Jin-Jo v. Washington Mutual Inc. et al

Filing 141

DECISION AND ORDER affirming Magistrate Judge McCarthy's decision and order. Case is referred back to Magistrate Judge for further proceedings. Signed by Hon. Richard J. Arcara on 4/15/2010. (JMB)

UNITED STATES DISTRICT COURT W E S T E R N DISTRICT OF NEW YORK

M E E JIN-JO, P la in tiff, D E C IS IO N AND ORDER 0 8 -C V -2 3 0 A v.

JPMC SPECIALTY MORTGAGE LLC, D e fe n d a n t.

T h is case was referred to Magistrate Judge Jeremiah J. McCarthy, p u rs u a n t to 28 U.S.C. § 636(b)(1). On October 13, 2009, plaintiff filed three m o tio n s . First, plaintiff filed a motion (Dkt. No. 98) to stay proceedings in this c a s e that accused Magistrate Judge McCarthy of unsubstantiated ex parte c o m m u n ic a tio n , favoritism, and discrimination. Second, plaintiff filed a motion (D k t. No. 101) to annul a text order from Magistrate Judge McCarthy adjourning a n oral argument, again accusing Magistrate Judge McCarthy of unsubstantiated e x parte communication. Third, plaintiff filed a motion (Dkt. No. 101) to issue d e fe n s e counsel a warning to refrain from what she perceived as false s ta te m e n ts , ethical violations, and ex parte communication. Additionally, on O c to b e r 13 and 23, 2009 (Dkt. Nos. 102, 113, 114), plaintiff filed motions to strike n o tic e s of appearance and to strike text orders from Magistrate Judge McCarthy th a t set briefing schedules for some of these motions and that scheduled a status

conference. Plaintiff rested these motions, again, on unsubstantiated claims of p re ju d ic e and ex parte communication. In a Decision and Order dated March 26, 2010 (Dkt. No. 137), Magistrate J u d g e McCarthy denied all of the above motions as meritless. On April 12, 2010, p la in tiff filed objections to the Decision and Order. In her objections, plaintiff, as s h e has on numerous occasions in this case, revisited an Order to Show Cause (D k t. No. 5) requiring her to explain why the Court had diversity jurisdiction over th e case when both she and a moving company named as a defendant in the c o m p la in t appeared to be New York citizens as of commencement of the case. The Court resolved the issue of subject matter jurisdiction over a year ago when it d is m is s e d (Dkt. No. 7) the moving company without prejudice. W h e th e r plaintiff s u b s e q u e n tly commenced an action in state court against that moving company is unknown. In any event, there is no reason to revisit that resolved issue. In her objections, plaintiff also repeated a misunderstanding of the role of m a g is tra te judges that she has asserted numerous times in the docket for this c a s e . Under 28 U.S.C. § 636(b)(1), district judges have the authority to refer p re tria l matters to magistrate judges regardless of the positions of the parties on s u c h referrals. The parties' positions on referrals of pretrial matters are irrelevant u n d e r that provision of the statute because the parties may present objections to th e district judge and because the district judge ultimately will preside over the tria l. Under 28 U.S.C. § 636(c), the parties are fully in control of whether they 2

want to consent to have a magistrate judge rule on dispositive motions and p re s id e over trial as if the magistrate judge were a district judge. Unless the p a rtie s file such a consent at some point, this Court will continue to presume that it will preside over any eventual trial in this case. B e c a u s e plaintiff's objections are meritless and addressed by clear legal a u th o rity, no response from defendant will be necessary. Pursuant to 28 U.S.C. § 636(b)(1)(A), the district court "may reconsider any pretrial matter under this [s e c tio n ] where it has been shown that the magistrate judge's order is clearly e rro n e o u s or contrary to law." As noted above, the Court has reviewed plaintiff's o b je c tio n s and Magistrate Judge McCarthy's Decision and Order. Upon such re vie w , the Court finds that Magistrate Judge McCarthy's Decision and Order is n e ith e r clearly erroneous nor contrary to law. A c c o rd in g ly, the Court affirms the Decision and Order. The case is referred back to Magistrate Judge McCarthy for further p r o c e e d in g s . SO ORDERED.

s/ Richard J. Arcara
HONORABLE RICHARD J. ARCARA UNITED STATES DISTRICT JUDGE DATED: April 15, 2010

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