Holland v. Gary The City of et al
Filing
374
OPINION AND ORDER: Court DENIES 368 Request for De Novo Review of the case by the District Court Judge Prior to Appeal. Signed by Magistrate Judge Paul R Cherry on 6/6/2014. cc: Holland (tc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
ROBERT HOLLAND,
Plaintiff,
v.
THE CITY OF GARY, et al.,
Defendants.
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CAUSE NO.: 2:10-CV-454-PRC
OPINION AND ORDER
This matter is before the Court on a Request for De Novo Review of the case by the District
Court Judge Prior to Appeal [DE 368], filed by pro se Plaintiff Robert Holland on May 5, 2014. No
response has been filed, and the time to do so has passed.
Plaintiff asks that an Article III judge review this Court’s decisions de novo. He contends that
Defendant City of Gary Chief of Police never consented to have this case assigned to a United States
Magistrate Judge under 28 U.S.C. § 636(c) and that the undersigned magistrate judge accordingly
did not have jurisdiction to enter final judgment in this case.
The undersigned was advised on May 19, 2011, that all parties had consented to magistrate
judge jurisdiction. There is accordingly no Article III judge currently assigned to this case. Plaintiff
does not cite any cases or other authority—and the Court cannot find any—stating that objections
to consent jurisdiction must be heard by an Article III judge. Indeed, magistrate judges in this district
routinely rule on their own jurisdiction when a new party is added to a case and does not consent
to magistrate judge jurisdiction. Cf. Peer v. Lewis, 06-60146-CIV, 2011 WL 3300137 at *9–10 (S.D.
Fla. Aug. 2, 2011) (analyzing whether a magistrate judge had consent jurisdiction) (Torres, M.J.).
The Court construes this motion as seeking relief under Federal Rule of Civil Procedure
60(b)(4), which provides that the Court “may relieve a party or its legal representative from a final
judgment, order, or proceeding [if] the judgment is void.” Fed. R. Civ. P. 60(b). Unlike Rule
60(b)(1)–(3) motions, which must be made “no more than a year after the entry of the judgment or
order or date of the proceeding,” Rule 60(b)(4) motions may be filed “within a reasonable time.” Id.
The Court notes that “the pendency of an appeal does not affect the district court’s power to grant
Rule 60 relief.” Stone v. I.N.S., 514 U.S. 386, 401 (1995) (citing Standard Oil Co. of Cal. v. U. S.,
429 U.S. 17, 18–19 (1976); 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 2873 (3d ed. 1994 Supp.)).
Plaintiff does not cite any specific reason why he thinks Defendant City of Gary Chief of
Police did not consent to magistrate judge jurisdiction, but his objection presumably arises from a
discrepancy between the appearance filed by attorney Donald P. Levinson and the docket entry for
that appearance. On December 17, 2010, attorney Levinson filed an appearance on behalf of a
handful of defendants. The entry on the docket (which is entered into the electronic filing system
by the attorney) states that attorney Levinson appeared on behalf of all the Gary Defendants: Rudy
Clay, the City of Gary, Johnny Gill, and the City of Gary Chief of Police. See Docket Entry 21. But
the appearance document itself does not list the City of Gary Chief of Police. Id.
The implication is that if the Gary Chief of Police did not appear, his purported attorney
could not have consented to magistrate judge jurisdiction on his behalf. Plaintiff has raised a similar
objection before, contending that the Gary Chief of Police, having never appeared, thus also never
answered or defended himself in this case. The Court rejected this contention in a March 5, 2013
Opinion and Order, remarking that the docket showed that the Gary Chief of Police had, by counsel,
filed an Answer (Docket Entry 28) and Motions for Summary Judgment (Docket Entries 135 and
244). The Court reaffirms this finding.
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To enter an appearance, a party is generally required to make some submission or
presentation to the court where the suit is pending. N. Cent. Ill. Laborers’ Dist. Council v. S.J.
Groves & Sons Co., Inc., 842 F.2d 164, 168 (7th Cir. 1988) (citing Wright & Miller, supra, § 2686);
Philos Technologies, Inc. v. Philos & D, Inc., 645 F.3d 851, 858 (7th Cir. 2011)). Between the
docket entry accompanying the appearance document and the Answer, there is ample support for
a finding that the City of Gary Chief of Police appeared by attorney Donald Levison prior to May
19, 2011, when this Court was advised that all parties, including the City of Gary Chief of Police,
had consented to magistrate judge jurisdiction. The consent jurisdiction of the undersigned
magistrate judge over this case thus remains intact.
The remaining portions of Plaintiff’s motion are (yet another) attempt to revive claims this
Court ruled against on summary judgment and in a handful of Motions to Reconsider. For the
reasons articulated by this Court in those prior orders, the Court again finds Plaintiff’s arguments
to be without merit. For these reasons, the Court DENIES the Request for De Novo Review of the
case by the District Court Judge Prior to Appeal [DE 368].
SO ORDERED this 6th day of June, 2014.
s/ Paul R. Cherry
MAGISTRATE JUDGE PAUL R. CHERRY
UNITED STATES MAGISTRATE JUDGE
cc:
All counsel of record
Plaintiff, pro se
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