Opinion
CASE NO. 2:09-CV-737-FtM-36DNF.
June 8, 2010
ORDER
THIS CAUSE came on for consideration upon the Report and Recommendation filed by United States Magistrate Douglas N. Frazier on January 25, 2010, which recommends that the Court dismiss Plaintiff's action without prejudice for his failure to pay the required filing fee or to submit the application to proceed in forma pauperis (Dkt. 13). Plaintiff filed objections to the Report and Recommendation on February 2, 2010 (Dkt. 14).
I. BACKGROUND
On November 6, 2009, Plaintiff filed his complaint against Defendants (Dkt. 1). The case was placed on the Unassigned Judge's docket, and Judge Frazier was assigned as the Magistrate (2:09-CV-737-FtM-99DNF). On November 9, 2009, Judge Frazier issued an order directing Plaintiff to file the necessary filing fee pursuant to 28 U.S.C. § 1914(a) or to submit an application to proceed in forma pauperis by November 30, 2009 (Dkt. 4). Plaintiff filed an emergency motion to strike the Order (Dkt. 5). Judge Frazier denied the Emergency Motion (Dkt. 6).
Plaintiff states that his initial pleading is a "petition" and not a "complaint," and, therefore, he should not be required to pay the filing fee or to file an application to proceed in forma pauperis (Dkt. 5, ¶ 4-6). A "complaint" is "[a]n initial pleading that starts a civil action and states the basis for the court's jurisdiction, the basis for the plaintiff's claim, and the demand for relief." Black's Law Dictionary 279 (7th ed. 1999). A "petition" is "[a] formal written request presented to a court or other official body." Black's Law Dictionary 1165 (7th ed. 1999). The terms are often used interchangeably to refer to the first pleading in a lawsuit. See id. Therefore, the Court treats Plaintiff's initial pleading as a complaint.
On November 30th, Plaintiff did not pay the filing fee or submit an application to proceed in forma pauperis. Instead, Plaintiff filed an objection to Judge Frazier's order denying the Emergency Motion along with a motion for reconsideration on December 8, 2009 (Dkt. 7). On December 30, 2009, Judge Frazier denied Plaintiff's Motion for Reconsideration (Dkt. 9). The Court directed the Clerk to send Plaintiff an Affidavit of Indigency and gave Plaintiff twenty-one (21) days to either pay the filing fee or request leave to proceed in forma pauperis.
On January 8, 2010 Plaintiff filed a motion to disqualify Judge Frazier, which was denied (Dkt. 10-11). On January 21, 2010 Plaintiff filed objections to Judge Frazier's previous orders and a motion for reconsideration of the order denying the Motion to Disqualify (Dkt. 12).
After Plaintiff failed to comply with the Court's directives, Judge Frazier issued a report and recommendation to dismiss Plaintiff's complaint without prejudice for his failure to pay the filing fee or to file an application to proceed in forma pauperis. Plaintiff objected to the Report, arguing that he did not consent to Judge Frazier exercising jurisdiction over this case.
II. ANALYSIS
United States Magistrate Judges have the authority within the District where they are appointed to address various matters in the court. 28 U.S.C. § 636(a)(1)-(5). A federal district court judge may designate a magistrate judge "to hear and determine any pretrial matter pending before the court." 28 U.S.C. § 636(b)(1)(A). Furthermore, a federal district court judge "may reconsider any pretrial matter . . . where it has been shown that the magistrate judge's order is clearly erroneous or contrary to law." Id.
The court where the magistrate has been appointed may also assign additional duties to the magistrate as long as the assignment is not inconsistent with the Constitution and laws of the United States. 28 U.S.C. § 636(b)(3). "Each district court shall establish rules to which the magistrate judges shall discharge their duties." 28 U.S.C. § 636(b)(3). In the Middle District of Florida, Local Rule 6 governs the duties of magistrate judges. "The assignment of duties to United States Magistrate Judges by the judges of the Court may be made by standing order entered jointly by the resident judges in any Division of the Court; or by any individual judge, in any case or cases assigned to him, through written order or oral directive made or given with respect to such case or cases." Middle District of Florida Local Rule. 6.01(b). With the authority from the District Court Judge(s), Magistrates may perform an array of duties, including the "[s]upervision and determination of all pretrial proceedings and motions made in civil cases including, without limitation, rulings upon all procedural and discovery motions, and conducting pretrial conferences. . . ." Middle District of Florida Local Rule 6.01(c)(18).
To address all matters in a civil case, the parties must consent to the magistrate exercising jurisdiction over the action. 28 U.S.C. § 636(c)(1). It is only with this consent that a magistrate "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 or courts he serves." Id.; see also Fed.R.Civ.P. 73(a), (b)(1). Upon the entry of judgment by the magistrate, a party may then appeal directly to the court of appeals. Fed.R.Civ.P. 73(c).
In this case Plaintiff objects to all of Judge Frazier's orders in this case because "[n]o U.S. District Judge of this Court has entered any order denying any motions, objections, etc., and therefore every order entered by U.S. Magistrate Judge Douglas N. Frazier, is in violation of 28 U.S.C. § 636(c)(2). . . ." (Dkt. 12, p. 2). Additionally, Plaintiff states that he did not consent to Judge Frazier exercising jurisdiction over his action (Dkt. 5, ¶ 4; Dkt. 7, ¶ 3).
Pursuant to the Local Rules of the Middle District of Florida, on February 14, 2001, the District Court Judges issued an order on the assignment of duties of the Magistrate Judges in Tampa and Fort Myers (Dkt. 1, 6:01-mc-00024, attached hereto as "Attachment 1"). In the Order the Judges of the Middle District of Florida stated that the Magistrates in Tampa and Fort Myers were authorized to perform the duties enumerated in Local Rule 6.01(c), which includes the ability to handle pretrial matters. Therefore, Judge Frazier had the authority to handle pretrial matters in this case.
Second, parties only need to consent to the jurisdiction of a magistrate judge when the magistrate handles all of the matters in a civil action, including entering judgment. Because Judge Frazier entered orders only for pretrial matters, Plaintiff's consent to Judge Frazier's jurisdiction was not necessary.
III. CONCLUSION
After carefully considering Plaintiff's Complaint, Judge Frazier's previous orders, the Report and Recommendation, and Plaintiff's Objections, in addition to undertaking a de novo review of the legal determinations recommended in the Report and Recommendation, the Court concludes that Judge Frazier's Report and Recommendation should be confirmed and adopted.
Accordingly, it is now ORDERED and ADJUDGED as follows:
1. The Report and Recommendation of the Magistrate Judge (Dkt. 13) is ADOPTED, CONFIRMED and APPROVED in all respects and is made a part of this order for all purposes, including appellate review.
2. This action is dismissed without prejudice.
3. The Clerk is directed to TERMINATE all pending motions and deadlines and enter judgment accordingly and close this case.
DONE AND ORDERED at Ft. Myers, Florida.
UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA AND FORT MYERS DIVISIONS IN RE: Assignment of Duties to the United States Magistrate Judges in the Tampa and Fort Myers Divisions No. ______ 6:01 mc 24-ORLORDER
Pursuant to 28 USC § 636 and Rule 6.01(b) of the Rules of this Court, the United States Magistrate Judges of the District having resident station in the Tampa and Fort Myers Divisions are hereby assigned the judicial duties, responsibilities and powers as hereafter provided.1. The full-time United States Magistrate Judges at Tampa and Fort Myers are hereby authorized to perform those duties enumerated in Rule 6.01(c), sub-paragraphs (1) through (26), inclusive, of the Rules of this Court.
2. The duties, responsibilities and powers herein assigned to the United States Magistrate Judges may be performed and exercised by them in all cases without further order, assignment or direction; provided, however, nothing herein shall be construed as preventing any District Judge from performing the same duties and exercising the same powers in any case or cases in which he or she chooses to do so.
3. In addition to the duties, responsibilities and powers herein assigned to the United States Magistrate Judges, any District Judge may at any time, in any case or cases for which he or she has responsibility, assign to a Magistrate Judge through written order or oral directive made or given with respect to such case or cases, any and all additional duties which are not inconsistent with the Constitution and laws of the United States.
4. Upon the filing of the initial paper or pleading in any case docketed in the Tampa or Fort Myers Division, the Clerk of Court, in addition to assigning the case to an individual Judge pursuant to Rule 1.03(b), M.D. Fla. Rules, shall also designate with respect to each Tampa Division case, at random and in equal shares, an individual full-time United States Magistrate Judge resident in the Tampa Division, and with respect to each Fort Myers Division case, the full-time Magistrate Judge resident in the Fort Myers Division. The assigned Magistrate Judge shall thereafter perform in such cases all those duties to be performed by United States Magistrate Judges as otherwise provided by this Order or by an order of reference, if any, entered by the presiding judge; provided, however, that any full-time United States Magistrate Judge may act in any case when the designated Magistrate Judge is temporarily unavailable due to illness, absence or engagement in other judicial business. The designation of a Magistrate Judge in each case shall be shown by adding the Magistrate Judge's three initials in the case number. The Magistrate Judges shall be designated as follows: Magistrate Judge Thomas G. Wilson will be TGW; Magistrate Judge Elizabeth A. Jenkins will be EAJ; Magistrate Judge Thomas B. McCoun, III, will be TBM; Magistrate Judge Mark A. Pizzo will be MAP; Magistrate Judge Mary S. Scriven will be MSS; and, Magistrate Judge Douglas N. Frazier will be DNF.
5. All matters submitted or considered by a United States Magistrate Judges pursuant to 28 USC § 636(b) and normally given a Magistrate Judge's docket number prior to the assignment of a docket number by the Clerk of the Court shall be divided equally by the Magistrate Judges in accordance with schedules or procedures adopted from time to time by them.
6. Without limiting in any manner the foregoing provisions of this Order, it shall be the general policy of the District Judges to make maximum use of the judicial resources of the United States Magistrate Judges as follows:
(a) In criminal proceedings, to consider all pretrial motions, except that a Magistrate Judge shall not determine motions to sever, to continue or to suppress unless specifically referred to the Magistrate Judge by the presiding District Judge.
(b) In civil proceedings, to conduct hearings or otherwise consider and dispose of all procedural and discovery motions (or, where the limitations of Rule 6.01(c)(18) of the Local Rules apply, to make recommendations concerning) any and all pretrial motions (exclusive of motions made pursuant to Rule 12, F.R.Civ.P., which are readily susceptible of disposition by the District Judges upon review of the papers and brief themselves).
(c) In habeas corpus and administrative review proceedings, to exercise fully those powers enumerated in Rule 6.01(c)(17) and (22), respectively, of the Local Rules.
This Order shall supersede all prior Orders of the Court pertaining to the same subject matter.
IT IS SO ORDERED.
DONE AND ORDERED at Tampa, Florida.