Fuente Cigar, Ltd. v. Roadway Exp., Inc., 91-5110

• Decision Date: 12 February 1991
• Docket Number: No. 91-5110,91-5110
• Citation: 925 F.2d 370
• Parties: FUENTE CIGAR, LTD., Petitioner, v. ROADWAY EXPRESS, INC., Respondent.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 370

925 F.2d 370

FUENTE CIGAR, LTD., Petitioner, v. ROADWAY EXPRESS, INC., Respondent.

No. 91-5110.

United States Court of Appeals Eleventh Circuit.

Feb. 12, 1991.

Richard Benjamin Wilkes, Lansing C. Scriven, Trenam, Simmons, Kemker, Scharf, Barkin, Frye & O'Neill, P.A., Tampa, Fla., for petitioner.

Kenneth E. Cohen, Kroll & Tract, Miami, Fla., for respondent.

Application for Permission to Appeal an Interlocutory Order of the United States District Court for the Southern District of Florida.

Before CLARK, COX and BIRCH, Circuit Judges.

PER CURIAM:

Petitioner Fuente Cigar, Ltd. has moved this court for leave to appeal from a final judgment of the United States District Court for the Southern District of Florida (the "District Court"), pursuant to 28 U.S.C. Sec. 636(c)(5). In accordance with the provisions of the Magistrate Act, specifically 28 U.S.C. Sec. 636(c), the parties to this action had previously stipulated to try the matter before a United States Magistrate, and the parties had further agreed to pursue any appeal of the Magistrate's decision in the District Court pursuant to 28 U.S.C. Sec. 636(c)(4).

On November 22, 1988, the Magistrate found in favor of Fuente Cigar on its claim that Roadway Express had violated the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. Sec. 11707, in connection with the handling of a shipment of cigars. Final judgment was entered in favor of Fuente Cigar on February 21, 1989.

On March 20, 1989, Roadway Express filed a Notice of Appeal to the District Court. Subsequently, the District Court reversed the final judgment of the Magistrate in favor of Fuente Cigar and entered final judgment for Roadway Express on October 5, 1990. The District Court held that the Magistrate erred in finding that Fuente established the three essential elements of its claim under the Carmack Amendment, and therefore Fuente failed to prove a prima facie case. Roadway Express, Inc., v. Fuente Cigar, Ltd., 749 F.Supp. 248. Fuente's Petition For Leave To Appeal to this court followed shortly thereafter.

Before we proceed to the merits of this case, we note that the standard of review for deciding whether to grant a petition for leave to appeal under 28 U.S.C. Sec. 636(c)(5) has not been previously defined in this circuit. Several other circuits have delineated a standard of review in such cases. See Pushard v. Russell, 815 F.2d 1 (1st Cir.1987), cert. denied, 485 U.S. 965, 108 S.Ct. 1236, 99 L.Ed.2d 435 (1988); Adams v. Heckler, 794 F.2d 303 (7th Cir.1986); Wolff v. Wolff, 768 F.2d 642 (5th Cir.1985); Penland v. Warren County Jail, 759 F.2d 524 (6th Cir.1985). These cases have expressly adopted, with minor modifications, the standard defined by Local Rule 28(a) of the Eighth Circuit, which provides in pertinent part as follows:

Permission for leave to appeal is a matter of sound judicial discretion and will be granted only if the appeal presents substantial issues for review by this court. The court will exercise its discretion in granting or denying permission to appeal in light of the following guidelines:

(1) Permission to appeal may be denied if

(i) the sole issue on appeal is whether the magistrate's findings of fact are clearly erroneous, and the district court sitting as an appellate court has upheld the magistrate's findings; or

(ii) the dispositive issue or set of issues has been authoritatively decided recently, and the district court has found the magistrate's judgment to be consistent with the authoritative decisions; or

(iii) the issues raised on appeal are otherwise insubstantial.

(2) Permission to appeal will be granted if (i) the magistrate has decided a substantial question of law not previously determined by this court or has decided it in a way inconsistent with applicable decisions of this court.

Pushard v. Russell, 815 F.2d at 1-2.

The Sixth Circuit's opinion in Penland v. Warren County Jail, 759 F.2d at 527-30, contains a persuasive and exhaustive review of the legislative history of 28 U.S.C. Sec. 636(c)(5). We join the Fifth and Seventh Circuits in adopting the Sixth Circuit's learned discussion of the history of the Magistrate Act as a predicate to our adoption of this standard of review. Adams, 794 F.2d at 309; Wolff, 768 F.2d at 647. We also agree with the conclusion of the Fifth, Sixth, Seventh and Eighth Circuits "that petitions for leave to appeal should be granted only in cases involving substantial and important questions of law." Adams, 794 F.2d at 309. In the interest of promoting uniformity among the circuits on this issue, we also adopt the two modifications to the Eighth Circuit's local rule that were implemented by the Sixth Circuit and subsequently adopted by the Fifth and Seventh Circuits:

First, if a magistrate decides a question of law in a manner inconsistent with the decisions of this court but the district court corrects the error on the appeal as of right, then a further appeal to this court need not be granted. Second, since petitions for leave to appeal are submitted to a motions panel of this court rather than to a hearing panel, the motions panel need not decide that the magistrate and the district court actually failed to follow the decisions of this court in order to grant leave to appeal. Instead, the motions panel need only determine that there is a substantial likelihood that the magistrate and the district court violated circuit precedent. The panel assigned to hear the case would then decide whether the magistrate and the district court actually failed to follow circuit precedent.

Penland, 759 F.2d at 530 (emphasis in original). Also,

this court may grant leave to appeal as to some issues raised in a petition and deny leave to appeal as to other issues. When leave to appeal is granted in whole or in part, the petitioner need not return to the district court to file a notice of appeal. The granted petition shall be deemed a notice of appeal.

Id., 759 F.2d at 531 n. 5.

Applying this standard to the instant case, we must GRANT Fuente Cigar's Petition for Leave to Appeal. The procedural posture of this case does not fall squarely within the guidelines of the Eighth Circuit which are adopted above. The guidelines state that "permission to appeal may be denied if the sole issue on appeal is whether the magistrate's findings of fact are clearly erroneous, and the district court sitting as an appellate court has upheld the...