Howlett v. School Board of the City of Norfolk

Full title: FRANKLIN D. HOWLETT, Plaintiff, v. SCHOOL BOARD OF THE CITY OF NORFOLK…

Court: United States District Court, E.D. Virginia, Norfolk Division

Date published: Apr 9, 2001

ACTION NO. 2:00cv168 (E.D. Va. Apr. 9, 2001)

Opinion

ACTION NO. 2:00cv168

April 9, 2001

ORDER

TOMMY E. MILLER, United States Magistrate Judge

This matter was referred to the undersigned United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(c)(1) and Rule 72 of the Rules of the United States District Court for the Eastern District of Virginia.

I. PROCEDURAL BACKGROUND

On September 15, 2000, the Court granted the School Board of the City of Norfolk's ("School Board's") Motion for Summary Judgment and entered judgment for the defendant. A. Robinson Winn, Esq. represented Mr. Howlett and Daniel R. Hagemeister, Esq. represented the School Board. Franklin D. Howlett ("Mr. Howlett"), acting pro se, filed a Motion to Extend Time for a New Trial [Document No. 30] ("Original Motion") on October 13, 2000, and a memorandum in support of the motion on October 25, 2000. Also on October 25, 2000, Mr. Howlett filed a motion for the removal of his attorney [Document No. 32]. On November 17, 2000, the Court entered an Order allowing A Robinson Winn, Esq. to withdraw as counsel for Mr. Howlett.

Proceeding pro se, Mr. Howlett filed an Amended Motion to Nullify and Void the Court's Granting of the Motion for Summary Judgment, to Extend Time to Appeal the Court's Decision, to Grant Permission to Amend the Original Motion and to Grant a New Trial [Document No. 38] ("Amended Motion") on December 1, 2000. On December 6, 2000, the Court entered an Order stating that to the extent Mr. Howlett' s Original Motion and Amended Motion were motions for a new trial pursuant to Federal Rule of Civil Procedure 59, they were denied as untimely. Because Mr. Howlett was acting pro se when he filed the motions, the Court construed the motions liberally as motions filed pursuant to Federal Rule of Civil Procedure 60(b), and ordered the School Board to respond. The School Board filed a response to the motions on December 20, 2000 and Mr. Howlett filed a reply on January 5, 2001.

On January 24, 2001, Mr. Howlett filed a Motion to Submit Recently Discovered Information [Document No. 43]. The School Board filed an opposition to the request on January 24, 2001 and Mr. Howlett replied on January 29, 2001. This motion is hereby GRANTED, and the Court will consider the information provided.

II. ANALYSIS

Mr. Howlett has raised two issues in the motions filed subsequent to the Court's granting the School Board's Motion for Summary Judgment. First, Mr. Howlett has asserted that the Court did not have jurisdiction to rule on the motion, because he had not consented to proceed before a magistrate judge. Secondly, Mr. Howlett asserts that he should be granted relief from judgment because his attorney was ineffective and did not present the meritorious defense which Mr. Howlett had to the School Board's Motion for Summary Judgment.

A. Rule 60(b)(4) — Consent to Proceed Before a United States Magistrate Judge

In Mr. Howlett's Original Motion and Amended Motion, he contends that his counsel did not consult him prior to consenting to proceed before a United States Magistrate Judge. He notes that only counsel's signature appears on the "Consent to Proceed Before a United States Magistrate Judge" form, and states that he did not know that this form had been endorsed by counsel until he reviewed the Court's file following the September 15, 2000 ruling on the School Board's Motion for Summary Judgment. To the extent the Original Motion and Amended Motion challenge the undersigned's authority to enter a final disposition, they will be construed as motions under Federal Rule of Civil Procedure 60(b)(4).

The statutory authority for a magistrate judge to dispose of the School Board's Motion for Summary Judgment, rather than preparing a report and recommendation for disposition by the district judge, is found in 28 U.S.C. § 636(c), which provides in pertinent part:

(1) Upon the consent of the parties, a . . . magistrate [judge] . . . may conduct any or all proceedings in a jury or non jury 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 . . . .

(2) If a magistrate [judge] is designated to exercise civil jurisdiction under paragraph (1) of this subsection, the clerk of court shall, at the time the action is filed, notify the parties of the availability of a magistrate [judge] to exercise such jurisdiction. The decision of the parties shall be communicated to the clerk of court. Thereafter, either the district court judge or the magistrate [judge] may again advise the parties of the availability of the magistrate [judge], but in so doing, shall also advise the parties that they are free to withhold consent without adverse substantive consequences. Rules of court for the reference of civil matters to magistrate [judges] shall include procedures to protect the voluntariness of the parties' consent.

28 U.S.C. § 636(c)(1) and (2). Consent must be clear and unambiguous. See Adams v. Heckler, 794 F.2d 303, 307 (7^th Cir. 1986). On April 21, 2000, Mr. Howlett's counsel signed and filed a form which provides, [i]n accordance with the provisions of 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73, the parties in this case hereby voluntarily waive their right to proceed before a United States district judge and consent to have a United States magistrate judge conduct any and all further proceedings in the case, including the trial, and order the entry of a final judgment."¹ Counsel's written consent to proceed before a magistrate judge is "clear and unambiguous." See United States v. Muhammad, 165 F.3d 327, 331 (5^th Cir.), cert. denied, 526 U.S. 1138 (1999); General Trading Inc. v. Yale Materials Handling Corp., 119 F.3d 1485, 1495 (11^th Cir. 1997), cert. denied, 523 U.S. 1055 (1998).

1 The Consent to Trial by Magistrate Judge form signed by counsel for the School Board was filed on March 16, 2000 [Document 3], and the Consent to Trial by Magistrate Judge form signed by counsel for Mr. Howlett was filed on April 21, 2000 [Document 5].

The Supreme Court has recognized that our judicial system is based on "representative litigation, in which each party is deemed bound by the acts of his lawyer-agent." Link v. Wabash Railroad Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962). Mr. Howlett admits that his attorney consented to proceed before a magistrate judge. However, his attorney failed to discuss the issue with him prior to the consent. Mr. Howlett submitted a statement of his attorney in response to a complaint he has filed with the Virginia State Bar, which includes the following,

[a]s to the consent of proceeding before a Magistrate, this decision was made on my part as part of trial strategy and I do not feel that I should have provided that document to Mr. Howlett. I do not remember whether or not I conferred with him regarding proceeding before a Magistrate but do not feel that it was harmful to his interests.

See Request to Submit Recently-Discovered Information, Exhibit 2, p. 4.

Although the statute refers to consent of the parties, it does not state that an attorney's consent on behalf of his client is invalid for purposes of § 636(c). The general rule is that a party which voluntarily selects counsel is bound by the actions taken on the party's behalf Link v. Wabash Railroad Co., 370 U.S. at 633-34. Several courts have addressed a party's claim that it did not consent to proceed before a magistrate judge, but that counsel unilaterally consented. These courts have overwhelmingly held that an attorney may consent on behalf of a party to proceed before a magistrate judge, and that the consent is binding on the party. See United States v. Muhammad, 165 F.3d at 330-31;General Trading Inc. v. Yale Materials Handling Corp., 119 F.3d at 1494-97; Jurado v. Klein Tools, Inc., 755 F. Supp. 368, 370-71 (D. Kan. 1991); Frank v. County of Hudson, 962 F. Supp. 41, 42-44 (D.N.J. 1997); Germany. Heckler, 804 F.2d 366, 370-71 (7^th Cir. 1986); Parker v. Bancoklahoma Mortgage Co., 113 F.3d 1246, 1997 WL 259486, *3 (10^th Cir. 1997); Woo v. City of New York, 1997 WL 277368, *1-5 (S.D.N.Y. 1997);DePonce v. Buxbaum, 1995 WL 51098, *5 (S.D.N.Y. 1995).

Mr. Howlett was present during the oral argument and the magistrate judge's ruling on the School Board's Motion for Summary Judgment. Neither he nor his attorney made any objection to the magistrate judge's jurisdiction to rule on the motion. It would not be appropriate to allow a party to stand silent while their case is heard and ruled upon by a magistrate judge, and then when they are displeased with the outcome, to allow them a new hearing due to their assertion that they did not consent to proceed before a magistrate judge. A party is bound by his attorney's consent to proceed before a magistrate judge. "One can only imagine the havoc that would ensue should we allow otherwise." United States v. Muhammad, 165 F.3d at 331. Based on the case law cited above, the Court had jurisdiction pursuant to 28 U.S.C. § 636(c)(1) and Rule 72 of the Rules of the United States District Court for the Eastern District of Virginia to rule on the School Board's Motion for Summary Judgment. Therefore, Mr. Howlett's motion pursuant to Rule 60(b)(4) is DENIED.

In addition, this portion of Mr. Howlett's motion should be denied for failure to meet the threshold standard discussed below.

B. Rule 60(b)(2) and (3) — Negligence of Counsel

The Court has construed the remaining arguments in Mr. Howlett's Original Motion and Amended Motion as a motion for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b)(2) and (3). The Fourth Circuit has recognized that, "[t]he remedy provided by [this] Rule is extraordinary and is only to be invoked upon a showing of exceptional circumstances." Compton v. Alton Steamship Co., Inc., 608 F.2d 96, 102 (4th Cir. 1979). A threshold condition for granting relief pursuant to a Rule 60(b) motion is that the plaintiff must demonstrate the existence of a meritorious claim of defense so that the granting of relief will not be futile. Boyd v. Bulala, 905 F.2d 764, 769 (4^th Cir. 1990). Further, the negligence or carelessness of a party's attorney is not sufficient grounds to reopen a case. See Universal Film Exchanges, Inc. v. Lust, 479 F.2d 573 (4^th Cir. 1973); Lavespere v. Niagara Machine and Tool Works, Inc., 910 F.2d 167 (5^th Cir. 1990) (holding it would be an abuse of discretion to reopen case to consider evidence which was not submitted in a timely manner due to the negligence or carelessness of the party's attorney), cert. denied, 510 U.S. 859 (1993).

Following a review of all of the motions, memoranda, and exhibits presented by Mr. Howlett, the Court finds he has failed to present any evidence that he had a meritorious claim in opposition to the summary judgment filed by the School Board. Consequently, Mr. Howlett has failed to meet the threshold standard of a Rule 60(b) motion showing that his claim may have merit, and the Court DENIES the Original Motion and Amended Motion pursuant to Federal Rule of Civil Procedure 60(b).

IT IS ORDERED AND ADJUDGED that the Original Motion and Amended Motion for Relief pursuant to Federal Rule of Civil Procedure 60(b) are DENIED.