United States District Court, E.D. Texas, Tyler Division
MICHAEL E. WILLIAMS, Plaintiff,
YVONNE WRIGHT, Defendants.
ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE
W. SCHROEDER III UNITED STATES DISTRICT JUDGE.
above entitled and numbered civil action was referred to
United States Magistrate Judge John D. Love pursuant to 28
U.S.C. § 636. The Report and Recommendation of the
Magistrate Judge (Docket No. 28) recommending dismissal
without prejudice of all unserved Defendants and granting
Holly Creek Village Home Owners Association, Wright Way
Management Co., Yvonne Wright, and Lee Rhodes's Motion to
Dismiss for Plaintiff's Failure to State a Claim (Docket
No. 10) with prejudice has been presented for consideration.
On June 21, 2017, Plaintiff filed objections to the
Magistrate Judge's Report and Recommendation. Docket No.
objects on two grounds: (1) Plaintiff argues that pursuant to
Rule 28, Magistrate Judge Love “can not be involved in
this case unless all parties agree”; and (2) Plaintiff
argues pursuant to Rule 5(c), “serving one [Defendant]
is service to all in a close geographic premises.”
Docket No. 16. Plaintiff proceeds to refer to the Court as
“derelict in non attention to the rules” and
asserts that “perhaps the court should actually do
their on reading and follow the law.” The Court is also
aware that when Plaintiff filed his Objections with the
Clerk's Office, he became agitated and hostile with
Clerk's Office staff, including cutting them off when
they attempted to speak, such that it was necessary for the
Clerk's Office to call security.
respect to Plaintiff's first objection, Federal Rule of
Civil Procedure 28 relates to “Persons Before Whom
Depositions May be Taken.” It appears that
Plaintiff's reference to Rule 28 is intended to refer to
28 U.S. Code Section 636, entitled “Jurisdiction,
Powers, and Temporary Assignment.” Two portions of the
statute are relevant. Plaintiff focuses on subsection (c),
which is explained in the consent form provided to all
parties that gives them the option to consent to proceed
before a magistrate judge. This subsection states in part:
“[u]pon consent of the parties, a full-time United
States magistrate judge . . . may conduct any or all
proceedings in a jury or nonjury civil matter.” 28
U.S.C. § 636(c)(1). The statute also explains that
parties are free to withhold their consent without adverse
substantive consequences and that the parties' consent
must be voluntary. 28 U.S.C. § 636(c)(2). If the parties
consent to a magistrate judge, the magistrate judge
is fully responsible for presiding over the case, including
Court directs Plaintiff's attention, however, to a second
portion of the statute. Subsection (b) indicates that
“a judge may designate a magistrate judge to hear and
determine any pretrial matter pending before the court . .
.” 28 U.S.C. § 636(b)(1)(A)-(B). If a district
judge so chooses, a magistrate judge may fully hear most
matters that are not dispositive of the case. See 28
U.S.C. § 636(b)(1)(A); see also Federal Rule of
Civil Procedure 73. For matters that are case-dispositive, as
well as other specific issues (for example, motions to
suppress evidence in a criminal case), the magistrate judge
may make findings of fact and recommendations for the
disposition of the issue. 28 U.S.C. § 636(b)(1)(B).
These findings and recommendations must be reviewed by a
district judge. 28 U.S.C. § 636(b)(1)(C). Under this
section of the statute, which allows a district judge to
refer cases to a magistrate judge, the magistrate
judge may handle certain matters during pretrial, but the
ultimate disposition of the case (and presiding over a trial)
is still left to the district judge.
Plaintiff has not consented to proceed before a
magistrate judge, the undersigned has simply
referred this case to the magistrate judge for
pretrial proceedings. Ultimately, as demonstrated by this
Order, a district judge is still responsible for this matter.
All of this explanation boils down to one key issue that
Plaintiff has missed in his argument: even if parties do not
consent to fully proceed before a magistrate judge, the
district judge may still decide to refer. It is not
the parties' decision whether a case is referred.
See 28 U.S.C. § 636(b)(1)(A)
judge may designate a magistrate
judge. . .”). Thus, Plaintiff's first objection is
meritless and is overruled.
respect to Plaintiff's second objection, Federal Rule of
Civil Procedure 5(c) is entitled “Serving Numerous
Defendants.” Rule 5(c) states, in part,
(c) Serving Numerous Defendants.
(1) In General. If an action involves an unusually
large number of defendants, the court may, on motion or on
its own, order that:
(A) defendants' pleadings and replies to them need not be
served on other defendants;
(B) any crossclaim, counterclaim, avoidance, or affirmative
defense in those pleadings and replies to them will be
treated as denied or avoided by all other parties; and
(C) filing any such pleading and serving it on the plaintiff
constitutes notice of the pleading to all parties.
Court first directs Plaintiff's attention to subsection
(1), above, which states “the court
may, on motion or its
own.” In this case, although Plaintiff
requested that the U.S. Marshals serve the Defendants,
neither Plaintiff nor Defendants filed a motion invoking Rule
5(c), and the Court did not find it necessary to order these
procedures on its own (in part, because not all defendants
had yet appeared in the case). More importantly, however, the
Court directs Plaintiff to subsection (A), which states
“defendants' pleadings and
replies to them need not be served on
other defendants.” Neither
subsection (A) nor the other subsections of Rule 5(c) relate
to a plaintiff serving the named defendants with a
summons and the plaintiff's pleading; they relate to
defendants serving other defendants.
Plaintiff was required to serve each named Defendant pursuant
to Federal Rule of Civil Procedure 4 and failed to do so.
Plaintiff's second objection is overruled.
does not object to the substance of the Magistrate
Judge's findings with respect to Plaintiff's
Complaint. That is, Plaintiff does not object to the
Magistrate Judge's finding that Plaintiff has failed to
plead any plausible claims for relief. See Docket
No. 14 at 4-6. Having reviewed the Report in regard to these
findings and determined that the Magistrate Judge did not
commit clear error in his determination (see 28
U.S.C. § 636(b)(1)(C)), the ...