Swallow Turn Music v. Tidal Basin, Inc.

• Decision Date: 28 February 1984
• Docket Number: Civ. No. 81-0350 P.
• Parties: SWALLOW TURN MUSIC, et al., Plaintiffs, v. TIDAL BASIN, INC., et al., Defendants.
• Court: U.S. District Court — District of Maine

581 F. Supp. 504

SWALLOW TURN MUSIC, et al., Plaintiffs, v. TIDAL BASIN, INC., et al., Defendants.

Civ. No. 81-0350 P.

United States District Court, D. Maine.

February 28, 1984.

John W. Philbrick, Verrill & Dana, Portland, Me., for plaintiffs.

Francis M. Jackson, III, Jackson & Pallas, Westbrook, Me., for defendants.

MEMORANDUM OF DECISION AND ORDER

GENE CARTER, District Judge.

This matter is before the Court after hearing on Defendants' Revocation of Consent to proceed in this matter by reference of the District Court to the United States Magistrate pursuant to 28 U.S.C. § 636(c). The action was commenced by the Plaintiffs' filing, on September 10, 1981, of a Complaint seeking damages and injunctive relief for copyright infringement under 17 U.S.C. asserting the jurisdiction of this Court under 28 U.S.C. § 1338(a). The Plaintiffs set forth four causes of action for copyright infringement based on the Defendants' public performance of copyrighted musical compositions. Defendants' responsive pleading, which was an Answer containing two affirmative defenses, was filed on September 29, 1981. The affirmative defenses asserted were that the Complaint failed to state a cause of action for copyright infringement upon which relief may be granted, and that Plaintiffs' claims were barred by the doctrine of estoppel. The matter remained pending until June 6, 1983, on which date the parties, acting through counsel, executed a Consent to Proceed before the United States Magistrate. The consent reads as follows:

In accordance with the provisions of Title 28 U.S.C. Section 636(c), the parties to the captioned civil matter hereby waive their right to proceed before a Judge of the United States District Court and consent to have United States Magistrate D. Brock Hornby conduct any and all further proceedings in the case (including the trial) and order the entry of judgment.

The consent form executed by counsel for all parties also provided:

CONSENT TO APPEAL TO JUDGE, U.S.D.C.

Any appeal shall be taken to the United States Court of Appeals for the First Circuit, unless all parties further consent, by signing below, to take any appeal to a judge of the district court, in accordance with 28 U.S.C. Section 636(c)(4).

Both counsel signed in the spaces provided, indicating that any appeal should be taken to a judge of this Court pursuant to § 636(c)(4). The consent form was filed with the Court on July 8, 1983. This Court thereafter referred the matter to Magistrate Hornby "for the conduct of all further proceedings and the entry of judgment in accordance with Title 28 U.S.C. Section 636(c) and the foregoing consent of the parties." Prior to the docketing of the consent and the Court's subsequent Order of Reference, the matter had proceeded through various stages of the discovery and pretrial motion processes. Thereafter, further motion practice took place before the designated United States Magistrate. The pretrial process culminated in entry on January 5, 1984, of the Magistrate's Final Pretrial Order in which he denied the pending Motion of the Defendants for Summary Judgment, indicated disposition of other final pretrial activities, and scheduled the matter for trial before him, commencing on Thursday, March 1, 1984.

Defendants filed the Revocation of Consent to Proceed Before the Magistrate on February 17, 1984. The Revocation of Consent reads as follows:

NOW COME the Defendants, through counsel, and due to serious questions regarding the jurisdiction of the Magistrate to try the case in light of recent federal rulings, withdraw their previously entered Consent to have the Magistrate hear this matter pursuant to 28 U.S.C. § 636 and further state that they no longer voluntarily consent to such hearing.¹

Plaintiffs filed on February 22, 1984, a Memorandum in Opposition to Defendants' Revocation of Consent. The Court treats this memorandum as sufficient for all purposes to constitute an objection to the Revocation of Consent proposed by the Defendants pursuant to Local Rule 19(b). On February 23, 1984, the Defendants filed a Memorandum in Support of the prior Revocation of Consent. This Court heard oral argument of counsel with respect to the matter of revocation of the consent to proceed before the Magistrate on February 24, 1984. In their written submissions and initially at oral argument, the Defendants put forth two contentions: (1) that the prior Consent of the Defendants to Proceed Before the Magistrate pursuant to 28 U.S.C. 636(c) is invalid and subject to revocation because the Magistrate may not be constitutionally authorized, even by consent of the parties, to exercise the expanded jurisdiction purportedly conferred upon him by 28 U.S.C. § 636(c) to hear civil trials in jury and nonjury matters, and (2) that the Magistrate in this district is not authorized to conduct civil trials pursuant to the provisions of 28 U.S.C. § 636(c) because of the absence of a designation by local rule or order of the Magistrate to act as allowed by the language of § 636(c)(1).² At oral argument Defendants' counsel withdrew the latter contention when apprised of the fact that an Order designating the Magistrate to act under the provisions of § 636(c) had in fact been entered in this district.³ Accordingly, it is necessary for this Court to address only the first contention put forth by the Defendants.

Defendants' argument with respect to this contention, simply put, is that this Court should recognize the rationale set forth in the case of Pacemaker Diagnostic Clinic v. Instromedix, Inc., 712 F.2d 1305 (9th Cir.1983), reh'g en banc granted 718 F.2d 971 (9th Cir.1983), in which the Ninth Circuit Court of Appeals found § 636(c) to be violative of Article III of the United States Constitution.⁴ Defendants' counsel points to the decision in Horton v. State Street Bank & Trust Co., 590 F.2d 403 (1st Cir.1979), as indicative of the fact that the Court of Appeals for this Circuit would follow the Pacemaker decision with respect to the constitutionality of § 636(c). Counsel also points to this Court's decisions in In re South Portland Shipyard and Marine Railways Corp., 32 B.R. 1012 (D.C. Me.1983), and In Re Romeo Roy, Inc., 32 B.R. 1008 (D.C.Me.1983), in which this Court decided the issue of the continuing viability of Local Rule 41 of this Court. Those cases were decided in the context of the decision of the United States Supreme Court in Northern Pipeline Construction Co. v. Marathon Pipeline Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982), in which that Court determined that § 241(c) of the Bankruptcy Act of 1978, 28 U.S.C. § 1471(c) (Supp. IV 1980), violated Article III of the Constitution.⁵

Plaintiffs' counsel, on the other hand, points to counter-balancing persuasive authority of the Court of Appeals for the Third Circuit in the case of Wharton-Thomas v. United States, 721 F.2d 922 (3d Cir.1983), in which that Court, rejecting the reasoning of the opinion in the Pacemaker case, held that § 636(c) did not violate Article III of the federal Constitution. Plaintiffs' counsel further suggests, on the rationale of Wharton-Thomas, that any problem with the constitutionality of § 636(c) is cured by virtue of the fact that the statutory procedure requires the consent of the parties before a reference may be made to a Magistrate for trial.

Both counsel have argued their positions on the basis that there is no controlling authority in this Circuit upon the precise question of the constitutionality of § 636(c). Thus, they urge the Court to elect between the rationale of Pacemaker I on the one hand, and that of Wharton-Thomas, on the other, to reach a decision as to whether or not there is valid basis to allow the Defendants to withdraw their consent to proceed before the Magistrate in this matter.

The Court finds it unnecessary, on the particular facts of this case, to make that difficult election. The particular fact that obviates the need in this case to venture into the constitutional thicket is that the consent to proceed before the Magistrate here specifically provided for review of the Magistrate's decision by the District Court pursuant to the statutory language of § 636(c)(4). That language provides that "the parties may further consent to appeal on the record to a judge of the district court in the same manner as on an appeal from the judgment of the district court to a court of appeals." 28 U.S.C. § 636(c)(4) (emphasis added). Thus, the case is factually distinguishable from Wharton-Thomas since that case was decided on the basis of a consent which was treated as providing only for review by the court of appeals. Wharton-Thomas, 721 F.2d at 924. The same distinction appears to be valid as to Pacemaker.⁶ The clear implication of the Third Circuit Court of Appeals' treatment of the possibility of a consent authorizing appeal from the Magistrate to the district court is that such review by the district court would vitiate the defect that arose there precisely because the district court had not acted on the Magistrate's decision. Id. at 924. That implication is supported in the U.S. Supreme Court's decisions in Crowell v. Benson, 285 U.S. 22, 52 S.Ct. 285, 76 L.Ed. 598 (1932), and United States v. Raddatz, 447 U.S. 667, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980), where the court determined that any concern for violation of Article III was laid to rest wherever the district court retained the ultimate decision-making authority with respect to the Magistrate's decision.⁷

It may be important, however, that in both Crowell and Raddatz, the district court's review would be conducted on a de novo basis. The express terms of § 636(c)(4) provide that the appeal to the district court there permitted shall be "in the same manner as on an appeal from the judgment of the district court to a court of appeals." Id. The statute clearly authorizes the district court to conduct only an appellate review. Thus, there may be raised the...