Malibu Media, LLC v. DOE

Filing 118

ORDER OVERRULING 117 Objection to Magistrate Judge Order. This Court has no authority to consider the remaining objections. Signed by Chief Judge Algenon L. Marbley on 9/3/2021. (cw)

Case: 2:14-cv-00821-ALM-CMV Doc #: 118 Filed: 09/03/21 Page: 1 of 5 PAGEID #: 1528

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
MALIBU MEDIA, LLC,

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Plaintiffs,
v.
DAVID RICUPERO,
Defendants.

Civil Action. 2:14-cv-821
Chief Judge Algenon L. Marbley
Magistrate Judge Vascura

OPINION & ORDER
This matter comes before the Court on Defendant’s Objection to the Magistrate Judge’s
Order on his motion to redact. (ECF No. 117). For the reasons that follow, Defendant’s
jurisdictional objection is OVERRULED and this Court has no authority to consider the
remaining objections.
I.

BACKGROUND

Plaintiff Malibu Media, LLC commenced this action alleging that Defendant David
Ricupero illegally downloaded some of its copyrighted materials. (ECF No. 1). Mr. Ricupero filed
a counterclaim seeking a declaratory judgment that he had not infringed Plaintiff’s copyright. (ECF
No. 7). This Court granted Plaintiff’s motion to dismiss the counterclaim as redundant to Malibu’s
claim. (ECF No. 22). Plaintiff subsequently moved to dismiss its claims voluntarily, which this
Court granted over Defendant’s objection. (ECF No. 91). Defendant appealed the dismissal of
Plaintiff’s claims, as well as his counterclaim. The Sixth Circuit affirmed this Court’s decision on
August 28, 2017. (Malibu Media, LLC v. Ricupero, 6th Cir. Case No. 16-3628, ECF No. 51).
Nearly three years later, Defendant moved the Sixth Circuit to seal its opinion, or, in the
alternative, to redact his full name from the decision. (Case No. 16-3628, ECF No. 55) (“Appellate

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Motion”). The Sixth Circuit granted that motion on July 10, 2020 and issued a sealed order. This
order reads in its entirety: “UPON CONSIDERATION of Defendant’s motion to redact the court’s
opinion of August 28, 2017, IT IS ORDERED that the motion be, and it hereby is, GRANTED.
The redacted opinion will reissue nunc pro tunc.” (Case No. 16-3628, ECF No. 59-2.).
Defendant then moved this Court to redact his full name “from the docket and all briefing
and court orders.” (ECF Nos. 114–15). Mr. Ricupero’s motion was one paragraph long, seeking
“[i]dentical relief” as was granted by the Sixth Circuit. (ECF No. 114). He then attached the
Appellate Motion he had filed as an exhibit. (ECF No. 114-1). Although the Appellate Motion
persuaded the Sixth Circuit to redact Defendant’s name from the Appellate Decision, the
Magistrate Judge denied Mr. Ricupero’s Motion to Redact, finding that Appellate Motion was
insufficient to obtain the relief Defendant seeks in this Court. (ECF No. 116). In particular, the
Magistrate found that Mr. Ricupero was not seeking identical relief because he was seeking to
redact every mention of his name from more than 100 documents. (Id. at 2–3). By contrast, his
Appellate Motion sought redaction of a single document. Additionally, the Magistrate found that
his motion did not make any showing that any documents from this case appear in search results
for his name. (Id. at 3). Finally, the Magistrate found that, even if Mr. Ricupero had made such a
showing, he could not overcome the presumption of public access to court records. (Id.).
Accordingly, the Magistrate denied his motion. Defendant’s objection then followed.
II.

LAW & ANALYSIS

Magistrate judges play a vital role in the federal court system, including by making
recommendations to district judges as to the resolution of pretrial matters or by presiding over
cases in their entirety when parties have consented properly. Rule 72 of the Federal Rules of Civil
Procedure sets forth when a district court may review objections to orders by a magistrate judge.

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For pretrial motions “not dispositive of a party’s claim or defense” referred to and determined by
a magistrate, the district court may review that decision for clear error after receiving a timely
objection. Fed. R. Civ. P. 72(a). A magistrate judge may also hear pretrial matters dispositive to a
claim or defense and issue a report and recommendation; a district judge must conduct a de novo
review of “any part of the magistrate judge’s disposition” to which a proper objection was raised.
Fed. R. Civ. P. 72(b).
When all parties consent, the district judge to whom the case is assigned may refer a civil
case to a full-time magistrate judge. 28 U.S.C. § 636(c)(1). A magistrate presiding over a case
pursuant to 28 U.S.C. § 636 “may conduct any or all proceedings in a jury or nonjury civil matter
and order the entry of judgment in the case” when designated to exercise such jurisdiction. Id.
Unlike nonconsensual referrals of pretrial matters to magistrate judges, over which the district
court retains the ability to accept or reject the magistrate’s recommendations, a consensual referral
under 28 U.S.C. § 636 gives the magistrate judge “full authority over dispositive motions, conduct
of trial, and entry of final judgment, all without district court review.” Roell v. Withrow, 538 U.S.
580, 585 (2003). In these instances, judgments entered by the designated magistrate judge are to
be treated as a final judgment of the district court, appealable “in the same manner as an appeal
from any other judgment of a district court.” 28 U.S.C. § 636(c)(3).
The parties submitted a Rule 26(f) report on December 2, 2014, in which the parties
indicated their unanimous consent to the jurisdiction of the United States Magistrate Judge
pursuant to 28 U.S.C. § 636(c). (ECF No. 11). Counsel for Plaintiff and Defendant signed off on
the filing. (Id.). This Court subsequently referred this case to U.S. Magistrate Judge Terence P.
Kemp, who had been assigned as the Magistrate in the case. (ECF No. 14). Litigation proceeded
before Judge Kemp, including the eventual dismissal orders which were the subject of Defendant’s

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appeal in 2017. Judge Kemp then retired. After the Sixth Circuit issued its sealed order allowing
redaction of the opinion on its docket in August 2020, Mr. Ricupero turned his sights to this Court’s
docket. On August 6, 2020, he filed a motion to file the motion at issue under seal. (ECF No. 112).
Magistrate Judge Vascura, who had been assigned to the case during its nearly three-year
dormancy, issued an order granting Defendant’s request. (ECF No. 113).
On notice that Magistrate Judge Vascura, rather than Magistrate Judge Kemp, was now
overseeing the case, Mr. Ricupero then filed the motion to redact his name from the docket and all
briefing on September 4, 2020. (ECF No. 114). She subsequently denied his request on October
26, 2020. (ECF No. 116). Mr. Ricupero then filed the pending objection, asserting that she had no
jurisdiction to rule on his motion to redact. (ECF No. 117). He argues that “where parties consent
to the jurisdiction of a specifically[] named magistrate judge, any subsequent disposition by
another magistrate judge without the consent of the parties is improper and must be vacated.” (Id.
at 5). In support of this proposition, he relies on precedents from the Fifth and Seventh Circuits.
He also argues that the parties consented “to the jurisdiction of the United States Magistrate
Judge,” such that this language constituted consent only to the jurisdiction of the Magistrate then
presiding over the case. (Id.).
In addition to the fact that these precedents are out of circuit, they are also clearly
distinguishable from the case sub judice. In Kalan v. City of St. Francis, the parties completed a
consent form that specified a particular magistrate judge by name, rather than simply including a
more general reference to a magistrate judge. 274 F.3d 1150, 1151–52 (7th Cir. 2001). The Seventh
Circuit held, under these facts, that consent to a particular magistrate judge by name did not
constitute consent to a different magistrate judge. Id. at 1153–54. The Kalan court relied on the
Fifth Circuit’s earlier ruling in Mendes Junior Int’l Co. v. M/V Sokai Maru, 978 F.2d 920 (5th Cir.

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1992), in reaching its decision. In Mendes Junior, the parties had also consented in a form
specifically identifying a magistrate judge by her name. 978 F.2d at 921. In such cases, the parties’
initial consent to the specific, named magistrate judges could not necessarily be inferred to provide
consent to a magistrate judge in general. Here, as mentioned, the parties did not cabin their consent
to “Magistrate Judge Kemp,” they consented to a magistrate judge in general. Mr. Ricupero
similarly grasps at straws in his argument about the distinction between the articles “the” and “a”
or “an” in a consent order, in which he again cites to no authorities on point.
Accordingly, this Court has no jurisdiction to review the objections to the Magistrate
Judge’s orders, as this case has been referred to her for all proceedings pursuant to 28 U.S.C. § 636.
Defendant should have addressed his grievances to the Sixth Circuit, rather than filing an
objection. For these reasons, his objection on jurisdictional grounds is OVERRULED as
Magistrate Judge Vascura had jurisdiction to enter the order at issue.
III.

CONCLUSION

For the foregoing reasons, Defendant’s jurisdictional objection (ECF No. 117) is
OVERRULED and this Court has no authority to consider the remaining objections.
IT IS SO ORDERED.

ALGENON L. MARBLEY
CHIEF UNITED STATES DISTRICT JUDGE
DATED: September 3, 2021

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