deMarcellus et al v. deMarcellus

Filing 6

ORDER that the Court declines to enter a scheduling order at this time concerning the certification and report 5 filed by the parties in this matter on July 30, 2013 and should the parties determine to consent to the jurisdiction of the magistrate judge that they file the Joint Stipulation of Consent to Exercise of Jurisdiction by a United States Magistrate Judge on or before August 14, 2013. Signed by Magistrate Judge Dennis Howell on 08/07/2013. (thh)

IN THE UNITED STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:13 CV 161

EDMOND DEMARCELLUS, Individually,
CLAIRE DEMARCELLUS PARIS,
Individually, and ADDCO
MANUFACTURING COMPANY, a
North Carolina Corporation,
Plaintiffs
v
ROLAND DEMARCELLUS,
Defendant

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ORDER

THIS MATTER is before the undersigned pursuant to a Certification and
Report of F.R.C.P.26(f) Conference and Joint Discovery Plan (#5) which was filed
on July 30, 2013. A review of the file in this matter shows that a Counterclaim
was filed on July 19, 2013 by the Defendant.

The time for replying to the

Counterclaim by the Plaintiffs has not expired. Fed. R. Civ. P. (12)(1)(B)
LCvR 16.1 states as follows:
(A) Initial Attorney’s Conference. As soon as is practicable, and
in any event not later than fourteen (14) days from joinder of the
issues (as defined in Section (D) below), the parties or their counsel
shall confer as provided by Fed. R. Civ. P. 26(f), and conduct an
“Initial Attorney’s Conference” (“IAC”). In addition, counsel shall
also discuss at such conference consent to magistrate judge
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jurisdiction. See LCvR 73.1(C).
The term “joinder of issues” are defined in LCvR 16.1(D):
(D) Joinder of the Issues. For the limited purpose of these Local
Civil Rules, “joinder of the issues” occurs when the final answer to a
complaint, third-party complaint, or crossclaim or the final reply to
counterclaim has been filed, or the time for doing so has expired.
Rule 12 motions contained in an Answer, but no supported by a brief,
act as placeholders and do not prevent joinder of the issues. Where
Rule 12 motions are filed and briefed, issues will not join until such
motions are resolved by the court, unless other ordered by the Court.
Due to the fact that the issues in this matter have not joined, the undersigned
declines at this time, to enter a scheduling order, but will do so when the issues
have joined.
In the certification and report filed by the parties, the parties state as follows:
“The parties have discussed the issue of consent to the jurisdiction of a U.S.
Magistrate Judge, and have no objection.” LCvR 16.1(C) states:
(C) Filing of Joint Stipulation of Consent to Magistrate
Jurisdiction. Where all parties agree to magistrate judge jurisdiction,
the Joint Stipulation of Consent to Exercise of Jurisdiction by a
United States Magistrate Judge shall be filed simultaneously with
either the CIAC as provided in Local Civil Rule 73.1(C), or within
five (5) days of the Court’s ruling on a motion to stay.
Should the parties determine to agree to consent to the jurisdiction of the
magistrate judge, the parties will have up to and including August 14, 2013 to file
the Joint Stipultion of Consent to Exercise of Jurisdiction by a United States

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Magistrate Judge as referenced in the above referenced Rule.
ORDER
IT IS, THEREFORE, ORDERED that the Court declines to enter a
scheduling order at this time concerning the certification and report (#5) filed by
the parties in this matter on July 30, 2013 and should the parties determine to
consent to the jurisdiction of the magistrate judge that they file the Joint Stipulation
of Consent to Exercise of Jurisdiction by a United States Magistrate Judge on or
before August 14, 2013.
Signed: August 7, 2013

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