Nicholaw v. Board of Supervisors

Filing 13

ORDER RE PLAINTIFF'S OBJECTION TO DISMISSAL ORDER. Signed by Judge Joseph C. Spero on December 20, 2011. (jcslc2, COURT STAFF) (Filed on 12/20/2011) (Additional attachment(s) added on 12/20/2011: # 1 Cert Serve) (klhS, COURT STAFF).

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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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ANDY NICHOLAW,

No. C-11-4272 JCS

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Plaintiff,
v.

ORDER RE PLAINTIFF’S OBJECTION TO
DISMISSAL ORDER

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For the Northern District of California

United States District Court

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BOARD OF SUPERVISORS,

[Docket Nos. 11, 12]

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Defendants.
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Plaintiff Andy Nicholaw has filed an “Objection to Order Dismissing Complaint” on the

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ground that the Defendants have not consented to the jurisdiction of the magistrate judge and thus

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this Court lacked jurisdiction to dismiss the action. Docket No. 11. The Court declines to consider

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Plaintiff’s objection as this matter has been dismissed. Plaintiff’s “Motion for Default Judgment to

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Compel Performance” (Docket No. 12) is also moot as this case has been dismissed.

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The Court does not require the consent of the defendants in order to properly dismiss the

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action as frivolous because defendants have not been served, and, as a result, are not parties to the

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action. See Neals v. Norwood, 59 F.3d 530, 532 (5th Cir.1995) (holding that magistrate judge had

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jurisdiction to dismiss prison inmate’s action under 42 U.S.C. § 1983 as frivolous without consent of

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defendants because defendants had not been served yet and therefore were not parties); see also,

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Merino v. Saxon Mortg. Inc., 2011 WL 794988, *1 (N.D. Cal. Mar 1, 2011) (“Defendants that have

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not been served are not parties under the meaning of 28 U.S.C. § 636(c), and therefore, their consent

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is not necessary for the Court to rule on this dispositive motion.”).

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In the present case, Plaintiff consented to magistrate jurisdiction. Because the defendants

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have not been served, they are not parties and the Court had jurisdiction to enter the dismissal order.

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Dated: December 20, 2011

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______________________________
JOSEPH C. SPERO
United States Magistrate Judge

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For the Northern District of California

United States District Court

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