ML-CFC 2007-6 Puerto Rico v. BPP Retail Properties, LLC

United States Court of Appeals
For the First Circuit

No. 18-1405

ML-CFC 2007-6 PUERTO RICO PROPERTIES, LLC,

Plaintiff, Appellee,

v.

BPP RETAIL PROPERTIES, LLC,

Defendant, Appellant,

v.

JLL PUERTO RICO REALTY GP, INC.;
JONES LANG LASALLE AMERICAS, INC.; LNR PARTNERS, INC.,

Third-Party Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Pedro A. Delgado-Hernández, U.S. District Judge]

Before

Howard, Chief Judge,
Torruella and Barron, Circuit Judges.

Alfredo Fernández-Martínez, with whom Carlos R. Baralt Suárez
and Gurley & Associates were on brief, for appellant.
Joan Schlump Peters, with whom Nachman & Guillemard, PSC, was
on brief, for appellee.
February 28, 2020
 BARRON, Circuit Judge. This appeal arises from a federal

district court's designation of a magistrate judge to "hear and

determine" -- pursuant to 28 U.S.C. § 636(b)(1)(A), a provision of

the Federal Magistrates Act that provides for limited review by

the district court -- a motion to appoint a receiver over certain

commercial properties that are the subject of a foreclosure action

under Puerto Rico law. The appellant contends that the motion to

appoint a receiver cannot be delegated to a magistrate judge under

§ 636(b)(1)(A). The appellant instead contends that the proper

delegation of such a motion must be made under § 636(b)(1)(B),

which permits a magistrate judge merely to issue a report and

recommendation on the motion, subject to the district court's

plenary review of any objections. We vacate and remand for further

proceedings.

I.

In early 2007, the appellee, BPP Retail Properties, LLC

("BPP"), borrowed over $90 million from Countrywide Commercial

Real Estate Finance Inc. in order to buy and develop six shopping

centers across Puerto Rico. Those same six shopping centers served

as collateral for the loan.

At some point, the appellant, ML-CFC 2007-6 Puerto Rico

Properties, LLC ("ML-CFC") became the holder of the loan. On

February 9, 2017, ML-CFC brought a foreclosure action against BPP

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under Puerto Rico law in the United States District Court for the

District of Puerto Rico, invoking its diversity jurisdiction under

28 U.S.C. § 1332.

ML-CFC alleges that when BPP's loan matured on February

8, 2012, BPP failed to repay the remaining balance. The balance

of the loan, ML-CFC asserts, remains outstanding.

After filing the foreclosure action in federal court,

ML-CFC moved for the District Court to appoint a receiver over the

six real estate properties it sought to recover. In its motion,

ML-CFC asserted that it had both a contractual right to the

appointment of a receiver1 under Puerto Rico law and that a receiver

1 In the event of a default, the mortgage deeds to each of
the properties provides:
Mortgagee shall as a matter of right and
without regard to the solvency of the
Mortgagor or the adequacy of the security for
the indebtedness from Mortgagor to Mortgagee,
be entitled to the appointment of a receiver
for all or any part of the Mortgaged Property,
whether such receivership be incidental to a
proposed sale of the Mortgaged property or
otherwise, and Mortgagor hereby consents to
the appointment of such a receiver and agrees
that it will not oppose any such appointment.
Said receiver shall have the broadest powers
and faculties usually granted to a receiver by
the court and his/her appointment shall be
made by the court as a matter of absolute right
granted to the Mortgagee.
Moreover, the Assignments of Leases and Rents for each
property provides:
At any time after the occurrence and during
the continuance of an Event of Default, (i)

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should be appointed as a matter of equity. BPP opposed the motion

by contending that this Court's precedent did not provide for the

appointment of receivers solely as a matter of contract and that

ML-CFC could not show that it was entitled to the appointment of

a receiver as a matter of equity.

Initially, the District Court referred ML-CFC's motion

to appoint a receiver to a magistrate judge for a report and

recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). That

provision permits a district court to refer certain matters to

magistrate judges to issue "proposed findings of fact and

recommendations for [their] disposition" before entering a final

order, with de novo review by the district court of all of the

parties' objections to the magistrate judge's report and

recommendation. On February 6, 2018, however, the District Court

changed course. It determined that the motion to appoint a

receiver is the type of "pretrial matter" that a district court

may designate a magistrate judge to "hear and determine" pursuant

Assignee, without waiving such Event of
Default, at its option, upon notice and
without regard to the adequacy of the security
for the Loan Obligations, either in person or
by agent, upon bringing any action or
proceeding, by a receiver appointed by a
court, or otherwise, may take possession of
the Property and have, hold, manage, lease and
operate the same on such terms and for such
period of time as Assignee may deem proper.

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to § 636(b)(1)(A). That provision allows district courts to

"designate a magistrate judge to hear and determine any pretrial

matter," such that the magistrate judge's ruling is treated as a

final order that can only be modified by a district court if it

"is clearly erroneous or contrary to law." Id.

BPP opposed this designation on the following ground.

It pointed out that, although 28 U.S.C. § 636(b)(1)(A) generally

authorizes the designation of magistrate judges to "hear and

determine any pretrial matter," that provision also bars district

courts from designating magistrate judges to "hear and determine"

certain enumerated types of motions, notwithstanding that they

concern matters that are preliminary to the trial.

Section 636(b)(1)(A) states in particular that magistrate judges

may not "hear and determine":

[M]otion[s] for injunctive relief, for
judgment on the pleadings, for summary
judgment, to dismiss or quash an indictment or
information made by the defendant, 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.

BPP argued that the motion to appoint a receiver in this

case was encompassed by the exception listed above for a "motion

for injunctive relief." Thus, BPP requested that the District

Court "revert[] its decision" and refer the motion to the

Magistrate Judge for a report and recommendation pursuant to

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§ 636(b)(1)(B), such that the District Court would then review de

novo any objections to the Magistrate Judge's recommended findings

and conclusions.

The District Court rejected BPP's argument. It

determined that the motion to appoint a receiver was a "pretrial

matter" under § 636(b)(1)(A) that was not included in the list of

excepted motions in that provision, as the District Court found

that a receivership is not a form of injunctive relief. In doing

so, the District Court concluded that the motion was not

"dispositive of the parties' rights." United States v. High Plains

Livestock, LLC, No. 15-CV-680 MCA/WPL, 2016 WL 10591975, at *4

(D.N.M. Jan. 11, 2016).

Although § 636(b)(1)(A) does not use the word

"dispositive" that the District Court invoked, we note that Federal

Rule of Civil Procedure 72, which purports to set forth the

appropriate standard of review for magistrate judge rulings, does.

Specifically, Rule 72(a), which applies to "pretrial matter[s]

[that are] not dispositive of a party's claim or defense," provides

that the district court must "modify or set aside any part of" a

magistrate judge's decision in such a matter when it "is clearly

erroneous or is contrary to law." Rule 72(b), meanwhile, provides

that a magistrate judge must "enter a recommended disposition"

when assigned "to hear a pretrial matter dispositive of a claim or

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defense," objections to which the district court "must determine

de novo."

On March 29, 2018, the Magistrate Judge entered an

"Opinion and Order" that granted ML-CFC's motion to appoint a

receiver for the commercial properties in question. The Magistrate

Judge decided the matter solely on the basis of ML-CFC's first

argument -- that the loan agreement entitled it to that appointment

upon BPP's default -- without reaching the issue of whether ML-CFC

was entitled to the appointment as a matter of equity.

At that point, BPP filed motions to stay the appointment

of a receiver and to appeal the Magistrate Judge's decision to the

District Court. The District Court denied these motions in a short

opinion:

Nothing [BPP] states justifies deviating from
the court's original ruling on this matter.
The order granting appointment of a receiver
was premised on the contractual right as set
forth in the loan documents coupled with
evidence of default, which based on the
court's review of the record, [BPP] did not
rebut despite ample opportunity to present
evidence it considered favorable. In this
way, two judicial officers have examined the
evidence: U.S. Magistrate Judge Marcos E.
López and the undersigned. But [BPP] failed
to make the showing necessary to justify the
stay request it has made, as [ML-CFC] has
persuasively argued in its opposition, or to
demonstrate that the Magistrate Judge's
decision should be set aside. [BPP] signed a
contract, and must live with the consequences
of having done so.

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 On April 23, 2018, BPP filed an interlocutory appeal

pursuant to 28 U.S.C. § 1292(a)(2), which allows for the immediate

appeal of "orders appointing receivers" to a court of appeals.

BPP appeals both the District Court's decision to refer the matter

to the Magistrate Judge for resolution pursuant to 28 U.S.C.

§ 636(b)(1)(A) and the merits of whether a receiver should have

been appointed pursuant to the contract. BPP does not appeal the

denial of its motion for a stay.

We heard oral argument and asked the parties at that

time to address an issue not considered in their briefs. That

issue concerned whether, if we disagreed with BPP's contention

that the appointment of a receiver is a form of "injunctive relief"

under § 636(b)(1)(A), and held that the Magistrate Judge could be

designated by the District Court to "hear and determine" the motion

pursuant to that provision, the Magistrate Judge's determination

of that issue would contravene Article III of the federal

Constitution, given the limited review that § 636(b)(1)(A)

empowered the District Court to exercise over that decision.

Following argument, we then called for two subsequent rounds of

briefing about the Article III concerns that we had raised at

argument. Thus, we have before us BPP's challenge to the District

Court's statutory authority to refer the motion to appoint a

receiver to the Magistrate Judge under § 636(b)(1)(A) and BPP's

challenge to the merits of the ruling granting that motion. But,

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we also potentially have before us the lurking Article III issue

that concerns whether, even if the Magistrate Judge had statutory

authority under § 636(b)(1)(A) to "hear and determine" the motion,

the Magistrate Judge was powerless to do so under Article III.

II.

We start with BPP's challenge to the District Court's

statutory authority to designate the Magistrate Judge to "hear and

determine" the motion to appoint a receiver pursuant to 28 U.S.C.

§ 636(b)(1)(A). We do so because, if that challenge has merit,

then we would have no occasion to consider either the

constitutionality of the designation or the merits of the order

granting the motion to appoint the receiver. Our review of this

pure question of law is de novo. See Williams v. Beemiller, Inc.,

527 F.3d 259, 264 (2d Cir. 2008) (noting that challenges to

referrals under 28 U.S.C. § 636(b)(1)(A) implicate "questions of

statutory interpretation" and are thus reviewed de novo).

BPP argues that "the appointment of a receiver . . .

should be considered -- both procedurally and substantively -- as

a preliminary injunction." BPP then contends that the motion at

issue is for that reason a motion for "injunctive relief" under

§ 636(b)(1)(A) and thus that a district court may not delegate the

motion to a magistrate judge to "hear and determine" subject only

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to its review of whether the magistrate judge's determination was

clearly erroneous or contrary to law.

In support of that contention, BPP emphasizes that both

the issuance of a preliminary injunction and the appointment of a

receiver are "pre-trial remed[ies] in equity," for which the

standard of review is abuse of discretion. And, BPP points out,

Congress permits parties to take interlocutory appeals with regard

to "orders appointing receivers, or refusing orders to wind up

receiverships or to take steps to accomplish the purposes thereof,

such as directing sales or other disposals of property," 28 U.S.C.

§ 1292(a)(2), much the same as Congress permits parties to do with

regard to preliminary injunctions.

But, BPP provides us with no precedential support for

the contention that the appointment of a receiver has historically

been viewed as a form of injunctive relief, and, in Highland Ave.

& B.R. Co. v. Columbian Equipment Co., 168 U.S. 627 (1898), the

United States Supreme Court indicated otherwise. There, the Court

considered whether, under a statute that permitted parties to file

interlocutory appeals of decisions "granting, continuing,

refusing, dissolving, or refusing to dissolve an injunction to the

circuit court of appeals," a party could file an interlocutory

appeal of an order appointing a receiver. Id. at 629-30 (emphasis

added). The Court concluded that an interlocutory appeal could

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not be taken from an order appointing a receiver under that statute

because injunctions and receiverships:

are, in the common understanding of the
profession, entirely independent. The
distinction between the two is clearly
recognized in the text-books and in the
reports. We have separate treatises on
injunctions and on receivers. The separation
between them is one which runs through the
law, and while it is true that the mandatory
features which, either expressly or by
implication, attend orders appointing
receivers, are sometimes made the matter of
discussion in treatises on receivers, or the
subject of comment in decisions concerning
receivers, yet the distinction is never
forgotten. Familiar, as it must be assumed to
have been, with this generally recognized
distinction, congress, if it had intended that
appeals should be allowed from orders
appointing receivers, as from orders in
respect to injunctions, would doubtless have
expressly named such orders.

Id. at 631.

It is true that 28 U.S.C. § 636(b)(1)(A) uses the phrase

"injunctive relief" rather than the word "injunction." But, that

terminological choice alone does not persuade us that Congress

intended to encompass an order to appoint a receiver within the

phrase "injunctive relief" when it is clear that, according to

Highland, such an order has traditionally been viewed as different

from an injunction along a number of dimensions. In fact, BPP's

own argument about the current interlocutory appeal statute

demonstrates that Congress continues to differentiate between the

issuance of an injunction and the appointment of a receiver. See

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28 U.S.C. § 1292(a)(1) (providing for interlocutory appeals of

orders relating to injunctions); id. § 1292(a)(2) (providing for

interlocutory of appeals relating to receiverships).

Nevertheless, we conclude that there is a distinct but

closely related basis for deciding that the District Court's

referral of the motion to the Magistrate Judge to "hear and

determine" subject only to limited review was impermissible. That

neither of the parties developed this argument -- until one of

them referenced it in their reply brief filed in connection with

the second round of supplemental briefing -- does not prevent us

from ruling on this basis, especially given that doing so obviates

the need for us to address a constitutional question arising under

Article III. See U.S. Nat. Bank of Or. v. Indep. Ins. Agents of

Am., Inc., 508 U.S. 439, 447 (1993) ("[A] court may consider an

issue 'antecedent to . . . and ultimately dispositive of' the

dispute before it, even an issue the parties fail to identify and

brief." (second alteration in original) (quoting Arcadia v. Ohio

Power Co., 498 U.S. 73, 77 (1990))); Kamen v. Kemper Fin. Servs.,

Inc., 500 U.S. 90, 99 (1991) ("When an issue or claim is properly

before the court, the court is not limited to the particular legal

theories advanced by the parties, but rather retains the

independent power to identify and apply the proper construction of

governing law."); The Anaconda v. Am. Sugar Ref. Co., 322 U.S. 42,

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46 (1944) (noting that parties "can not stipulate away" what

"Congress has so declared").

That distinct basis for so ruling rests on our prior

precedent, which accords with the precedents of other courts,

addressing the relationship between 28 U.S.C. § 636(b)(1) and

Federal Rule of Civil Procedure 72. As we will explain, that body

of precedent construes § 636(b)(1) and Rule 72 in a manner that

ensures that magistrate judges may act on what Rule 72(b) refers

to as "dispositive" motions only by issuing reports and

recommendations, with any objections to those recommendations

subject to de novo review by the district court, and that

magistrate judges may "hear and determine," subject to more limited

review by the district court, only what Rule 72(a) refers to as

"nondispositive" motions.

In the first of our decisions in this line of authority,

Phinney v. Wentworth Douglas Hospital, 199 F.3d 1, 5 (1st Cir.

1999), we held that a motion for discovery sanctions could, in

some circumstances, be delegated to a magistrate judge to "hear

and determine" as a "pretrial matter" under § 636(b)(1)(A), such

that it would be reviewed only for being clearly erroneous or

contrary to law, just as Rule 72(a) contemplates may be the case

for motions it terms "nondispositive." We explained that Rule 72

augmented the provisions in the Federal Magistrates Act,

"mirror[ing] the standard-of-review taxonomy described in section

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636(b)(1)," id., by providing "that a magistrate's order on a

nondispositive motion shall be modified or set aside by the

district court only if 'found to be clearly erroneous or contrary

to law,'" but that "if a party contests a magistrate's proposed

findings and recommendations on a dispositive motion, the district

judge must 'make a de novo determination,'" id. (emphases added)

(quoting Fed. R. Civ. P. 72). We further explained "that the terms

dispositive and nondispositive as used in Rule 72 must be construed

in harmony with the classifications limned in section 636(b)(1),"

id., and that, in consequence, the "dispositive motions" referred

to in Rule 72 were not only "those excepted motions specifically

enumerated in section 636(b)(1)(A), and no others," id. Rather,

we clarified that the "enumeration" of motions in § 636(b)(1)(A)

"informs the classification of other motions as dispositive or

nondispositive," id. at 6, such that they, too, would be subject

to the standard of review for such motions prescribed by Rule 72.

Against that background, we held that the motion for

discovery sanctions at issue had been properly delegated under

§ 636(b)(1)(A) and Rule 72(a) because the magistrate judge acted

on the motion by imposing only a small monetary sanction. Id. We

did so because such a motion was not expressly "excepted under 28

U.S.C. § 636(b)(1)(A)" and, given the sanction ultimately issued,

was not of a type that, "in general," was "of the same genre of

the enumerated motions." Id. Accordingly, we treated that motion

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as "nondispositive" within the meaning of Rule 72(a), thereby

ensuring that the delegation to a magistrate judge to "hear and

determine" the motion, subject only to limited review by a district

court, would be in harmony with that part of Rule 72. We noted,

though, that a motion for discovery sanctions might be subject to

Rule 72(b), notwithstanding that it was not specifically excepted

from § 636(b)(1)(A), in the event that "a magistrate judge

aspire[d] to impose a sanction that fully dispose[d] of a claim or

defense," id., apparently on the understanding that such a

resolution of a discovery sanctions motion necessarily would

render the motion a "dispositive" one within the meaning of Rule

72(b), thereby implicating the requirements of that part of Rule

72.

We then drew upon Phinney's reasoning in PowerShare,

Inc. v. Syntel, Inc., 597 F.3d 10, 13-14 (1st Cir. 2010). We did

so in ruling that a motion to stay litigation pending arbitration

was a "pretrial matter" that could be delegated to a magistrate

judge for a final decision under 28 U.S.C. § 636(b)(1)(A), subject

only to review by the district court of whether that decision was

clearly erroneous or contrary to law. See id. at 14. And, once

again, we did so because we determined that such a motion was not

"dispositive" within the meaning of Rule 72(b). See id. We made

sure to note, however, that, pursuant to our approach in Phinney,

the list of "[d]ispositive" motions in § 636(b)(1)(A) that may not

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be delegated to a magistrate judge to "hear and determine" pursuant

to that provision is "not exhaustive" of the category, such that

Rule 72(b)'s de novo standard of review for "dispositive" motions

might apply to a motion that does not appear on the list, due to

constitutional concerns associated with allowing "magistrate

judges . . . [to] decide motions that are dispositive either of a

case or of a claim or defense within a case." Id. at 13.

Indeed, other courts have similarly recognized that the

"[t]he duty to avoid constitutional difficulties when interpreting

a statute warrants a narrow reading of the matters in which a

magistrate judge may enter orders without de novo Article III

review." Davidson v. Georgia-Pacific, L.L.C., 819 F.3d 758, 763

(5th Cir. 2016). On that basis, they, too, have favored a

construction of § 636(b)(1)(A) that harmonizes it with Rule 72's

distinction between the treatment of "dispositive" and

"nondispositive" motions and its concomitant use of distinct

standards of review for each type. See id.; Mitchell v.

Valenzuela, 791 F.3d 1166, 1168-69 (9th Cir. 2015) ("To determine

whether a motion is dispositive, we have adopted a functional

approach that looks 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." (quoting Flam

v. Flam, 788 F.3d 1043, 1046 (9th Cir. 2015)); Vogel v. U.S. Office

Prods. Co., 258 F.3d 509, 514-15 (6th Cir. 2001) ("In determining

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whether a particular motion is dispositive, this court undertakes

functional analysis of the motion's potential effect on

litigation. The list of dispositive motions contained in

§ 636(b)(1)(A) is nonexhaustive, and unlisted motions that are

functionally equivalent to those listed in § 636(b)(1)(A) are also

dispositive.").2

Against this background, we conclude that,

notwithstanding our construction of "injunctive relief" in

§ 636(b)(1)(A), ML-CFC's motion is properly deemed "dispositive,"

despite the District Court's apparent contrary determination.3 The

2 A leading treatise provides:
The rule's deviation from the language of the
statute is not merely stylistic or a result of
the distinct functions of the Act and the
Federal Rules. It is meant to reflect the
legislative history of the 1976 amendments,
the considerations underlying the differing
standards of review, and the body of case law
that developed in practice under the
provisions of Section 636(b)(1).

12 Charles Alan Wright et al., Federal Practice and Procedure
§ 3068.2 (3d ed. 2019). Indeed, even before Rule 72 was issued,
the Supreme Court understood § 636(b)(1) to differentiate between
"dispositive" and "nondispositive" motions. See United States v.
Raddatz, 447 U.S. 667, 673-74 (1980) (deeming the eight excepted
motions in 28 U.S.C. § 636(b)(1)(A) "dispositive" and suggesting
that a "pretrial matter" must be a "nondispositive motion[]").
3 One might question how the text of 28 U.S.C. § 636(b)(1)(A)
permits a motion not listed in § 636(b)(1)(A) that otherwise
qualifies as a "pretrial matter" to nonetheless be subject to the
standard of review for "dispositive" motions set forth in Rule
72(b) rather than to the clearly erroneous/contrary to law standard
of review set forth in Rule 72(a) and § 636(b)(1)(A), especially

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motion to appoint a receiver seeks to have a court undertake an

action that could have a significant impact on a party's ability

to manage and control its property during the course of litigation.

And thus, unsurprisingly, the law requires that a court, before it

may take such an action, must consider an array of factors as a

matter of equity, including the same critical merits-based factor

that a court must consider before granting what is clearly, in

this context, a "dispositive" motion -- a motion to issue a

preliminary injunction. That merits-based factor is a preliminary

determination of which party is likely to succeed on the merits.

See Consol. Rail Corp. v. Fore River Ry. Co., 861 F.2d 322, 326-27

given the fact that Rule 72 postdates the enactment of § 636(b)(1).
But, as we have noted, Phinney and PowerShare concluded that such
treatment was proper for all analogous "dispositive" motions, as
have other courts. Moreover, the parties before us have not
advanced any argument that those precedents were wrongly decided,
nor have they argued that a motion to appoint a receiver is, by
analogy to the conducting of voir dire in a felony trial, not a
"pretrial matter" under § 636(b)(1)(A) even though it is made in
advance of the trial. See Gomez v. United States, 490 U.S. 858,
874 n.28 (1989); United States v. Trice, 864 F.2d 1421, 1427-28
(8th Cir. 1988). We thus follow the parties in proceeding on the
assumption that whether the motion is "dispositive" within the
meaning of Rule 72 is, well, dispositive of whether this motion is
encompassed by the standard of review set forth in § 636(b)(1)(A)
rather than § 636(b)(1)(B), even if it is not a type of motion
expressly included in the list of motions excepted from
§ 636(b)(1)(A). Both parties' implicit acceptance of the premise
that a motion that is "dispositive" under Rule 72 must also not be
determinable by a magistrate judge without de novo review under
§ 636(b)(1)(B) strengthens our conclusion that it is appropriate
for us to resolve the case on the basis that the motion at issue
is "dispositive" even if the parties elected to focus their
arguments elsewhere.

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(1st Cir. 1988) (listing factors to be considered "when determining

the appropriateness of the appointment of a receiver," which

includes, among others, "imminent danger that property will be

lost or squandered, the inadequacy of available legal remedies,

. . . the plaintiff's probable success in the action[,] and the

possibility of irreparable injury to his interests in the property"

(internal citations omitted)); 75 C.J.S. Receivers § 4 (2019).

Of course, in this case, the Magistrate Judge purported

to base the granting of the motion to appoint a receiver on the

contract between the parties rather than on an equitable

determination. But, that fact makes the order here no less based

on the merits of the underlying foreclosure action and thus no

less "dispositive" in the relevant respect than a motion for a

preliminary injunction.

The Magistrate Judge granted the motion to appoint the

receiver as a matter of contract only after determining, in accord

with the contract, that there was an adequate showing that BPP had

defaulted on the loan. As that preliminary determination about

whether there was such a default is central to the merits of the

foreclosure action itself, the fact that the motion was granted on

the basis of the contract fails to provide a basis for concluding

that the motion was not, on this record, a "dispositive" one in

the relevant sense.

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 Thus, because a motion for a preliminary injunction is

a motion encompassed by the list of prohibited motions in 28 U.S.C.

§ 636(b)(1)(A), and because we must construe that list to "inform[]

the classification of other motions as dispositive or

nondispositive," Phinney, 199 F.3d at 6, we conclude that this

motion to appoint a receiver was "dispositive" under Rule 72.4

And, in light of Phinney, PowerShare, and the related precedents

from other courts, we thus do not reach the merits of whether the

Magistrate Judge's decision was correct. Rather, in harmony with

Rule 72(b) and in accord with 28 U.S.C. § 636(b)(1), "we remand

for the district court to apply de novo review to the magistrate

judge's unauthorized order," after the parties have had a fresh

chance to submit objections to that order. United States v.

Rivera-Guerrero, 377 F.3d 1064, 1071 (9th Cir. 2004).5

4Motions to remand a case to state court are also generally
not thought to be dispositive of a claim or defense, but that has
not stopped other circuit courts from treating them as
"dispositive" under Rule 72(b) in order to avoid constitutional
questions. See First Union Mortg. Corp. v. Smith, 229 F.3d 992,
996 (10th Cir. 2000) ("Section 636 and Rule 72 must be read, where
possible, so as to avoid constitutional problems, and '[t]he
Constitution requires that Article III judges exercise final
decisionmaking authority.'" (alteration in original) (quoting
Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1463 (10th Cir.
1988))).
5We note that although ML-CFC has argued throughout this
litigation that the motion to appoint a receiver was
"nondispositive" and therefore delegable as a "pretrial matter"
under § 636(b)(1)(A), it has made no argument that, if the matter
were "dispositive," then it was still proper for the Magistrate
Judge to hear and determine the motion without de novo review

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 III.

We vacate the District Court's decision overruling BPP's

objections to the Magistrate Judge's order and remand for further

proceedings consistent with this opinion. No costs are awarded.

rather than for the magistrate judge to merely issue a report and
recommendation on the motion to be reviewed in accord with Rule
72(b). And, of course, BPP is in no position to object to the
approach we take here in light of its arguments in favor of
treating this motion as one that may be given to a magistrate judge
to issue a report and recommendation pursuant to 28 U.S.C.
§ 636(b)(1)(B). See New Hampshire v. Maine, 532 U.S. 742, 750
(2001) (noting that the doctrine of judicial estoppel may be used
to "prohibit[] parties from deliberately changing positions
according to the exigencies of the moment" (citing United States
v. McCaskey, 9 F.3d 368, 378 (5th Cir. 1993)).

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