Anderson v. Woodcreek Venture Ltd., 01-36045.

• Decision Date: 05 December 2003
• Docket Number: No. 01-36045.,01-36045.
• Citation: 351 F.3d 911
• Parties: Denise Kay ANDERSON, Plaintiff-Appellant, v. WOODCREEK VENTURE LTD; James May; Linda Brown; Curtis Brown, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 911

351 F.3d 911

Denise Kay ANDERSON, Plaintiff-Appellant, v. WOODCREEK VENTURE LTD; James May; Linda Brown; Curtis Brown, Defendants-Appellees.

No. 01-36045.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 9, 2003 — Portland, Oregon.

Filed December 5, 2003.

Peter B. Camp, Everett, Washington, for the plaintiff/appellant.

Timothy C. Gerking, Brophy, Mills, Schmor, Gerking & Brophy, Medford, Oregon, for the defendants/appellees.

Appeal from the United States District Court for the District of Oregon; John P. Cooney, Magistrate Judge, Presiding. D.C. No. CV-99-03016-CO.

Before: Donald P. Lay,^* J. Clifford Wallace, and Richard C. Tallman, Circuit Judges.

OPINION

WALLACE, Senior Circuit Judge:

Anderson appeals from a magistrate judge's order denying her motion for a new trial in her action against WoodCreek Venture, Ltd. and three of its employees (collectively, WoodCreek). Because the record casts into doubt whether Anderson voluntarily consented to the magistrate judge's jurisdiction to enter judgment as required by 28 U.S.C. § 636(c)(1), and because our appellate jurisdiction depends on the proper exercise of magistrate judge jurisdiction, id. § 636(c)(3), we remand to the district court to determine if Anderson voluntarily consented under subsection (c)(1).

I.

Anderson and her daughter rented a townhouse unit from WoodCreek under the Department of Housing and Urban Development (HUD)'s tenant-based Housing Choice Voucher Program. By the terms of a HUD addendum to the rental agreement, the Housing Authority of Jackson County, Oregon (Housing Authority), had to approve the composition of the family residing in the unit. The Housing Authority granted approval only for Anderson and her daughter.

In January of 1999, WoodCreek employees reported to the Housing Authority that Anderson had a guest — allegedly identified as Wills, the father of Anderson's daughter — living with her for more than seven days in violation of the rental agreement. Anderson was subsequently served with a notice that Wills must vacate the premises or fill out an application and be approved to live in the unit. Without responding, Wills and Anderson, along with their daughter, left on a trip to California and were gone for more than a week. In their absence, WoodCreek employees entered Anderson's unit without permission, supposedly out of a concern that they had not heard from Anderson in over a week. They also sent her a Notice of Termination for the alleged breach of her lease agreement.

On March 1, 1999, Anderson and Wills filed, pro se, an action in the District of Oregon alleging that WoodCreek attempted to evict Anderson and limit other dwelling privileges based on Anderson and Wills's race, color, and gender in contravention of the Fair Housing Act of 1968, as amended, 42 U.S.C. §§ 3601-3631, and the Civil Rights Act of 1866, 42 U.S.C. §§ 1981 and 1982. They also accused WoodCreek of violating Anderson's Fourth Amendment rights by entering her home without permission.

On the same day the action was filed, the District Court Clerk's Office issued its "Notice to Counsel Regarding Assignment of Presiding Judicial Officer" (Notice Form). The Notice Form designates assignment of the case to "Honorable John P. Cooney, U.S. Magistrate Judge," and explains in part: "The above referenced case has been assigned to the presiding judicial officer shown below for disposition, to include the conduct of trial and/or entry of final judgment. 1" The marker "1" does not correspond to an enumerated footnote, but at the bottom of the page where footnote text normally appears the Notice Form states:

Cases initially assigned to a United States Magistrate shall be administered by that judge, to include the scheduling of all discovery matters, and with the consent of the parties, the conduct of trial and/or entry of final judgment. Pursuant to Fed.R.Civ.P. 73, all full-time United States Magistrates in the District of Oregon have been certified to exercise civil jurisdiction in assigned cases, to include trial and entry of final judgment. Appeals from the entry of such judgments go directly to the United States Court of Appeals for the Ninth Circuit, not to a trial de novo before a district judge. Therefore, parties are strongly encouraged to file a Consent to Trial and Entry of Final Judgment [See Fed.R.Civ.P. 73(b)].

In response to the Notice Form and WoodCreek's Motion to Dismiss/Motion to Make More Definite and Certain, Anderson and Wills filed their first post-Notice Form pleading on March 23, 1999. The document contained three statements in its caption: "Opposition to Defendants[sic] Motion To Dismiss and Plaintiffs [sic] Motion for Leave To Amend Complaint," "Plaintiffs Deny Magistrates [sic] Jurisdiction," and "Plaintiffs [sic] Motion for Summary Judgment." The text stated in part: "Plaintiffs Wills and Anderson do hereby deny Magistrates [sic] jurisdiction." Notably, both parties needed to consent to the magistrate judge's authority to enter judgment for the magistrate judge to have jurisdiction over WoodCreek's motion to dismiss and Anderson and Wills's summary judgment motion. As of this point, however, only WoodCreek had filed the District of Oregon's form "Consent to Jurisdiction by a United States Magistrate Judge and Designation of Normal Appeal Route" (Consent Form).

Anderson and Wills's next pleading was filed May 27, 1999, and was titled in part "Plaintiffs Motion To Deny Magistrates [sic] Jurisdiction" and "Opposition To Defendants [sic] Motion To Remove Plaintiff, Jim Dandy Wills Jr., As a Party." Once again, both parties were required to consent before the magistrate judge could rule dispositively on WoodCreek's motion to remove Wills. Anderson and Wills continued to hold out, announcing in the text of this pleading that "[p]ursuant to Fed.R.Civ.P. 73[,] Plaintiffs do hereby deny Magistrates [sic] Jurisdiction and move the Court to assign a Federal District Court Judge to this instant case."

On June 18, 1999, Magistrate Judge Cooney referred the motion to deny his jurisdiction to district court Judge Michael R. Hogan for consideration and stayed the case pending Judge Hogan's decision. Judge Hogan issued a terse ruling on June 22, 1999: "This court having considered `Plaintiffs Motion To Deny Magistrates Jurisdiction' (# 17) in this matter, IT IS HEREBY ORDERED that plaintiff's motion is denied." No reference was made to WoodCreek's motion to dismiss, WoodCreek's motion to remove plaintiff Wills, or Anderson and Wills's summary judgment motion.

Nothing further occurred until July 13, 1999, when Anderson, allegedly anxious her case would sit inactive unless she consented to the magistrate judge's jurisdiction, filed, along with Wills, Consent Forms. The magistrate judge dismissed Wills from the suits and WoodCreek eventually prevailed in a jury trial. Anderson filed a motion for a new trial, arguing in part that her consent to magistrate judge jurisdiction was involuntary. Magistrate Judge Cooney denied this motion on October 23, 2001, whereupon Anderson filed this appeal.

II.

Anderson renews her involuntary consent argument before us. As this argument bears on our jurisdiction to hear her appeal, we consider it first.

The relevant sources of appellate jurisdiction over final orders issued by magistrate judges reside principally in two statutory provisions. The section directly providing for jurisdiction on appeal reads in part:

Upon entry of judgment in any case referred under paragraph (1) of this subsection, an aggrieved party may appeal directly to the appropriate United States court of appeals from the judgment of the magistrate judge in the same manner as an appeal from any other judgment of a district court. The consent of the parties allows a magistrate judge designated to exercise civil jurisdiction under paragraph (1) of this subsection to direct the entry of a judgment of the district court in accordance with the Federal Rules of Civil Procedure.

28 U.S.C. § 636(c)(3) (emphasis added). The "paragraph (1)" reference in section 636(c)(3) is to section 636(c)(1), the provision affording the magistrate judge jurisdiction. It states in part that "[u]pon the consent of the parties, a full-time United States magistrate judge ... may conduct any or all proceedings in a jury or nonjury civil matter and order the entry of judgment in the case, when specially designated to exercise such jurisdiction by the district court." Id. § 636(c)(1) (emphasis added); see also FED. R. CIV. P. 73 (establishing the procedures contemplated by section 636(c)). Our appellate jurisdiction therefore depends on the magistrate judge's lawful exercise of jurisdiction, Nasca v. Peoplesoft (In re Marriage of Nasca), 160 F.3d 578, 580 (9th Cir.1998) (holding that the magistrate judge's "lack of jurisdiction a fortiori deprives this court of appellate jurisdiction"), which in turn depends on proper district court designation and the voluntary consent of the parties to entry of judgment by the magistrate judge, Estate of Conners by Meredith v. O'Connor, 6 F.3d 656, 659 (9th Cir.1993) (holding that "because the magistrate did not [obtain party consent] to enter a final order, the defendants' notice of appeal from that order was a nullity"); see also Roell v. Withrow, 538 U.S. 580, 123 S.Ct. 1696, 1707, 155 L.Ed.2d 775 (2003) (Thomas, J., dissenting) ("Absence of consent means absence of `judgment,' which, in turn, means absence of appellate jurisdiction.").

Consent thus emerges from the statute as the touchstone of magistrate judge jurisdiction. Subsection (c)(3), in addition to referring to subsection (c)(1), expressly reinforces its insistence on consensual designation of a case to a magistrate judge for disposition. This statutory structure was designed by members of Congress who explicitly considered voluntary consent imperative. For example, the Senate Committee on the Judiciary stated when recommending...