Castello v. Superior Court County of Alameda

Filing 7

ORDER RE CONSENT TO JURISDICTION. Signed by Judge James Larson on 1/16/09. (jlsec, COURT STAFF) (Filed on 1/16/2009)

1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

United States District Court

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For the Northern District of California

EVE DEL CASTELLO, Plaintiff, v. SUPERIOR COURT OF ALAMEDA COUNTY, Defendant. ________________________________/

No. C 09-0013

JL

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ORDER RE CONSENT TO JURISDICTION

On January 5, 2009, Plaintiff filed her complaint in this case, along with her application to file without payment of the filing fee, in forma pauperis, or "IFP." On January 8, she filed her consent to the jurisdiction of this Court pursuant to 28 U.S.C. §636(c) and Civil Local Rule 73. On January 13, this Court issued its order denying her IFP application and on January 15th she filed her declination to proceed and request for reassignment to a district court judge. Withdrawal of consent to the jurisdiction of the magistrate judge in civil cases is not permitted except in extraordinary circumstances, Fellman v. Fireman's Fund Ins. Co., 735 F.2d 55, 58 (2d Cir. 1984). The court in that case held that once a case is referred to a magistrate under section 636(c), the reference can be withdrawn only by the district court,

C-09-0013 ORDER RE CONSENT

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and only "for good cause shown on its own motion, or under extraordinary circumstances shown by any party." 28 U.S.C. § 636(c)(6) (emphasis added). Id. The statute also does not contemplate a conditional consent. Carter v. Sea Land Services, Inc., 816 F.2d 1018, 1020 (5th Cir. 1987) (court would not "read into the statute a rule that would allow a party to express conditional consent . . . thereby obtaining what amounts to a free shot at a favorable outcome or a veto of an unfavorable outcome.") This view was adopted by the Ninth Circuit in Dixon v. Ylst, 990 F.2d 478, 480 (9th Cir. 1993). This appears to be what is happening in this case: Plaintiff consented, obtained an unfavorable ruling, and now withdraws her consent. Plaintiff has not advised the Court of any extraordinary circumstances, that her consent was somehow involuntary, or of any other reason she should be permitted to withdraw her consent to this Court's jurisdiction. Plaintiff may have thirty days in which to advise the Court of any such circumstances. If Plaintiff fails to respond or provides an inadequate response, her declination and request for reassignment will be vacated. IT IS SO ORDERED. DATED: January 16, 2009 __________________________________ James Larson Chief Magistrate Judge

United States District Court

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For the Northern District of California

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C-09-0013 ORDER RE CONSENT

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