=====================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
Amendment No. 1
to
Schedule 14D-1
Tender Offer Statement
Pursuant to Section 14(d)(1) of the Securities Exchange Act of 1934
and
Statement on
Schedule 13D
Under the Securities Exchange Act of 1934
Big B, Inc.
(Name of Subject Company)
---------------
RDS Acquisition Inc.
Revco D.S., Inc.
(Bidders)
---------------
Common Stock, Par Value $0.001 Per Share
(Title of Class of Securities)
0888917106
(CUSIP Number of Classes of Securities)
---------------
Jack A. Staph, Esq.
Senior Vice President, Secretary and General Counsel
Revco D.S, Inc.
1925 Enterprise Parkway
Twinsburg, OH 44087
(216) 487-1667
(Name, Address and Telephone Number of Persons Authorized to
Receive Notices and Communications on Behalf of Bidders)
---------------
Copy to:
Richard Hall, Esq.
Cravath, Swaine & Moore
Worldwide Plaza
825 Eighth Avenue
New York, New York 10019-7475
(212) 474-1293
=====================================================================
<PAGE>
RDS Acquisition Inc. (the "Purchaser") and Revco
D.S., Inc. ("Parent") hereby amend and supplement their Tender
Offer Statement on Schedule 14D-1 and Statement on Schedule 13D
(the "Schedule 14D-1"), originally filed on September 10, 1996,
with respect to their offer to purchase all outstanding shares
of common stock, par value $0.001 per share, of Big B, Inc., an
Alabama corporation (the "Company"), as set forth in this
Amendment No. 1.
Item 10. Additional Information.
(e) On September 13, 1996, the Purchaser delivered a
demand (the "Demand") to inspect the securityholder lists and
related corporate records of the Company pursuant to Section
16.02 of the Alabama Business Corporation Act. On September 17,
1996, the Company filed a complaint (the "Complaint") in
Circuit Court of Jefferson County, Alabama, Bessemer Division,
seeking clarification of the Demand and a temporary restraining
order and temporary and permanent injunctions preventing the
Purchaser from enforcing a portion of the Demand. On September
18, 1996, the Purchaser filed a Notice of Removal removing the
matter before the Jefferson Country court to the federal
district court located in the Northern District of Alabama.
Copies of the Complaint and the Notice of Removal have been
filed as exhibits to Amendment No. 1 to the Schedule 14D-1.
Item 11. Material to be filed as Exhibits.
Item 11 of the Schedule 14D-1 is amended to include
as exhibits the Complaint and the Removal and to properly
reflect that the document previously filed as exhibit (c) to
the Schedule 14D-1 should have been filed as exhibit (b)
thereto.
(b) Amended and Restated Credit Agreement dated as of
July 27, 1995 among Parent, Banque Paribas and Bank of
Illinois, as managing agents, Bank of America National Trust
and Savings Association, as administrative agent, and the
syndicate of lenders thereto (previously filed).
(c) None.
(g)(1) Complaint filed by the Company on September
17, 1996, in the action entitled Big B, Inc. v. RDS
Acquisition, Inc. (Circuit Court of Jefferson Country, Alabama,
Bessemer Division).
(g)(2) The Purchaser's Notice of Removal dated
September 18, 1996, in the action entitled Big B, Inc. v. RDS
Acquisition Inc. (Circuit Court of Jefferson Country, Alabama,
Bessemer Division).
<PAGE>
SIGNATURE
After due inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this
Amendment No. 1 is true, complete and correct.
Dated: September 18, 1996
REVCO D.S., INC.,
by /s/ Jack A. Staph
-------------------------------
Name: Jack A. Staph
Title: Senior Vice President,
Secretary and General
Counsel
RDS ACQUISITION INC.,
by /s/ Jack A. Staph
---------------------------------
Name: Jack A. Staph
Title: Vice President and Secretary
<PAGE>
Exhibit Index
Page
Exhibit (b) Amended and Restated Credit
Agreement dated as of July 27,
1995 among Parent, Banque Paribas
and Bank of Illinois, as managing
agents, Bank of America National
Trust and Savings Association, as
administrative agent, and the
syndicate of lenders thereto
(previously filed)
Exhibit (c) None
Exhibit (g)(1) Complaint filed by the Company on
September 17, 1996, in the action
entitled Big B, Inc. v. RDS
Acquisition, Inc. (Circuit Court
of Jefferson Country, Alabama,
Bessemer Division)
Exhibit (g)(2) The Purchaser's Notice of Removal
dated September 18, 1996, in the
action entitled Big B, Inc. v.
RDS Acquisition, Inc. (Circuit
Court of Jefferson Country,
Alabama, Bessemer Division)
IN THE CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMA
BESSEMER DIVISION
- ------------------------------------------
BIG B, INC., :
:
Plaintiff,:
:
v. : CIVIL ACTION NO.
:
RDS ACQUISITION, INC., :
:
Defendant.:
:
- ------------------------------------------
VERIFIED COMPLAINT FOR TEMPORARY RESTRAINING ORDER,
PRELIMINARY AND PERMANENT INJUNCTIONS, AND
COMPLAINT FOR DECLARATORY JUDGMENT
1. Plaintiff Big B, Inc. ("Big B") is a corporation
organized and existing under the laws of the State of Alabama,
whose principal place of business is located at 2600 Morgan
Road, S.E., Bessemer, Alabama.
2. Defendant RDS Acquisition, Inc. ("RDS") has
alleged through a "Demand for Inspection of Corporate Records"
that it is a "holder of record" of certain shares of the common
stock of Big B.
3. This action is brought pursuant to Alabama
Code ss. 6-6-20, et seq. (1993 and Cum Supp. 1995). There
exists a justiciable controversy between Big B and RDS in
that RDS has made certain immediate demands on Big B related
to the inspection of certain corporate books and records
<PAGE>
pursuant to Alabama Code ss. 10-2B-16.02, and Big B
is uncertain of its legal rights and obligations pursuant
thereto.
4. A construction of the statute in question is
in order for Big B and its officers to fully understand Big
B's rights and obligations and particularly in view of the
significant penalties which are provided for in Ala. Code
ss. 10-2B-16.02(c), for failure to properly comply with the
statute.
5. The demand for inspection of corporate books
and records ("the demand") submitted by RDS to Big B,
considered in light of the relevant provisions of Alabama
Business Corporation Act creates at least give substantial
ambiguities and uncertainties related to Big B's
obligations under the statute. Big B requests that this
Court construe the statute to clarify its legal obligations
pursuant to the demand.
6. The first uncertainty arises in that the
demand attached hereto as Exhibit "A" from RDS seeks to
require the production and inspection of voluminous
materials beginning on September 20, 1996, and continuing
thereafter. Defendant RDS claims that it is the "holder of
record" of more than five (5) percent of the outstanding
shares of common stock of Big B and is entitled therefore to
<PAGE>
review the documents described in Ala. Code ss. 10-2B-
16.02(b). Subsection (b) of section 16.02 provides that the
records required to be produced under that section are only
required to be produced to a shareholder "who shall have
been a holder of record of shares of 180 days immediately
preceding his or her demand or who is the holder of record
of at least five percent of the outstanding shares"
(emphasis added) of the corporation. However, the stock
transfer records of Big B reflect that as of September 16,
1996, RDS was not a "holder of record." (See Affidavit of
David E. White, attached hereto as Exhibit "B"). There is,
therefore, a genuine dispute about whether defendant RDS is
entitled to the records encompassed within the provisions
of ss. 10-2B-16.02(b).
7. The transfer agent's records reflect that RDS
is not a shareholder "of record" and Big B contends that
many of the documents requested in the demand are not due
to be produced for inspection. Construction of the statute
is essential so that Big B is fully aware of its legal
rights and obligations in this regard.
8. A second uncertainty arises upon a
consideration of the terms of the demand, as juxtaposed
with Section 16.02(a) of the statute. Subsection (a) of
Section 10-2B-16.02 requires that a corporation allow
<PAGE>
inspection of specific kinds of documents (listed in 10-2B-
16.01(e)). Those documents will be delivered by Big B to
counsel for inspection by RDS in accordance with the
demand. The uncertainty is created because the demand seeks
inspection of and review of voluminous documents not
described in subsection (a). Those demands are the subject
of this Complaint and give rise to Big B's request for
construction of the statute.
9. Big B will provide to RDS for inspection those
documents under subsection (a) of 10-2B-16.02 requested in
paragraphs (a), (b), (d), (f), (g), (h) and (s) of RDS's
demand. Big B has compiled the remainder of the documents
described in Section 10-2B-16.02(a) (and 16.01(e)) for
inspection by RDS or in the alternative for delivery to
counsel for RDS prior to Friday, September 20, 1996.
10. A third area of uncertainty arises should the
Court determine that Big B must respond to RDS's demand
under subsection (b) of 16.02. A number of the requested
documents are beyond the purview of those required to be
provided under subsection (b) of 16.02. The documents
described in paragraphs (j), (k), (l), (m), (n) and (p) of
RDS's demand are not a part of Big B's books and records.
Paragraphs (o) and (q) of RDS's demand describe documents
<PAGE>
in terms so vague and ambiguous that Big B cannot
confidently comply with its statutory obligations.
11. The demands requested in paragraphs (c), (e),
and (i) of RDS's demand are not required to be produced
under subsection (a). And, if subsection (b) is applicable,
these requests are phrased in terms so broad that strict
compliance therewith is a virtual impossibility.
12. A fourth issue for construction by the Court
is created by RDS's demand that
"Modifications, additions or deletions
to any and all information referred to
in paragraph (a) and paragraphs (i)-(p)
above as of the date of the list
referred to in paragraph (i) above be
immediately furnished to the holder
[RDS] as such modifications, additions
or deletions become available to the
company [Big B] or its agents or
representatives through the date of
expiration of the offer [the tender
offer by RDS] and that the information
and records specified in paragraph (l)
above be furnished on a weekly basis
until the expiration of the offer.
Neither subsection (a) nor (b) of Section 16.02 creates any
continuing obligation to make available for inspection
documents which came into existence after the original
inspection date. RDS apparently contends otherwise.
Therefore, the Court must construe the statute to clarify
Big B's obligations in this regard.
<PAGE>
13. A fifth area for construction is presented by
RDS's demand that the records be provided for inspection in
a manner other than that required by the statute. RDS
demands that Big B deliver reports referred to in paragraph
(m) of the demand to D.F. King & Company, Inc. RDS also
demands to inspect the documents in paragraphs (b), (d),
(f), (g), (h) and (s) of the demand at the corporation's
principal offices. Subsection (a) of 16.02 requires only
that those records be provided for inspection "during
regular business hours at the corporation's principal
office." Subsection (b) requires that those corporate
records be available for inspection "during regular
business hours at a reasonable location within this state
specified by the corporation" (emphasis added). RDS's
demand is in contravention of the statutory requirements.
14. Absent the issuance of a temporary
restraining order, Big B will suffer immediate and
irreparable injury in that the failure to allow inspection
of the requested records, by Friday, September 20, 1996
requires the imposition of a penalty against Big B not to
exceed ten percent (10%) of the value of shares owned by
RDS pursuant to Section 10-2B-16.02(c).
15. Big B has attempted to notify RDS of this
action by telephoning its counsel of record at the law firm
<PAGE>
of Bradley, Arant, Rose & White. Big B is also
contemporaneously with the filing of this Complaint hand
delivering a copy of it to said counsel.
WHEREFORE, PREMISES CONSIDERED, Big B requests
this court to enter an immediate Temporary Restraining
Order as follows:
a. restraining RDS from reviewing any records
other than those specifically called for in Ala. Code
Section 10-2B-16.02(a) until the respective rights of the
parties are determined as requested in Plaintiff's Big B's
Complaint; and
b. tolling the operation of the statutory period
of time in which Big B is obligated to respond to the
demand, pending this Court's final ruling.
Big B further requests the following:
c. that after a proper hearing, the Court enter
an Order construing the applicable Alabama statutes and
preliminarily and thereafter permanently enjoining RDS as
requested herein; and
<PAGE>
d. any such other and further relief as this
Court deems reasonable and equitable under the
circumstances.
BIG B, INC.
By:
-----------------------
Its
--------------------
STATE OF ALABAMA )
)
JEFFERSON COUNTY )
I, , a notary public in and
for said county, in said state, hereby certify that
, whose name as of
Big B, Inc., a corporation, is signed to the foregoing
Verified Complaint, and who is known to me, acknowledged
before me on this date that being informed of the contents
of such instrument, he as such officer and with full
authority, executed the same voluntarily for and as the act
of said corporation on the date the same bears date.
Given under my hand this day of ,
1996.
-------------------------
Notary Public
My Commission Expires:
------
----------------------------
Kaye H. Turberville (HOU002)
Samuel M. Hill (HIL025)
Attorneys for Big B, Inc.
<PAGE>
OF Counsel:
SIROTE & PERMUTT, P.C.
2222 Arlington Avenue S.
P.O. Box 55727
Birmingham, AL 35255-5727
(205) 933-7111
PLAINTIFF DEMANDS TRIAL BY JURY
-------------------------
Of Counsel
SERVE DEFENDANT BY CERTIFIED MAIL AS FOLLOWS:
RDS Acquisition, Inc.
1925 Enterprise Parkway
Twinsburg, OH 44087
IN THE CIRCUIT COURT FOR
JEFFERSON COUNTY, ALABAMA
BESSEMER DIVISION
BIG B, INC., )
)
Plaintiff, )
)
v. ) CIVIL ACTION NO. CV-96-796
)
RDS ACQUISITION INC., )
)
Defendant. )
NOTICE OF FILING NOTICE OF REMOVAL
TO: Earl N. Carter, Jr., Clerk of Court
Jefferson County Courthouse, Bessemer Division
1801 North 3rd Avenue
Bessemer, Alabama 35020
Pursuant to 28 U.S.C. ss. 1446(d), the defendant hereby
gives notice to the Circuit Court of Jefferson County Alabama,
Bessemer Division and to counsel for the plaintiff that the
defendant has filed notice of removal with the United States
District Court for the Northern District of Alabama, Southern
Division, and that this case has been removed to that Court.
Attached is a copy of this notice of removal.
Hobart A. McWhorter, Jr.
McW001
Philip J. Carroll, III
CAR076
<PAGE>
Matthew A. Aiken
Attorneys for
RDS Acquisition Inc.
OF COUNSEL:
BRADLEY, ARANT, ROSE & WHITE
P.O. Box 830709
Birmingham, Alabama 35283-0709
(205) 521-8000
CERTIFICATE OF SERVICE
I hereby certify that I have this date served the
foregoing Notice of Removal on Kaye H. Turberville, Esq.,
Sirote & Permutt, P.C., 2222 Arlington Avenue South,
Birmingham, Alabama 35255 by delivering a copy of same to her
on this 18 day of September, 1996.
---------------------
OF COUNSEL
<PAGE>
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
BIG B, INC., )
)
Plaintiff, )
)
v. ) CIVIL ACTION NO.
)
RDS ACQUISITION INC., )
)
Defendant. )
NOTICE OF REMOVAL
TO: CLERK, U.S. DISTRICT COURT, NORTHERN DISTRICT OF
ALABAMA, SOUTHERN DIVISION
Please take notice that pursuant to 28 U.S.C. ss. ss.
1441, et seq. defendant RDS Acquisition Inc. ("RDS"), hereby
removes to the United States District Court for the Northern
District of Alabama, Southern Division, an action presently
pending in the Circuit Court of Jefferson County, Alabama,
Bessemer Division, entitled, BIG B. INC. v. RDS ACQUISITION
INC., Civil Action No. 96-796, filed on September 17, 1996, in
the Circuit Court of Jefferson County, Alabama, Bessemer
Division, upon the following grounds:
<PAGE>
1. This action was commenced by the filing of the Verified
Complaint for Temporary Restraining Order, Preliminary and
Permanent Injunctions, and Complaint for Declaratory Judgement
on September 17, 1996. Copies of all process, pleadings and
orders served upon RDS or present in the state court clerk's
file in this action are attached hereto as Exhibit "A."
2. There is one named Plaintiff to this action. Plaintiff
Big B, Inc. ("Big B") alleges that it is a corporation
organized and existing under the laws of the State of Alabama
with its principal place of business located at 2600 Morgan
Road, S.E., Bessemer, Alabama. Complaint, P. 1.
3. There is one named Defendant to this action. Defendant
RDS is a Delaware corporation with its principal place of
business in Twinsburg, Ohio.
4. The first notice to the defendant of this action was on
September 17, 1996, when defendant RDS received a copy of the
complaint. This action is removed within thirty days of notice
thereof to RDS, pursuant to 28 U.S.C. ss. 1446(b).
<PAGE>
5. This Court has jurisdiction over this action pursuant
to 28 U.S.C. ss.1332. In relevant part, 28 U.S.C. section
1441(a) provides that "any civil action brought in a State
court of which the district courts of the United States have
original jurisdiction, may be removed by the defendant . . . to
the district court of the United States . . . ." Article III,
ss.2 of the United States Constitution confers federal judicial
power to controversies between the citizens of different
states. Federal district courts are granted original
jurisdiction over diversity cases in which the amount in
controversy exceeds $50.000.00. 28 U.S.C. ss.1332.
6. For purposes of diversity of citizenship federal
jurisdiction, diversity exists whenever all of the plaintiffs
are of different citizenship than all of the defendants. Lane
v. Champion Intern. Corp., 827 F. Supp. 701 (S.D. Ala. 1993)
(citing Strawbridge v. Curtiss, 7 U.S. 267 (1806)). This
requirement is satisfied here. Big B is an Alabama corporation
with its principal place of business in Alabama. RDS is a
Delaware corporation with its principal place of business in
Twinsburg, Ohio.
<PAGE>
7. In addition to the requirement that parties be diverse
citizens, the amount in controversy must exceed $50,000.00. 28
U.S.C. ss.1332. Plaintiff Big B seeks a temporary restraining
order, preliminary and permanent injunctions, and a declaratory
judgement. "The purpose of an amount in controversy requirement
is to ensure the substantiality of the suit itself, not solely
the amount which the plaintiff stands to recover." 1 J. Moore,
Moore's Federal Practice P. 91[1] at 819 (2 ed. 1991). In a
diversity case, the amount in controversy is "measured not by
the monetary result of determining the principle involved but
by its pecuniary consequence to those involved in the
litigation." Thomson v. Gaskill, 315 U.S. 442, 447 (1942).
Duderwicz v. Sweetwater Sav. Ass'n, 595 F.2d 1008, 1014 (5th
Cir. 1979). Therefore, in an action for injunctive relief, "it
is well established that the amount in controversy is measured
by the value of the object of the litigation," Hunt v.
Washington State Apple Adv. Comm'n, 432 U.S. 333, 347-48
(1977).
8. In this case, the value of the requested injunctive
relief far exceeds the $50,000.00 requirement for diversity. In
paragraph fourteen of plaintiff's complaint, plaintiff states
that it "will suffer immediate and irreparable injury in that
the failure to allow inspection of the requested records, by
Friday September 20, 1996 requires the imposition of a penalty
against Big B not to exceed ten percent (10%) of the value of
shares owned by RDS pursuant to Section 10-2B-16.02(c)."
Complaint, P. 14 (emphasis added). This penalty could
potentially exceed one million dollars. Furthermore, this
litigation involves a tender offer for all the outstanding
shares of plaintff's common stock, which has an announced
equity value of approximately $330 million dollars. Delay in
receiving the information at issue in plaintiff's complaint,
and thus compliance with the requested injunctive relief, could
cost RDS significantly more than the $50,000.00 jurisdictional
amount. See In Ford Motor Co. Bronco II Products Liability
Litigation, 1996 WL 257570 (E.D. La. 1996) (value of an
injunction for removal may properly be based on defendant's
cost of compliance); Earnest v. General Motors Corp., 1996 WL
224507, at *3 (N.D. Ala. 1996) ("[C]ompliance with the
requested relief would cost the defendants much more than fifty
thousand dollars. Therefore, the court finds the amount in
controversy requirement of 28 U.S.C. ss. 1332 satisfied").
<PAGE>
9. Because the amount in controversy exceeds $50,000.00
and complete diversity exists, this case is a civil action of
which the United States District Courts have original
jurisdiction under 28 U.S.C. ss. 1332(a), and is therefore
properly removable pursuant to 28 U.S.C. ss. 1441.
10. Pursuant to 28 U.S.C. ss. 1446(d), a copy of this
Notice of Removal is being filed with the Clerk of the Circuit
Court of Jefferson County, and served upon counsel for the only
adverse party.
<PAGE>
WHEREFORE, RDS Acquisition Inc. hereby removes this
action, now pending in the Circuit Court of Jefferson County,
Alabama, Bessemer Division, to this Court pursuant to 28 U.S.C.
Section 1441(b) and respectfully requests that this Court take
cognizance, accept jurisdiction, and enter such orders or take
such steps as may be necessary to effect a true record of such
proceedings as may have been had in the Circuit Court of
Jefferson County, Alabama, Bessemer Division.
------------------------
Hobart A. McWhorter, Jr.
------------------------
Philip J. Carroll, III
------------------------
Matthew A. Aiken
Attorneys for
RDS Acquisition Inc
OF COUNSEL:
BRADLEY, ARANT, ROSE & WHITE
P.O. Box 830709
Birmingham, Alabama 35283-0709
(205) 521-8000
<PAGE>
CERTIFICATE OF SERVICE
I hereby certify that I have this date served the
foregoing Notice of Removal on Kaye H. Turberville, Esq.,
Sirote & Permutt, P.C., 2222 Arlington Avenue South,
Birmingham, Alabama 35255 by delivering a copy of same to her
on this __ day of September, 1996.
------------------------
OF COUNSEL
<PAGE>
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
IN RE: )
)
GENERAL ORDER FOR )
REFERRAL OF CIVIL MATTERS )
TO THE UNITED STATES )
MAGISTRATE JUDGES )
GENERAL ORDER
The increasing caseload being experienced by the Court,
coupled with the loss of a temporary judgeship, has caused the
Court to consider ways in which civil matters may be assigned
to provide more efficient and expedient handling. Full
utilization of the judicial skills of the magistrate judges of
the Court is one of the ways identified. The Court has and
continues to encourage litigants to consent to the exercise of
full, case-dispositive jurisdiction by magistrate judges. With
this in mind, it is, therefore, ORDERED as follows:
1. Beginning September 1, 1996, the Clerk shall assign
every eighth newly filed civil case, subject to the exclusions
identified below, to a magistrate judge randomly selected, who
shall be responsible for all pretrial management of the cases
assigned to him or her in this manner, including determination
of all non-dispositive motions in the case. The assignment
shall be to the magistrate judge and neither the court file,
the docket sheet, nor any other court record shall reflect an
assignment to a district judge, except as provided below.
2. Excluded from the civil cases assigned to magistrate
judges pursuant to this Order are Social Security appeals,
administrative agency appeals, bankruptcy matters (including
motions to withdraw the reference) and any case in which a
temporary restraining order or other emergency relief is
sought. Consistent with the present practice, magistrate judges
shall be referred all prisoner cases assigned to district
judges.
<PAGE>
3. The Clerk shall continue in all cases to forward to the
parties, in the manner provided by LR 73.2(a), notice of their
option to consent to jurisdiction by a magistrate judge under
28 U.S.C. ss. 636(c). If consent is given by all parties in a
case already assigned to a magistrate judge pursuant to this
Order, the case will be assigned to the magistrate judge for
all matters and he or she will exercise full dispositive
jurisdiction. If consent is given by all parties in a case
assigned to a district judge, the district judge may, in the
exercise of discretion, reassign it to a magistrate judge or
may decline to do so. In such a case reassigned to a magistrate
judge by the district judge, the magistrate judge shall
exercise full dispositive jurisdiction under ss. 636(c) and LR
73.2.
4. In cases assigned pursuant to this Order to a
magistrate judge for management of pretrial matters but for
which ss. 636(c) consent has not been given, parties retain the
right to seek review of a magistrate judge's rulings and orders
on non-dispositive matters in the manner provided by 26 U.S.C.
ss. 636(b)(1)(A) and Rule 72(a) of the Federal Rules of Civil
Procedure. In the event a party seeks review of such a matter,
the Clerk shall randomly select a district judge for that
purpose and that purpose only; the case will not be reassigned
for any other purpose to the district judge to whom a review of
a magistrate judge's order is referred. Each such order or
ruling by a magistrate judge on which a review is sought shall
be randomly referred to a district judge, who shall be
responsible only for reviewing the specific order or ruling in
question. The selection of the district judge shall be from a
special draw without regard to the court's divisions. During
and upon completion of the review by the district judge, the
magistrate judge shall retain management of all other pretrial
matters.
<PAGE>
5. In cases assigned pursuant to this Order to a
magistrate judge for management of pretrial matters but for
which ss. 636(c) consent has not been given by all parties, the
magistrate judge may deny motions for remand and motions to
dismiss for failure to state a claim. If the magistrate judge
believes any such motion is due to be granted he or she shall
prepare and file a report and recommendation. Upon the filing
of a report recommending the granting of such a motion, the
Clerk shall randomly select a district judge to review the
recommendation of the magistrate judge, any objections to it,
and to determine the motion. The selection of the district
judge will be from a special draw without regard to the court's
divisions and it shall be for the purpose only of reviewing the
particular motion the magistrate judge has recommended
granting. If the motion is granted, the district judge will
enter such orders as are appropriate. If the district judge
denies the motion, the magistrate judge shall resume management
of all other pretrial matters.
6. In cases assigned pursuant to this Order to a
magistrate judge for management of pretrial matters but for
which ss. 636(c) consent has not been given by all parties, the
magistrate judge shall prepare a report and recommendation on
all case-dispositive motions and other motions specified in ss.
636 (b)(1)(A). Upon the filing of a case-dispositive motion,
except those specified in the preceding paragraph, the
magistrate judge shall conduct such proceedings and enter such
orders as are necessary to bring the motion under submission.
When the motion in taken under submission, the magistrate judge
shall enter an order notifying the parties that the motion has
been taken under submission and that they must notify the Clerk
of Court in writing within fifteen (15) days whether they wish
for the magistrate judge to exercise ss. 636(c) jurisdiction
for all purposes including determination of the motion, or
whether they decline to consent to ss. 636(c) jurisdiction and
wish for the motion to be determined by a district judge. In
the event all parties consent to ss. 636(c) jurisdiction, the
<PAGE>
case will be assigned to the magistrate judge pursuant to LR
73.2 and he or she shall proceed to determine the motion and
exercise jurisdiction for all purposes, including trial and
final judgment. In the event one or more parties declines to
consent, the magistrate judge will prepare a report and
recommendation with regard to the motion and the Clerk will
randomly select a district judge to whom the case will be
reassigned for all further purposes. The selection of the
district judge will be from a special draw without regard to
the Court's divisions. Neither the magistrate judge nor the
district judge will be informed of the identity of any party
declining to consent to ss. 636(c) jurisdiction.
Notwithstanding the reassignment of a case to a district judge,
he or she remains free to make specific references of any
motion or matter to the magistrate judge pursuant to ss.
636(b)(1)(A) and (B) and LR 72.1.
