MacNeil v. Americold Corp., Civ. A. No. 88-2286-K.

• Decision Date: 30 March 1990
• Docket Number: Civ. A. No. 88-2286-K.
• Citation: 735 F. Supp. 32
• Parties: Roderick C. MacNEIL, Jr., Plaintiff, v. AMERICOLD CORPORATION, Defendant.
• Court: U.S. District Court — District of Massachusetts

735 F. Supp. 32

Roderick C. MacNEIL, Jr., Plaintiff, v. AMERICOLD CORPORATION, Defendant.

Civ. A. No. 88-2286-K.

United States District Court, D. Massachusetts.

March 30, 1990.

Joseph M. Orlando, Mark A. Graces, Orlando & Associates, Gloucester, Mass., for plaintiff.

Stephen Sutton, Bernard Fabricant, Melick & Porter, Boston, Mass., for defendant.

MEMORANDUM AND ORDER

KEETON, District Judge.

In this civil action for damages, the parties agreed to waive their right to a trial before a United States District Judge and instead try this case before a United States Magistrate pursuant to 28 U.S.C. § 636(c)(1). Plaintiff has filed a Motion to Withdraw Case from the Dispositive Jurisdiction of the Magistrate—that is, a motion to vacate the reference of this action to the magistrate pursuant to 28 U.S.C. § 636(c)(6)—and seeks a trial in the district court.

I. Procedural History

After the parties in this case expressly "waived trial before the District Judge and consented to a trial before, and the ordering of entry of judgment by, a United States Magistrate," Consent to Trial of Case Before United States Magistrate (Docket No. 40; filed December 11, 1989), this case was referred to Magistrate Cohen for disposition. The parties' Consent included a provision that any appeal from the Magistrate's rulings would be to the First Circuit rather than to this court.

The instant motion to vacate that reference is based, in large part, on the Magistrate's rulings with respect to the parties' "stipulation" concerning disclosure of defendant's witness list. The "stipulation" provided:

The plaintiff, Roderick C. MacNeil, Jr., will withdraw his Motion for Summary Judgment Docket No. 6; filed April 21, 1989 in consideration of sic defendant, Americold Corporation's, agreement to provide to the plaintiff, by August 29, 1989, the names and identities of all factual witnesses and an affidavit or trial memorandum of what their testimony will be at time of trial.

Stipulation of the Parties (Docket No. 11; filed May 30, 1989). This "stipulation" was never submitted to the court for approval.

On August 29, 1989, in accordance with this "stipulation," defendant served plaintiff with "Defendant's Pre-Trial Brief re: Witnesses" in which defendant stated that its only fact witness would be Leo Kennedy. See Plaintiff's Supplemental Memorandum in Support of Motion, ex. D (Docket No. 58; filed February 20, 1990). This document was never filed with the court.

The "stipulation" notwithstanding, Magistrate Cohen entered an Order on October 24, 1989, in which he required disclosure of the parties' witness lists by December 14, 1989. Pre-Trial Order ¶ C(10) (Docket No. 35B).

On December 14, 1989, in accordance with Magistrate Cohen's Order of October 24, 1989, defendant's successor counsel served plaintiff's counsel with its Pre-Trial Memorandum that listed seven fact witnesses in addition to Leo Kennedy. See Plaintiff's Supplemental Memorandum, ex. L; Defendant's Pre-Trial Memorandum (Docket No. 43; filed December 19, 1989). Plaintiff thereafter filed a Motion to Enforce Pre-Trial Stipulation (Docket No. 45; filed December 19, 1989) in which plaintiff asked the court to limit defendant to only one fact witness, Leo Kennedy.

This motion was argued before Magistrate Cohen at a pre-trial conference held on December 19, 1989. During the conference, Magistrate Cohen indicated that, because the court never approved the "stipulation," and because plaintiff was not prejudiced by defendant's listing additional witnesses, he would deny the motion to enforce the "stipulation." Trans. (Dec. 19, 1989) at 3-14 (Docket No. 71; filed around Dec. 23, 1989). The Magistrate entered his denial on the docket on January 4, 1990.

Five days later, plaintiff filed a Motion to Withdraw Case from the Dispositive Jurisdiction of Magistrate Cohen along with a supporting brief (Docket Nos. 49 and 50; filed January 9, 1990). Defendant filed an opposition on January 18, 1990 (Docket No. 54).

Magistrate Cohen interpreted the motion as seeking two alternative forms of relief: (1) that the Magistrate disqualify himself pursuant to 28 U.S.C. §§ 144 and 455; or (2) that this court vacate the reference of this case to the Magistrate pursuant to 28 U.S.C. § 636(c)(6). To the extent that the motion was intended as a Motion for Recusal directed to the Magistrate, Magistrate Cohen concluded that the motion was legally insufficient and denied that motion. To the extent that the motion was directed to the district judge pursuant to section 636(c)(6), Magistrate Cohen referred the motion to this court. Memorandum and Order of January 10, 1990 (Docket No. 52). Plaintiff thereafter filed a notice of appeal to the First Circuit (Docket No. 53; filed January 12, 1990).

This court heard oral argument on plaintiff's motion on February 12, 1990. Plaintiff subsequently filed a Supplemental Memorandum in Support of Motion (Docket No. 58; filed February 20, 1989) and defendant filed a supplemental memorandum in opposition (Docket No. 59; filed February 27, 1990). The motion is now ripe for decision.

II. Motion to Vacate Reference to Magistrate

Section 636(c)(1) authorizes a magistrate to "conduct any or all proceedings in a jury or nonjury civil matter and order the entry of judgment in a case" upon the consent of the parties, even though magistrates are not Article III judges. See also Fed.R. Civ.P. 73(a)-(b); Rule 4(c)(1) for United States Magistrates in the United States District Court for the District of Massachusetts. This delegation of judicial authority to magistrates has withstood constitutional challenge, in part because the district judge retains some control over the case and may vacate the reference to the magistrate at any time, Goldstein v. Kelleher, 728 F.2d 32, 35 (1st Cir.), cert. denied, 469 U.S. 852, 105 S.Ct. 172, 83 L.Ed.2d 107 (1984), under section 636(c)(6):

The court may, for good cause shown on its own motion, or under extraordinary circumstances shown by any party, vacate a reference of a civil matter to a magistrate under this subsection.

28 U.S.C. § 636(c)(6) (emphasis added). See also Fed.R.Civ.P. 73(b) (substituting "district judge" for "court"); Rule 4(c)(6) for United States Magistrates in the United States District Court for the District of Massachusetts.

The section 636(c)(6) motion to vacate reference raises an issue of first impression in this District, and one that has received scant attention elsewhere. See Murret v. City of Kenner, 894 F.2d 693, 695 (5th Cir.1990) ("The parameters of the extraordinary circumstances condition for vacating the reference of a civil matter to a magistrate have yet to be defined"). Moreover, because the constitutionality of section 636(c) rests, in part, on the availability of this procedure for vacating a reference, this question implicates issues that may have constitutional significance.

A. Conclusions of Law

In my view, and as Magistrate Cohen also recognized, plaintiff's motion raises two separate substantive prayers for relief with procedural differences as well—first, a motion to disqualify Magistrate Cohen directed to the Magistrate, and second, a motion to vacate the reference to a magistrate directed to this court.

Several reported decisions have concluded that an allegation that a magistrate is not impartial is one of the factors that the district court may consider in deciding whether to vacate a reference for "extraordinary circumstances." Carter v. Sea Land Services, Inc., 816 F.2d 1018, 1021 (5th Cir.1987) (one factor court should consider in section 636(c)(6) motion to vacate is "the possibility of bias or prejudice on the part of the magistrate"); Cooley v. Foti, No. 86-3704 (E.D.La. Feb. 5, 1988) (available on WESTLAW at 1988 WL 10166, at *5) (district court concluded that legally sufficient allegations of Magistrate's bias "constitutes extraordinary circumstances and justifies the withdrawal of the § 636(c) references"); Miami Valley Carpenters District Council Pension Fund v. Scheckelhoff, 123 F.R.D. 263, 265 (S.D.Ohio 1988) (Merz, M.) ("One possible use of ... authority to vacate reference to magistrate for extraordinary circumstances would be where a magistrate is disqualified under 28 U.S.C. § 144 or 455"); Ouimette v. Moran, 730 F.Supp. 473, 480 (D.R.I.1990) (citing Carter's list of factors including "possibility of bias or prejudice on the part of the magistrate"). To put it another way, these courts have concluded that allegations that a magistrate to whom a case has been referred under section 636(c)(1) is biased ought to be adjudicated by the district court that referred the case to the magistrate, and not by the magistrate himself, and that these allegations, when legally sufficient to compel disqualification, are also sufficient to constitute "extraordinary circumstances."

These precedents are inconsistent with the plain words of the recusal statutes, 28 U.S.C. §§ 144 and 455, and with many decisions interpreting those statutes, which require a movant to present a motion for recusal to the judicial officer whose impartiality is at issue, and not, at least in the first instance, to some other judicial officer. See 28 U.S.C. § 455 ("Any ... magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned") (emphasis added); United States v. Professional Air Traffic Controllers Organization, 527 F.Supp. 1344, 1351-52 (N.D.Ill. 1981) ("Although judges have, on occasion, referred the question of their own disqualification to another judge for disposition, we think the better procedure in this case is for the judge presiding over the case to resolve the motion for disqualification since we are in the best position to appreciate the circumstances surrounding the allegations in the affidavits"); In re Corrugated Container Antitrust Litigation, 614 F.2d 958, 963 n. 9 (5th Cir.) ("`It is for the judge who is the object of...