Little v. Barnes et al
ORDER Denying Defendants' 41 Motion to Vacate Consent and Reference. Signed by District Judge Thomas L. Ludington. (Sian, M)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
BILL O. LITTLE,
Case No. 14-cv-12378
Honorable Thomas L. Ludington
WILLIAM J. BARNES, MIKE BRYCE and
ORDER DENYING DEFENDANTS’ MOTION TO
VACATE CONSENT AND REFERENCE
The above-captioned matter was initiated on August 3, 2015, when Plaintiff Bill O. Little
filed his complaint against Defendants William J. Barnes and Mike Bryce. ECF No. 1. Plaintiff
alleges a single count of cruel and unusual punishment pursuant to 42 U.S.C. § 1983. Id.
Specifically, Plaintiff alleges that Defendants’ treatment of him at the Saginaw County Parole
Office after he underwent surgery for a gunshot wound amounted to cruel and unusual
punishment in violation of the Eight Amendment. Id.
On July 23, 2014, Plaintiff filed a notice of consent and reference of a civil action to a
magistrate judge. ECF No. 8.
In that notice, all three parties through counsel voluntarily
consented to have a United States Magistrate Judge conduct all proceedings in the case,
including trial and the entry of final judgment. Id. Pursuant to that notice, this Court issued an
order referring all proceedings to United States Magistrate Judge Patricia T. Morris. ECF No. 9.
On October 15, 2014, Plaintiff filed a motion for leave to file a first amended complaint
to add an additional party. ECF No. 14. Judge Morris granted that motion on March 17, 2015
and directed Plaintiff to file his first amended complaint and add the additional party. ECF No.
29. Plaintiff filed his amended complaint on March 18, 2015, adding William Pigott as an
additional Defendant. ECF No. 30.
Defendant Pigott did not explicitly consent in writing to
have a United States Magistrate Judge conduct all proceedings in the case as required by Local
Rule 73.1(e). However, the same attorney that represented the two originally named Defendants
appeared on his behalf.
Defendant Pigott, along with the originally named Defendants, filed an answer to the
amended complaint on April 8, 2015. ECF No. 33. All Defendants, including Defendant Pigott,
then filed a motion for summary judgment on July 10, 2015. ECF No. 35. Judge Morris denied
that motion on August 31, 2015. ECF No. 39.
Pursuant to a stipulation filed by the parties on September 21, 2015, Judge Morris issued
an order permitting the substitution of Defendants’ Attorney.
ECF No. 40.
Assistant Attorney General Clifton B. Schneider was substituted for Assistant Attorney General
James T. Farrell as counsel for all Defendants. Id. Attorney Schneider then filed the current
motion to vacate consent and reference to the Magistrate Judge on behalf of all Defendants. ECF
No. 41. Defendants argue that, because Defendant Piggot did not explicitly consent to the
Magistrate Judge jurisdiction, Judge Morris does not have jurisdiction to decide case-dispositive
issues. Id. Defendants thus move this Court to vacate the order of reference. Id. The motion will
The Federal Magistrate Act of 1979 (Federal Magistrate Act) expanded the power of
magistrate judges by authorizing them to conduct “any or all proceedings in a jury or nonjury
civil matter and order the entry of judgment in the case,” as long as they are “specially
designated ... by the district court” and are acting “[u]pon the consent of the parties.” 28 U.S.C. §
636(c)(1). The Federal Magistrate Act mandates that “Rules of court for the reference of civil
matters to magistrate judges shall include procedures to protect the voluntariness of the parties’
consent.” Id. at § 636(c)(2). Pursuant to that mandate, Local Rule 73.1(e) provides:
A party added to a civil case after reference of the case to a magistrate judge on
consent will be given an opportunity to consent to the continued exercise of casedispositive authority by the magistrate judge. The clerk will give the party a copy
of the form described in (b). A party choosing to consent must, within 28 days of
appearance, file with the clerk the form signed by the party or attorney. The case
will be returned to the district judge for all further proceedings unless a form is
properly signed and filed.
L.R. 73.1(e). Furthermore, Federal Rule of Civil Procedure requires that there must be a record
made of any consent to a magistrate judge under 18 U.S.C. § 636(c). Fed. R. Civ. P. 73(a). This
Court may vacate a reference of a civil matter to a magistrate judge for good cause shown on its
own motion or if a party shows extraordinary circumstances. See 28 U.S.C. § 636(c)(4), Fed. R.
Civ. P. 73(b)(3).
Defendants contend that extraordinary circumstances exist in the present case warranting
an order vacating the reference to Judge Morris. Specifically, Defendants allege that, because
Defendant Pigott never consented to the continued exercise of case-dispositive authority by the
magistrate judge as required by L.R. 73.1(e), Judge Morris does not have jurisdiction to preside
over the matter.
In Roell v. Withrow, 538 U.S. 580, (2003), the United States Supreme Court held that
consent to proceedings before a magistrate judge can be inferred from a party’s conduct during
litigation. In Roell, the District Judge referred a case to a magistrate judge upon the consent of
the Plaintiff, but before receiving the consent from any of the three defendants. Id. at 583. After
the summons had issued, only one of the defendants gave written consent to the referral. Id. The
other two defendants, who were represented by an assistant in the attorney general’s office, filed
answers but neither consented nor objected to the referral. Id. Following a jury verdict, the
magistrate judge entered judgment for the defendants, and the plaintiff appealed. Only then, after
the Court of Appeals sua sponte remanded the case for the purpose of determining if the
defendants had consented to the magistrate judge’s exercise of jurisdiction, did the remaining
two defendants file formal letters of consent to the reference. Id.
The Magistrate Judge, District Court Judge, and Fifth Circuit Court of Appeals concluded
that, although the defendants had implicitly consented to Magistrate Judge jurisdiction, implicit
consent was insufficient to confer jurisdiction under the Magistrate Judge Act. The Supreme
Court disagreed, finding that consent to a magistrate judge reference may be inferred from a
party’s conduct during the course of the litigation. Id. The Supreme Court held that implied
consent may be found where “the litigant or counsel was made aware of the need for consent and
the right to refuse it, and still voluntarily appeared to try the case before the Magistrate Judge.”
Id. at 590. The Court explained that, “[i]nferring consent in these circumstances thus checks the
risk of gamesmanship by depriving parties of the luxury of waiting for the outcome before
denying the magistrate judge’s authority.
Judicial efficiency is served; the Article III right is
substantially honored.” Id.
In the present case, Defendant Pigott implicitly consented to Magistrate Judge Morris’s
authority. Defendant Pigott’s counsel was also counsel for Defendants Barnes and Bryce.
Accordingly, Pigott’s counsel was aware of the need for consent and the right to refuse it. Not
only did Defendant Pigott file an answer to the amended complaint, ECF No. 33, but he joined in
a motion for summary judgment filed before Judge Morris. ECF No. 35. Only after that motion
was denied did Defendant challenge the jurisdiction of Judge Morris. This is precisely the kind
of conduct that the Roell Court aimed to prevent. Because Defendant Pigott implicitly consented
to the reference to Judge Morris, Defendants’ motion to vacate the consent reference will be
Accordingly, it is ORDERED that Defendants’ motion to vacate consent and reference
to a Magistrate Judge to conduct all proceedings is DENIED.
s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: November 18, 2015
PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on November 18, 2015.
s/Michael A. Sian
MICHAEL A. SIAN, Case Manager
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