Bank of New York Mellon et al v. Coleman

Filing 12

ORDER ACCEPTING 9 FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE: Defendant's objections are OVERRULED. Accordingly, Plaintiffs' 7 Motion to Remand is GRANTED. If the Defendant intends to pursue further action arising from these facts, she is ORDERED to pay the $400.00 Court filing fee and her filings will be subject to summary dismissal if she fails to pay the fee. (Ordered by Judge Reed C O'Connor on 8/27/2013) (twd)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION

BANK OF NEW YORK MELLON, et
al.,
Plaintiffs,
v.
AUDREY COLEMAN,
Defendant.

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Civil Action No. 3:13-cv-1329-O

ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
The United States Magistrate Judge made findings, conclusions, and a recommendation in
this case. Defendant filed objections. The Court has conducted a de novo review of those portions
of the proposed findings and recommendation to which objection was made.
Plaintiffs foreclosed on Defendant’s property and then filed an original petition in state court
against Defendant for forcible detainer. Findings, Conclusion and Recommendation 1, ECF No. 9.
On April 1, 2013, Defendant removed the case to federal court, and Plaintiffs filed the instant Motion
to Remand on May 1, 2013, (ECF No. 7), alleging that Defendant, as a citizen of Texas, could not
remove the case to federal court. Id. Plaintiffs further alleged that removal was improper because
no federal question had been established and the amount in controversy did not exceed $75,000. Id.
1-2. Defendant objected to the Findings, Conclusions and Recommendation on the basis that,
pursuant to 28 U.S.C. § 636(b), the case should not be remanded because she had not consented to
the Magistrate Judge presiding over the matter. Def.’s Objection 1, ECF No. 10.

“[A] judge may designate a magistrate judge to hear and determine any pretrial matter
pending before the court.” See 28 U.S.C. § 636(b)(1)(A). The consent of the parties is necessary
in order for the magistrate judge to “conduct any or all proceedings” and “order the entry of
judgment.” See 28 U.S.C. § 636(c)(1); see also Telemaque v. Holder, No. 11-30170, 450 Fed. Appx.
417, 418 (5th Cir. Nov. 21, 2011) (“Consent to proceed before a magistrate judge becomes relevant
only if the magistrate judge conducts all proceedings and orders the entry of judgment in a case”).
The parties’ consent is not required for the Magistrate Judge to consider a motion to remand.
See 28 U.S.C. § 636(b)(1)(A); see also McFaul v. Valenzuela, 684 F.3d 564, 579 (5th Cir. 2012)
(“Even if the parties do not consent, however, the district court may designate a [magistrate judge]
‘to hear and determine any pretrial matter . . . .’”) (quoting 28 U.S.C. § 636(b)(1)(A)); Flentroy v.
Lamb, No. 11-40717, 467 Fed. Appx. 291, 292 (5th Cir. Apr. 23, 2012) (contention that district
court’s acceptance of magistrate judge’s recommendation was erroneous because defendant did not
consent to proceed before the magistrate judge was “frivolous” because the proceedings were
conducted pursuant to § 636(b)). Here, Magistrate Judge Toliver did not enter judgment, but only
made a recommendation on Plaintiffs’ motion to remand, which does not require consent of the
parties. See Ybarra v. Meador, No. 10-40628, 427 Fed. Appx. 325, 327 (5th Cir. June 3, 2011);
Nixon v. GMAC Mortg. Corp., No. 10-10319, 408 Fed. Appx. 833 (5th Cir. Jan. 17, 2011).
Magistrate Judge Toliver also recommended that, due to Defendant’s “persistence in
continuing to pursue this same frivolous course of action,” the Court should order that any future
action filed by Defendant arising from these same facts must be accompanied by the requisite Court

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filing fee of $400.00.1 See Findings, Conclusions and Recommendation 4, ECF No. 9. The Court
has “inherent power” to levy sanctions against parties in order to protect the “efficient and orderly
administration of justice.” In re Stone, 986 F.2d 898, 902 (5th Cir. 1993).
The Court finds that the Findings, Conclusions, and Recommendation of the United States
Magistrate Judge are correct. Defendant’s objections are OVERRULED, and the Court ACCEPTS
the Findings, Conclusions, and Recommendation of the United States Magistrate Judge as the
findings of the Court. Accordingly, Plaintiffs’ Motion to Remand (ECF No. 7), filed May 1, 2013,
is GRANTED. If the Defendant intends to pursue further action arising from these facts, she is
ORDERED to pay the $400.00 Court filing fee and her filings will be subject to summary dismissal
if she fails to pay the fee.
SO ORDERED on this 27th day of August, 2013.

_____________________________________
Reed O’Connor
UNITED STATES DISTRICT JUDGE

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Magistrate Judge Toliver noted that Defendant has a history of filing frivolous suits and in removing cases
from state court to this Court involving the same underlying facts as this case. See Findings, Conclusions
and Recommendation 3-4, ECF No. 9. Furthermore, in February 2013, before removing the instant case,
Defendant was warned by Judge Boyle of possible sanctions if she continued to file and/or remove lawsuits
over which this Court lacked subject matter jurisdiction. See id. at 4.

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