Rubin v. Smith, Civ. No. 92-273-SD.

• Decision Date: 30 March 1995
• Docket Number: Civ. No. 92-273-SD.
• Parties: Carol A. RUBIN, et al. v. Philip SMITH, Sr., et al.
• Court: U.S. District Court — District of New Hampshire

882 F. Supp. 212

Carol A. RUBIN, et al. v. Philip SMITH, Sr., et al.

Civ. No. 92-273-SD.

United States District Court, D. New Hampshire.

March 30, 1995.

Carol A. Rubin, pro se.

Wayne C. Beyer, Manchester, NH, for Phillip Smith, Sr., Fred Rheault, James E. Ross, and Town of Salem, NH.

Richard Y. Uchida, Concord, NH, Michael R. Chamberlain, Manchester, NH, for Rebecca B. Rubin.

Robert M. Larsen, Concord, NH, Jonathan Katz, New Haven, CT, for Harvey Rubin and Quentin Rubin.

ORDER

DEVINE, Senior District Judge.

Presently before the court is plaintiff Carol A. Rubin's motion to vacate the magistrate judge's order appointing a guardian ad litem on behalf of plaintiff Rebecca Rubin. Also before the court is the guardian's motion for protective order, to which no objection has been filed.

1. Carol Rubin's Motion to Vacate (document 161)

Carol Rubin moves for an order vacating the magistrate judge's order of September 6, 1994, appointing a guardian ad litem on behalf of plaintiff Rebecca Rubin.¹

Carol Rubin contends that the magistrate judge exceeded his authority by appointing a guardian ad litem, which "additionally violated the Plaintiff's due process rights because the Magistrate concluded erroneously and without affording the Plaintiff notice or a proper fact finding hearing and without issuance of a reasoned report and recommendation determining that the interests of the Plaintiff and her daughter were in legal conflict." Plaintiff Carol A. Rubin's Motion to Vacate ¶ 8.

a. Magistrate Judge's Authority

The post of United States magistrate judge² was legislatively created in 1968 as an adjunct to the "first echelon of the Federal judiciary," H.R.REP. No. 1629, 90th Cong., 2d Sess., reprinted in 1968 U.S.C.C.A.N. 4252, 4254, and was intended "to help relieve the burgeoning caseloads of the United States District Courts and the corresponding burdens on federal trial judges," 12 CHARLES A. WRIGHT, ET AL., FEDERAL PRACTICE AND PROCEDURE § 3076.1, at 34 (Supp.1994).

Unlike Article III judges, magistrate judges can assume only as much jurisdiction as the relevant enabling statute will allow.³See Denny v. Ford Motor Co., 146 F.R.D. 52, 55 (N.D.N.Y.1993) (citing Wingo v. Wedding, 418 U.S. 461, 94 S.Ct. 2842, 41 L.Ed.2d 879 (1974)). Pursuant to 28 U.S.C. § 636(b)(1)(A),⁴ the magistrate judge is empowered to "hear and determine any pretrial matter pending before the court," subject to eight specifically delineated exceptions.⁵ 28 U.S.C. § 636(b)(1)(A) (1993). Moreover, in accordance with section 636(b)(3), "a magistrate judge may be assigned such additional duties as are not inconsistent with the Constitution and laws of the United States." 28 U.S.C. § 636(b)(3).⁶

Section 636 further directs that "each district court shall establish rules pursuant to which the magistrates shall discharge their duties." 28 U.S.C. § 636(b)(4). In accordance with said congressional mandate, the local rules of this court indicate that the magistrate judge shall hear and determine all nondispositive matters not specifically enumerated as an exception in 28 U.S.C. § 636(b)(1)(A) and that the magistrate judge's decision "shall be final and binding⁷ ...." See Local Rules for the Magistrate's Duties at 99-100.

The power of the district court to reconsider a matter so decided by the magistrate judge is limited to those circumstances "where it has been shown that the magistrate's order is clearly erroneous or contrary to law." 28 U.S.C. § 636(b)(1)(A) (emphasis added); see also Rule 72(a), Fed.R.Civ.P. (district court shall modify or set aside any portion of magistrate's order on a nondispositive matter found to be clearly erroneous or contrary to law); 7 (pt. 2) JAMES W. MOORE, ET AL., MOORE'S FEDERAL PRACTICE § 72.023, at 72-16 (1994) ("If the motion would not dispose of a claim or defense, the magistrate may decide the motion, and the magistrate's decision is reviewable only for clear error."). "A finding is `clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948).

b. Appointment of a Guardian Ad Litem

(1) Power to Appoint

The authority to appoint a guardian ad litem is set out in Rule 17, Fed.R.Civ.P., which provides, "The court shall appoint a guardian ad litem for an infant or incompetent person not otherwise represented in an action or shall make such other order as it deems proper for the protection of the infant or incompetent person." Rule 17(c), Fed. R.Civ.P. As the plaintiff correctly notes, this circuit has previously held that "the decision as to whether or not to appoint such a special representative rests with the sound discretion of the district court and will not be disturbed unless there has been an abuse of its authority." Developmental Disabilities Advoc. v. Melton, 689 F.2d 281, 285 (1st Cir.1982) (citations omitted).

However, plaintiff's suggested literal interpretation of the phrase "the district court" in the quoted language belies the legislative history of the Federal Magistrates Act. As the 1976 amendments make plain, the congressional intent was to include "magistrate judge" wherever reference is made in title 28 to "the court" or "the judge".

The initial sentence of the revised section uses the phrase "notwithstanding any provision of law to the contrary —." This language is intended to overcome any problem which may be caused by the fact that scattered throughout the code are statutes which refer to "the judge" or "the court". It is not feasible for the Congress to change each of those terms to read "the judge or a magistrate". It is, therefore, intended that the permissible assignment of additional duties to a magistrate judge shall be governed by the revised section 636(b), "notwithstanding any provision of law" referring to "judge" or "court".

H.R.REP. No. 1609, 94th Cong., 2d Sess. 9, reprinted in 1976 U.S.C.C.A.N. 6162, 6169; see also In re 4330 N. 35th St., supra note 2, 142 F.R.D. at 165-66 (discussing "the court" in context of Rule 41(e), Fed.R.Crim.P., and determining that said phrase applies equally to district court and magistrate judges).

Accordingly, the court hereby finds and rules that the term "the court" as it is used in Rule 17(c), Fed.R.Civ.P., includes actions taken by a magistrate judge as well as those taken by a district judge.

(2) "Dispositive" or "Nondispositive"?

Both the propriety of the magistrate judge's order and this court's standard of review are dependent upon whether appointment of a guardian ad litem constitutes a dispositive or a non-dispositive action. Although the terms "dispositive" and "non-dispositive" are absent from the language of 28 U.S.C. § 636, they do appear in Rule 72, Fed.R.Civ.P., as well as the local rules of this court. "Although Rule 72 makes no express reference to § 636, the Advisory Notes make clear that when Congress included the term `nondispositive' in Rule 72(a), it was referring specifically to those matters not expressly exempted in § 636(b)(1)(A)." Robinson v. Eng, 148 F.R.D. 635, 639 (D.Neb.1993) (citation omitted).⁸

The touchstone, therefore, is whether the magistrate judge's determination is dispositive; that is, whether it disposes of a party's claim or defense because "it is only those rulings which finally resolve a party's `claim or defense' which are considered `dispositive' within the meaning of § 636(b) and Fed. R.Civ.P. 72." Robinson, supra, 148 F.R.D. at 640 (emphasis added) (citing Rule 72(b), Fed.R.Civ.P.); see also Adkins v. Mid-American Growers, Inc., 143 F.R.D. 171, 176 (N.D.Ill.1992) ("`Dispositive' is merely a term used to describe the motions listed in subsection 636(b)(1)(A), each of which addresses the merits of the parties' claims as opposed to issues collateral to the merits (e.g., discovery requests, protective orders, or other procedural orders)."); McDonough v. Blue Cross of N.E. Pennsylvania, 131 F.R.D. 467, 472 (W.D.Pa.1990) (noting that "Congress has defined civil dispositive matters" by specific delineation in 28 U.S.C. § 636(b)(1)(A)).

As noted in part 1.b.(1), supra, the courts possess an "inherent power to appoint a guardian ad litem when it appears that the minor's general representative has interests which may conflict with those of the person she is supposed to represent." Hoffert v. General Motors Corp., 656 F.2d 161, 164 (5th Cir.1981), cert. denied sub nom., Cochrane & Bresnahan v. Smith, 456 U.S. 961, 102 S.Ct. 2037, 72 L.Ed.2d 485 (1982) (emphasis added) (citations omitted); see also Horacek v. Exon, 357 F.Supp. 71, 74 (D.Neb.1973) (noting that while "parents in all good conscience may desire one remedy ... it would not necessarily be in the best interests of their children" and indicating that "a discreet course would be to provide for the appointment of a guardian ad litem, who would not displace the parents as representatives of the plaintiffs but would be alert to recognize potential and actual differences in positions asserted by the parents and positions that need to be asserted on behalf of the plaintiffs"). In his September 6, 1994, order, the magistrate judge found and ruled as follows:

Obviously, Harvey Rubin's interests conflict with Carol Rubin's interests since they are on opposing sides in this litigation.

Rebecca's interests conflict with her mother's because Rebecca wishes to withdraw from the litigation while her mother wishes to pursue it.⁹ Rebecca's interests also conflict with Harvey Rubin's because she is suing him while residing with him in Connecticut. Since all of the parties' interests conflict, the court finds that neither parent is a suitable party to determine whether Rebecca's best interests would be served by voluntary dismissal.

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Accordingly, the court finds that it is necessary to appoint a guardian ad litem who

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