Holt–orsted v. City of Dickson

• Decision Date: 24 May 2011
• Docket Number: No. 09–6327.,09–6327.
• Citation: 641 F.3d 230
• Parties: Sheila HOLT–ORSTED; Harry Holt, deceased, by his personal representative, estate, heirs and assigns; Beatrice Holt; Jasmine Orsted; Bonita Holt; O'Brian Holt; Brandon Holt; Patrick Holt; Bianka Bentley; Demetrius Holt; David Brown, Plaintiffs–Appellants,v.CITY OF DICKSON; Dickson County, TN; Betsy L. Child, Commissioner; Susan R. Cooper, Commissioner, Defendants–Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

641 F.3d 230

Sheila HOLT–ORSTED; Harry Holt, deceased, by his personal representative, estate, heirs and assigns; Beatrice Holt; Jasmine Orsted; Bonita Holt; O'Brian Holt; Brandon Holt; Patrick Holt; Bianka Bentley; Demetrius Holt; David Brown, Plaintiffs–Appellants,

v.CITY OF DICKSON; Dickson County, TN; Betsy L. Child, Commissioner; Susan R. Cooper, Commissioner, Defendants–Appellees.

No. 09–6327.

United States Court of Appeals, Sixth Circuit.

Argued: Oct. 19, 2010.Decided and Filed: May 24, 2011.

ARGUED: Ryan C. Downer, NAACP Legal Defense & Educational Fund, New York, New York, for Appellants. Teresa Reall Ricks, Farrar & Bates, L.L.P., Nashville, Tennessee, for Appellees. ON BRIEF: Ryan C. Downer, John Payton, Debo P. Adegbile, Matthew Colangelo, Joy Milligan, NAACP Legal Defense & Educational Fund, New York, New York, for Appellants. Teresa Reall Ricks, Beth Frazer, Farrar & Bates, L.L.P., Nashville, Tennessee, William H. Farmer, Jones, Hawkins & Farmer, PLC, Nashville, Tennessee, Jennifer L. Brundige, Luna Law Group, PLLC, Nashville, Tennessee, for Appellees.Before: GILMAN and GRIFFIN, Circuit Judges; ROSE, District Judge. ^*

OPINION

GRIFFIN, Circuit Judge.

In this interlocutory appeal, plaintiffs challenge the magistrate judge's order, issued with plenary authority pursuant to 28 U.S.C. § 636(c), that compels the testimony of plaintiffs' former counsel over plaintiffs' claim of attorney-client privilege. Because the order is not a final judgment under 28 U.S.C. § 1291, and does not otherwise qualify for our immediate review, we lack jurisdiction to hear plaintiffs' appeal and therefore dismiss it.

I.

Plaintiffs are all members of an African–American family, the Holts, who reside or have resided for many years near a contaminated landfill owned and run by defendants City of Dickson (“the City”) and County of Dickson, Tennessee (“the County”). Plaintiffs allege that defendants were aware as early as 1988 that the well water of the properties adjacent to the landfill was contaminated with a toxic chemical, trichloroethylene (“TCE”), that had been dumped at the landfill. Plaintiffs contend that, although defendants promptly warned Caucasian families living nearby not to drink the water and provided them with alternate sources of safe water, the similarly-situated African–American plaintiffs were not warned and, in fact, were repeatedly assured for almost fifteen years that their water was safe to drink. Each of the plaintiffs has been plagued by various illnesses, deformities, and physical impairments, which they attribute to the ingestion of contaminated well water that leached from the landfill.

In December 2003, plaintiffs filed suit in the Tennessee state-court system. Subsequently, the action was transferred to the United States District Court for the Middle District of Tennessee. Plaintiffs allege racial discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment and 42 U.S.C. § 1983; Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d; and various state-law claims against the city, county, and state defendants.¹

At issue in this interlocutory appeal is the magistrate judge's order granting in part the City's motion to compel the testimony of Sharon Jacobs, former counsel to plaintiffs. Jacobs consulted with plaintiffs' decedent Harry Holt about environmental issues in 2000, and then, in November 2000, sent a letter to the County requesting, under the Tennessee Public Records Act and the Freedom of Information Act, all data related to soil and water testing conducted for properties within a one-mile radius of the landfill. Plaintiffs allege that they first discovered in April or May of 2003 that their injuries could be caused by the contaminated well water. However, the City has asserted a statute-of-limitations defense and contends that if plaintiffs consulted with Jacobs concerning the contaminated well water in 2000, as suggested by the November 2000 letter, then the action is barred by the applicable one-year statute of limitations set forth in Tennessee Code Annotated § 28–3–104(a)(3). In an effort to obtain further information, the City noticed the deposition of Jacobs upon written questions pursuant to Federal Rule of Civil Procedure 31.

Prior to Jacobs' deposition in August 2009, plaintiffs instructed Jacobs that they believed that many of the City's written questions sought information protected by the attorney-client privilege, including information regarding client communications, litigation strategy, and other legal advice based on those client communications. Consequently, at her deposition, Jacobs refused to answer several of the questions on the basis of the attorney-client privilege.

The City then filed a motion to compel Jacobs' testimony. Plaintiffs and the City filed a notice of consent, approved by the district court, to refer the motion to a magistrate judge pursuant to 28 U.S.C. § 636(c). In an order dated September 30, 2009, the magistrate judge granted in part and denied in part the City's motion to compel, holding that the information sought in the majority of the written deposition questions was neither protected by the attorney-client privilege nor by the work-product doctrine. The magistrate judge denied plaintiffs' motion to alter or amend the order, and plaintiffs now appeal directly to this court.

II.

As a threshold matter, the City contends that this court lacks jurisdiction to entertain plaintiffs' interlocutory appeal because (1) as a matter of law, limited issues, such as the present discovery motion, cannot be transferred in piecemeal fashion to a magistrate judge for resolution under 28 U.S.C. § 636(c); and (2) the parties did not effectively consent to the exercise of plenary jurisdiction by the magistrate judge pursuant to § 636(c), but instead agreed to refer the motion pursuant to 28 U.S.C. § 636(b), which permits a magistrate judge to decide pretrial matters but specifies that reconsideration of the magistrate's order shall be by the district judge to whom the case is assigned. See 28 U.S.C. § 636(b)(1)(A)-(C). Both arguments are without merit.

28 U.S.C. § 636(c)(1) provides that “[u]pon the consent of the parties, a ... 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 [.]” “Upon the entry of judgment in any case referred under [§ 636(c)(1) ], 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.” 28 U.S.C. § 636(c)(3). See also Federal Rule of Civil Procedure 73(c) (“In accordance with 28 U.S.C. § 636(c)(3), an appeal from a judgment entered at a magistrate judge's direction may be taken to the court of appeals as would any other appeal from a district-court judgment.”); McQueen v. Beecher Cmty. Sch., 433 F.3d 460, 472 (6th Cir.2006) (“[I]f the statutory requirements [of § 636(c) ] are met, either party may appeal this judgment directly to the court of appeals without seeking review in the district court. Otherwise, we are without jurisdiction to review the magistrate's order unless the parties have sought review in the district court.”) (citation and internal quotation marks omitted).

We have held that “[t]he plain language of [28 U.S.C. § 636(c)(1) ] allows the magistrate judge to ‘conduct any or all proceedings in a jury or non-jury civil matter[,]’ ” without restriction. Moses v. Sterling Commerce (America), Inc., 122 Fed.Appx. 177, 180–81 (6th Cir.2005) (quoting 28 U.S.C. § 636(c)(1)); see also Fed.R.Civ.P. 73(a) (“[A] magistrate judge may, if all parties consent, conduct a civil action or proceeding, including a jury or nonjury trial.”) (emphasis added); M.D. Tenn. R. 73.01(a) (“After an order of transfer is entered in a case [pursuant to § 636(c)(1) ], a Magistrate Judge may conduct any and all proceedings in the case” and, “[i]n the course of conducting such proceedings, ... may hear and determine any pre-trial and post-trial motions....”); cf. Quantum Mgmt. Group, Ltd. v. Univ. of Chicago Hosps., 283 F.3d 901, 905 (7th Cir.2002) (undertaking direct review of the magistrate judge's order after noting that “the parties consented to the exercise of jurisdiction by [the magistrate judge] for the limited purpose of ruling on [the defendant's] summary judgment motion.”); Stockler v. Garratt, 974 F.2d 730, 732 (6th Cir.1992) (“Under 28 U.S.C. § 636(c), the district court is authorized to appoint a magistrate to conduct voir dire if he has the consent of the parties.”).

Thus, a § 636(c)(1) referral grants full authority to a magistrate judge to oversee all or part of a case, as consented to by the parties and designated by the district court, “in the same manner as a district judge would.” Moses, 122 Fed.Appx. at 181 (citing Roell v. Withrow, 538 U.S. 580, 585, 123 S.Ct. 1696, 155 L.Ed.2d 775 (2003)). There is simply no merit to the City's argument that a magistrate judge's exercise of plenary jurisdiction is invalid unless the entire case is referred to the magistrate under § 636(c)(1).

With regard to the issue of consent, there must be a “clear and unambiguous statement in the record indicating that the parties consented to the exercise of plenary jurisdiction by the Magistrate.” Ambrose v. Welch, 729 F.2d 1084, 1085 (6th Cir.1984) (per curiam). The City contends that the Notice of Consent submitted jointly by the City and plaintiffs is ineffective in its grant of plenary jurisdiction to the magistrate judge because it states ambiguously that the parties “consent that any issues that arise in connection with the City's subpoena or the deposition of Ms. Jacobs may be referred to a Magistrate Judge of this Court pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 72.” (Emphasis added.) Rule...