant (presumably as
the responsible party), the magistrate judge granted the motion and
awarded attorneys' fees in the sum of $4,000 that he directed be paid
by appellant. The clerk entered a final judgment in that amount on the
same day. This appeal followed.
Pursuant to 28 U.S.C. § 636(c) (1993), a magistrate judge may
enter a final order directly appealable to the court of appeals upon
consent of all parties. Otherwise, under § 636(b), a district court must
initially review the magistrate judge's order or proposed findings
under either a de novo or clearly erroneous standard of review
depending upon the nature of the ruling(s) appealed. Absent an
express adoption, modification, or rejection of the magistrate judge's
ruling by the district court, the ruling is generally not reviewable by
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*Appellant does not appeal this decision.
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the court of appeals. See Reynaga v. Cammisa, 971 F.2d 414, 416-17
(9th Cir. 1992).
In this case, we find nothing in the record showing that the parties
agreed to have the issue of attorneys' fees decided by the magistrate
judge. As a result, the magistrate judge lacked the authority to enter
a final order on this motion. See Gleason v. Secretary of Health &
Human Servs., 777 F.2d 1324, 1324-25 (8th Cir. 1985).
Accordingly, we dismiss this appeal without prejudice for lack of
jurisdiction. We dispense with oral argument because the facts are
adequately presented in the material before the court and argument
would not aid the decisional process.
DISMISSED
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