Hill v. City of Seven Points, 99-41022

• Decision Date: 11 October 2000
• Docket Number: No. 99-41022,99-41022
• Citation: 230 F.3d 167
• Parties: (5th Cir. 2000) MARIAN HILL, Plaintiff-Appellee, v. CITY OF SEVEN POINTS; ET AL., Defendants, CITY OF SEVEN POINTS; TERESA DRUM, Individually and in official capacity; ROGER ALLEN, Individually and in official capacity; C. W. DANIEL, Individually and in official capacity; RANDY WHITEHURST, Individually and in official capacity; ANNIE LONGACRE, Individually and in official capacity; TOMMIE TAYLOR, Individually and in official capacity; DON ALLSUP, Individually and in official capacity; MARY REID, Individually and in official capacity; MARIE DAVIS, Individually and in official capacity; LYNN CLOWDUS, Individually and in official capacity; FOREST EVERITT, Individually and in official capacity; CLAUDETT ALLSUP, Individually and in official capacity; GERALD TAYLOR, Individually and in official capacity, Defendants-Appellants
• Court: U.S. Court of Appeals — Fifth Circuit

Page 167

230 F.3d 167 (5th Cir. 2000)

MARIAN HILL, Plaintiff-Appellee, v. CITY OF SEVEN POINTS; ET AL., Defendants,

CITY OF SEVEN POINTS; TERESA DRUM, Individually and in official capacity; ROGER ALLEN, Individually and in official capacity; C. W. DANIEL, Individually and in official capacity; RANDY WHITEHURST, Individually and in official capacity; ANNIE LONGACRE, Individually and in official capacity; TOMMIE TAYLOR, Individually and in official capacity; DON ALLSUP, Individually and in official capacity; MARY REID, Individually and in official capacity; MARIE DAVIS, Individually and in official capacity; LYNN CLOWDUS, Individually and in official capacity; FOREST EVERITT, Individually and in official

capacity; CLAUDETT ALLSUP, Individually and in official capacity; GERALD TAYLOR, Individually and in official capacity, Defendants-Appellants.

No. 99-41022

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

October 11, 2000

Appeal from the United States District Court for the Eastern District of Texas

Before BARKSDALE and BENAVIDES, Circuit Judges, and VELA^*, District Judge.

RHESA HAWKINS BARKSDALE, Circuit Judge:

This appeal is from a magistrate judge's denial of Appellants' summary judgment motion based on the defenses of absolute, qualified, and sovereign immunity. Pursuant to 28 U.S.C. § 636(c)(1), the parties consented to proceed to final judgment before the magistrate judge; however, the order of reference included in the consent form lacks the signature of the district judge. Because we are unsure whether, absent that signature, the magistrate judge had jurisdiction to render a final judgment, and, therefore, are unsure whether we have jurisdiction over this appeal, we REMAND.

The district court's order of reference, or special designation, pursuant to § 636(c)(1), is a jurisdictional concern. See Mendes Jr. Int'l Co. v. M/V Sokai Maru, 978 F.2d 920, 924 (5th Cir. 1992) ("[A]bsence of the appropriate consent and reference (or special designation) order results in a lack of jurisdiction (or at least fundamental error that may be complained of for the first time on appeal)."); Parks v. Collins, 761 F.2d 1101, 1105-06 (5th Cir. 1985) ("[F]atal to the magistrate's exercise of authority is the lack of any order of reference from the district judge."). None of the parties raised this jurisdictional issue on appeal. Of course, we "must examine the basis of [our] jurisdiction, on [our] own motion, if necessary". Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987).

"Upon the consent of the parties, a full-time 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 or courts he serves." 28 U.S.C. § 636(c)(1) (emphasis added). Courts have not defined "specially designated". Instead, they most often have addressed the parties' lack of consent as ground for a denial of jurisdiction. See, e.g., United States v. Muhammad, 165 F.3d 327, 329-31 (5th Cir.), cert. denied, 526 U.S. 1138 (1999); General Trading, Inc. v. Yale Materials Handling Corp., 119 F.3d 1485, 1494-97 (11th Cir. 1997), cert. denied, 523 U.S. 1055 (1998); Neals v. Norwood, 59 F.3d 530, 532 (5th Cir. 1995).

Here, there is no special designation by the district court. Under the district court's local rule, once the consent form is signed "and filed, the clerk shall transmit it to the district judge to whom the case has been assigned for approval and referral of the case to a magistrate judge". E.D. Tex. R. app. B, Rule (3)(B)(3) (emphasis added). Although the parties signed the consent form, the "Order of Reference" portion of that form, which includes a signature line for the district judge, is not signed.

Since July 1998, and pursuant to the district court's General Order No. 98-10, it appears that matters have been referred and assigned directly to magistrate judges. Regarding civil actions, that order states:

1.Prisoner suits shall be referred at the time of filing equally among magistrate judges with concurrent civil case responsibilities except as specified. Prisoner suits shall automatically be assigned to the magistrate judge to whom the case originally was referred when parties consent to trial and entry of judgment by a magistrate judge.

2.All other civil matters shall be referred or assigned randomly except as specified above or unless a specific order of the court directs otherwise.

E.D. Tex. Gen. Order No. 98-10.II.A. (emphasis added).

At hand is a nonprisoner civil action. For prisoner actions, the...