Opinion
22-CV-11158-PGL
08-08-2024
SANJEEV LATH, Plaintiff, v. LLOYD J. AUSTIN III Secretary of Defense, Defendant.
REPORT AND RECOMMENDATION
PAUL G. LEVENSON U.S. MAGISTRATE JUDGE
Before the Court is Plaintiff Sanjeev Lath's (“Plaintiff”) motion to withdraw consent to jurisdiction and vacate reference to the magistrate judge. Docket No. 118. To summarize the relevant procedural history: the parties filed written consent to jurisdiction before a magistrate judge (Docket No. 74); Judge Gorton entered an order approving the consent (Docket No. 75); and the case was assigned to me (Docket No. 76).
As Plaintiff acknowledges in his motion, Plaintiff bears the burden to show “extraordinary circumstances” to vacate the reference of a civil matter to a magistrate judge. See Docket No. 118, at 1; see also 28 USC § 636 (c)(4); Opalenik v. Labrie, No. CV 11-30065-MGM, 2015 WL 4274992, at *3 (D. Mass. July 15, 2015) (“If Plaintiffs wished to withdraw their consent, they should have sought to do so under 28 U.S.C. § 636(c).”). Plaintiff also acknowledges that “adverse rulings . . . do not constitute extraordinary circumstances.” Docket No. 118, at 2; accord MacNeil v. Americold Corp., 735 F.Supp. 32, 37 (D. Mass. 1990) (“Prior adverse rulings, in themselves, cannot form the predicate for disqualification.”).
As grounds for his motion, Plaintiff asserts that Judge Gorton, the prior presiding judge, “is familiar with the facts of the case and has already made a dispositive ruling,” one that went, to some degree, in Plaintiffs favor. Docket No. 118, at 2. It is literally true, as Plaintiff contends, that Plaintiff's motion is not predicated on any “adverse ruling” by the magistrate judge. Plaintiff's motion is, however, based on a ruling by the district judge that Plaintiff perceives as favorable to his case. Either way, the request amounts to “judge shopping,” which cannot be said to satisfy the requirement of demonstrating “extraordinary circumstances.” See Blizard v. Fielding, 454 F.Supp. 318, 321 (D. Mass. 1978) (“It should be self-evident that adverse rulings in themselves do not create judicial partiality. Otherwise, ‘there would be almost no limit to disqualification motions and the way would be opened to a return to “judge shopping,” a practice which has been for the most part universally condemned.'”) (citations omitted) (quoting Lazofsky v. SommersetBus Co., 389 F.Supp. 1041, 1044 (E.D.N.Y. 1975)), affdsub nom., Blizardv. Frechette, 601 F.2d 1217, 1222 (1st Cir. 1979).
Plaintiff cites legislative history that supports the proposition that trial before an Article III judge may be required in cases “likely to have wide precedential importance.” Docket No. 118, at 3. There is, however, nothing to suggest that this is such a case.
In sum, Plaintiff has not demonstrated any cognizable basis for withdrawal of his consent to trial before a magistrate judge.
There appears to be a split of authority as to whether a magistrate judge (or only a district judge) may rule upon on a motion to vacate reference or otherwise withdraw consent under 28 USC § 636(c)(4). See generally Brama v. Target Corp., No. 14 CV 6098, 2018 WL 318482, at *2 (N.D. Ill. Jan. 8, 2018) (collecting cases). Finding no binding authority in the First Circuit, in an abundance of caution, I enter this report and recommendation on the motion.
CONCLUSION
I direct the Clerk to assign this matter to a District Judge for purposes of considering whether to adopt this Report and Recommendation.
I recommend that the Court DENY Plaintiff's motion to withdraw consent to jurisdiction and vacate reference to a magistrate judge [Docket No. 118].
The parties are hereby advised that under the provisions of Federal Rule of Civil Procedure 72(b), any party who objects to this recommendation must file specific written objections thereto with the Clerk of this Court within fourteen days of the party's receipt of this Report and Recommendation. The written objections must specifically identify the portion of the proposed findings, recommendations, or report to which objection is made and the basis for such objections. The parties are further advised that the United States Court of Appeals for this Circuit has repeatedly indicated that failure to comply with Rule 72(b) will preclude further appellate review of the District Court's order based on this Report and Recommendation. See Keating v. Sec y of Health & Hum. Servs., 848 F.2d 271 (1st Cir. 1988); United States v. Valencia-Copete, 792 F.2d 4 (1st Cir. 1986); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir. 1983); United States v. Vega, 678 F.2d 376, 378-79 (1st Cir. 1982); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980); see also Thomas v. Arn, 474 U.S. 140 (1985).