UNPUBLISHED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Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 prejudice 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 subsequently 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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