Bourne v. Arruda

Filing 77

ORDER denying 71 Motion to Amend 67 Order on Motion for Reconsideration; granting 75 Motion for Leave to File Reply to Defendant's Objection to Plaintiff's Motion to Amend Order Dated August 4, 2011. Clerk is directed to docket the reply memorandum (75-1) as filed upon this date. So Ordered by Magistrate Judge Landya B. McCafferty.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Samuel J. Bourne
v.

Civil No. 10-cv-393-LM

John R. Arruda, Jr., et al.

O R D E R
Before the court is plaintiff Samuel Bourne’s motion (doc.
no. 71) to amend the court’s August 4, 2011, order and
plaintiff’s motion for leave to file a reply in support of that
motion (doc. no. 75).

Defendants have objected to the motion to

amend (doc. no. 73), and to the motion for leave to file a reply
(doc. no. 76).
I.

Motion for Leave to File Reply
The court finds that the reply memorandum (doc. no. 75-1)

clarifies Bourne’s intent in filing the underlying motion (doc.
no. 71), and thus warrants consideration in connection with that
motion.

The court therefore grants plaintiff’s motion for leave

to file the reply memorandum (doc. no. 75), and the clerk is
directed to docket the reply memorandum (doc. no. 75-1),
attached to that motion, as if filed on the date of this order.

II.

Motion to Amend Court Order
In the motion to amend a court order (doc. no. 71), Bourne

requests that the district judge review the magistrate judge’s
order granting defendants’ motion to dismiss certain claims, and
that the district judge reinstate the dismissed claims.

Bourne

has asserted that such review and reinstatement of claims is
warranted because “mistakes, inadvertence, and excusable
neglect” underlie the court’s dismissal of Bourne’s claims.
Plf’s. Mot. to Am. (doc. no. 67) at 2.

Bourne cites Fed. R.

Civ. P. 73(b)(3) and Fed. R. Civ. P. 60(b) as authority for the
district judge’s intervention in this case.

The entire case is

before the undersigned magistrate judge upon the parties’
consent.

See Notice of Consent to Jurisdiction (doc. no. 17);

see also Defs.’ Objection (doc. no. 44), at 2 (noting consent of
all parties to magistrate judge’s jurisdiction); see generally
28 U.S.C. § 636(c).
A consent-based reference of a case to a magistrate judge
results in the magistrate judge having full jurisdiction over
the case, analogous to the authority of the district judge over
a pending case.

See Roell v. Withrow, 538 U.S. 580, 584 (2003)

(consent-based referral under § 636(c)(1) “gives magistrate
judge full authority over dispositive motions, conduct of trial,
and entry of final judgment, all without district court
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review”).

The district judge does not generally play any

supervisory role in such a case, except as authorized by 28
U.S.C. § 636(c)(4) and Fed. R. Civ. P. 73(b)(3) (motion to
vacate referral may be granted by district judge upon showing of
extraordinary circumstances).

See Peer v. Lewis, No. 06-60146-

CIV, 2011 WL 3300137, *5 (S.D. Fla. Aug. 2, 2011) (“Once consent
has been given for a full referral under 28 U.S.C. § 636(c), the
district judge’s supervisory authority is limited to
consideration of timely motions to vacate the referral.”)
Bourne has clarified that he filed the subject “motion to
amend” (doc. no. 71) with the intent of requesting “the District
Court Judge to review the Magistrate Judge’s substandard Court
order (document No. 67) due to obvious mistakes, inadvertence,
and neglect,” thereby offering the district court an opportunity
to correct errors Bourne perceives in the magistrate judge’s
rulings.

See Plf.’s Reply to Defs.’ Obj. to Plf.’s Mot. to Am.

Ord. dated Aug. 4, 2011 (doc. no. 75-1), at 1.

Such piecemeal,

ruling-by-ruling oversight by the district judge, however, is
not available here where the magistrate judge is presiding upon
the parties’ consent under 28 U.S.C. § 636(c)(1).
Because Bourne’s motion (doc. no. 71) does not specifically
request that the district judge vacate the referral of the case,
this court declines to construe the motion as seeking district
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court intervention under Fed. R. Civ. P. 73(b)(3) and 28 U.S.C.
§ 636(c)(4), and instead construes the motion as seeking
reconsideration of an allegedly erroneous interlocutory order.1
A party in this court seeking reconsideration of an
interlocutory order must show that the order was based on a
manifest error of law or fact.

See LR 7.2(e); cf. Farr Man &

Co. v. M/V Rozita, 903 F.2d 871, 874-75 (1st Cir. 1990)
(district court has inherent power, not limited by Fed. R. Civ.
P. 60(b), to reconsider interlocutory orders).

Upon duly

reviewing the arguments and issues raised by Bourne, the court
finds no error in the underlying order (doc. no. 55), or in the
1

The court notes that Bourne has failed to show any
extraordinary circumstances that could warrant granting him
leave to withdraw his consent to the magistrate judge’s
jurisdiction. See Fed. R. Civ. P. 73(b)(3) and 28 U.S.C.
§ 636(c)(4) (providing that district court may vacate consentbased reference for good cause upon its own motion, or upon
party’s motion only if party has shown that extraordinary
circumstances warrant such action). Here, Bourne has asserted
that in denying his motion for reconsideration (doc. no. 57),
the magistrate judge denied him due process. The aspect of the
underlying order that Bourne asserts denied him due process
consists of this court’s admonishing Bourne for failing to seek
the concurrence of opposing counsel before filing a motion to
reconsider. That admonition did not deprive Bourne of any
protected interest and, therefore, cannot be construed as a
denial of due process. Moreover, a party’s contention that an
order was erroneous does not suffice to show any circumstance
warranting the withdrawal of consent or the revocation of a
referral. See Rivera v. Rivera, 216 F.R.D. 655, 661 & n.33 (D.
Kan. 2003) (motion to withdraw consent to magistrate judge’s
jurisdiction, citing only dissatisfaction with prior court
orders, does not show extraordinary circumstances warranting
relief requested).
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subsequent order denying Bourne’s first motion to reconsider
that underlying order (doc. no. 67), upon which any further
reconsideration might be warranted.

Therefore, the “motion to

amend” (doc. no. 71) is denied.

Conclusion
For the foregoing reasons, the motion for leave to file the
reply memorandum (doc. no. 75) is GRANTED.

The clerk is

directed to docket the reply memorandum (doc. no. 75-1) as filed
upon this date.

Bourne’s “motion to amend court order dated

Aug. 4, 2011” (doc. no. 71) is DENIED.
SO ORDERED.

__________________________
Landya McCafferty
United States Magistrate Judge
September 28, 2011
cc:

Samuel J. Bourne, pro se
Brian J.S. Cullen, Esq.

LBM:nmd

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