-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, OChbRIHgXts611AT5baPMgFS7QQ6CNomsmKC+ARhGhgJ+x6BSLxL6/ca/2C1Ty2G qHu9DnHxnqKTLG6PuMCD2A== 0000950157-96-000260.txt : 19960921 0000950157-96-000260.hdr.sgml : 19960921 ACCESSION NUMBER: 0000950157-96-000260 CONFORMED SUBMISSION TYPE: SC 14D1/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 19960919 SROS: NASD GROUP MEMBERS: RDS ACQUISITION INC. GROUP MEMBERS: REVCO D S INC SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: BIG B INC CENTRAL INDEX KEY: 0000352720 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-DRUG STORES AND PROPRIETARY STORES [5912] IRS NUMBER: 630632551 STATE OF INCORPORATION: AL FISCAL YEAR END: 0131 FILING VALUES: FORM TYPE: SC 14D1/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-34305 FILM NUMBER: 96631978 BUSINESS ADDRESS: STREET 1: 2600 MORGAN ROAD S E CITY: BIRMINGHAM STATE: AL ZIP: 35023 BUSINESS PHONE: 2054243421 MAIL ADDRESS: STREET 1: P O BOX 10168 CITY: BIRMINGHAM STATE: AL ZIP: 35202 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: REVCO D S INC CENTRAL INDEX KEY: 0000083496 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-DRUG STORES AND PROPRIETARY STORES [5912] IRS NUMBER: 341527876 STATE OF INCORPORATION: DE FISCAL YEAR END: 0602 FILING VALUES: FORM TYPE: SC 14D1/A BUSINESS ADDRESS: STREET 1: 1925 ENTERPRISE PKWY CITY: TWINSBURG STATE: OH ZIP: 44087 BUSINESS PHONE: 2164259811 MAIL ADDRESS: STREET 1: 1925 ENTERPRISE PKWY CITY: TWINSBURG STATE: OH ZIP: 44087 SC 14D1/A 1 AMENDMENT NO. 1 TO SCHEDULE 14D-1 ===================================================================== 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 ===================================================================== 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). 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 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) EX-99.G1 2 COMPLAINT 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 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 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 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 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. 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 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 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. 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 EX-99.G2 3 NOTICE OF REMOVAL 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 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 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: 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). 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. 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"). 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. 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 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 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. 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. 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 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. -----END PRIVACY-ENHANCED MESSAGE-----