Rosales Aniceto v. Foulk

Filing 22

ORDER signed by Magistrate Judge Kendall J. Newman on 1/15/2014 DISREGARDING the 1/7/2014 19 decline to consent form; and the Clerk shall remove the district judge assignment. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ISMAEL ROSALES ANICETO,

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No. 2:13-cv-1819 KJN P

Petitioner,

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v.

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FRED FOULK,

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ORDER

Respondent.

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Petitioner is a state prisoner proceeding through counsel with a petition for writ of habeas

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corpus. On September 13, 2013, petitioner consented to proceed before the undersigned for all

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purposes. See 28 U.S.C. § 636(c). On October 3, 2013, respondent consented to proceed before

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the undersigned for all purposes. (ECF No. 10.)

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On January 7, 2014, newly-assigned counsel for respondent filed a form attempting to
decline the jurisdiction of the undersigned. (ECF No. 19.)

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“The right to adjudication before an Article III judge is an important constitutional right.

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However, this right, like other fundamental rights, can be waived” pursuant to the consent of the

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parties under 28 U.S.C. § 636(c). United States v. Neville, 985 F.2d 992, 999 (9th Cir.1993)

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(citations omitted); Dixon v. Ylst, 990 F.2d 478, 479-80 (9th Cir. 1993). Significantly, “there is

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no absolute right to withdraw consent once granted.” Neville, 985 F.2d at 999. Rather, a request

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to withdraw consent will be granted only upon a showing of good cause or extraordinary
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circumstances. See 28 U.S.C. § 636(c)(4) (“The court may, for good cause shown on its own

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motion, or under extraordinary circumstances shown by any party, vacate a reference of a civil

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matter to a magistrate judge under this subsection”). These requirements are strictly construed.

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See, e.g., Brook, Weiner, Sered, Kreger & Weinberg v. Coreq, Inc., 53 F.3d 851, 852 (7th Cir.

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1995) (party's legal successor bound by party's consent to jurisdiction of magistrate judge).

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Here, counsel for respondent simply signed a court form, and did not show good cause for

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the reassignment request. It is unclear whether newly-assigned counsel was aware that the

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previously-assigned counsel had consented to the jurisdiction of the undersigned. Accordingly,

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the decline to consent form is disregarded, and the Clerk of the Court is directed to remove the

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district judge assignment.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The January 7, 2014 decline to consent form (ECF No. 19) is disregarded; and

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2. The Clerk of the Court is directed to remove the district judge assignment.

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Dated: January 15, 2014

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/anic1819.dec

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