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Serine v. Peterson

United States Court of Appeals, Ninth Circuit
Mar 31, 1993
989 F.2d 371 (9th Cir. 1993)

Summary

holding that the findings and recommendation of a magistrate judge are not appealable until adopted by the district court

Summary of this case from Martinez v. Barr

Opinion

No. 93-35006.

Submitted March 24, 1993.

The panel finds this case suitable for decision without oral argument.

Decided March 31, 1993.

Alden E. Serine, Salem, OR, for plaintiff-appellant.

Michael E. Swain, Swain, Betterton Eder, Salem, OR, for defendants-appellees Peterson, Quesseth, and Quesseth.

Denise G. Fjordbeck, Dept. of Justice, Salem, OR, for defendant-appellee State of Oregon Right of Way Dept.

Appeal from the United States District Court for the District of Oregon.

Before J. WALLACE, Chief Judge, FARRIS and BRUNETTI, Circuit Judges.



ORDER

Appellees move to dismiss this appeal from a magistrate judge's order for lack of appellate jurisdiction. We grant the motion.

On December 1, 1992, Magistrate Judge Thomas M. Coffin filed a document entitled "Findings and Recommendation and Order" in this case, indicating that the "defendants' motion to dismiss should be allowed and this action dismissed." On December 10, 1992, plaintiff filed his response to the magistrate judge's order with the district court. Without any further action by the magistrate judge or the district court, on December 30, plaintiff filed this notice of appeal. Then, on January 8, 1993, the district court adopted the magistrate judge's findings and recommendation and entered judgment for the defendants. Plaintiff did not file another notice of appeal after final judgment was entered.

Defendants now move to dismiss the appeal. They contend that a magistrate judge's recommendation of dismissal does not constitute a final, appealable order absent consent by the parties, and therefore that the notice of appeal was premature and ineffective. See, e.g., 28 U.S.C. § 636(c)(1); In re San Vicente Medical Partners Ltd., 865 F.2d 1128 (9th Cir. 1989); Alaniz v. California Processors, Inc., 690 F.2d 717 (9th Cir. 1982).

In certain circumstances, this court has considered the prematurity of a notice of appeal to be cured by the subsequent entry of judgment. See e.g., Anderson v. Allstate, 630 F.2d 677 (9th Cir. 1980); Ruby v. Secretary of the Navy, 365 F.2d 385 (9th Cir. 1966); Firchau v. Diamond National Corp., 345 F.2d 269 (9th Cir. 1965). The Supreme Court recently examined this question in FirsTier Mortg. Co. v. Investors Mortg. Ins. Co., 498 U.S. 269, ___, 111 S.Ct. 648, 652, 112 L.Ed.2d 743 (1991).

FirsTier involved a grant of summary judgment from the bench which was not reduced to judgment until after the notice of appeal was filed. Federal Rule of Appellate Procedure 4(a)(2) states: "Except as provided in (a)(4) of this Rule 4, a notice of appeal filed after the announcement of a decision or order but before the entry of the judgment or order shall be treated as filed after such entry and on the day thereof." The Court noted that the Rule's intent is "to protect the unskilled litigant who files a notice of appeal from a decision that he reasonably but mistakenly believes to be a final judgment." Id. 498 U.S. at ___, 111 S.Ct. at 652. Based on this interpretation of Fed.R.App.P. 4(a)(2), the Court set certain parameters on the nonfinal decisions that can be rendered final by a post-appeal entry of judgment. Specifically, the Court found that:

Rule 4(a)(2) permits a notice of appeal from a nonfinal decision to operate as a notice of appeal from the final judgment only when a district court announces a decision that would be appealable if immediately followed by the entry of judgment.

Id. 498 U.S. at ___, 111 S.Ct. at 653 (emphasis in original).

Here, there is no question that the magistrate judge's order was not a final judgment. See, e.g., 28 U.S.C. § 636(c)(1); In re San Vicente Medical Partners Ltd., 865 F.2d 1128 (9th Cir. 1989); Alaniz v. California Processors, Inc., 690 F.2d 717 (9th Cir. 1982). Plaintiff himself betrayed his awareness of this fact by filing objections to the magistrate judge's order in the district court. Unlike the bench ruling at issue in FirsTier, the magistrate judge's order could not be "appealable if immediately followed by the entry of judgment" because the order could not form the basis of a final judgment without subsequent intervention by the district court. See 28 U.S.C. § 636(c)(1); In re San Vicente Medical Partners Ltd., 865 F.2d 1128 (9th Cir. 1989); Alaniz v. California Processors, Inc., 690 F.2d 717 (9th Cir. 1982). The notice of appeal was premature. The appeal is dismissed.


Summaries of

Serine v. Peterson

United States Court of Appeals, Ninth Circuit
Mar 31, 1993
989 F.2d 371 (9th Cir. 1993)

holding that the findings and recommendation of a magistrate judge are not appealable until adopted by the district court

Summary of this case from Martinez v. Barr

holding that Rule 4 did not apply to a notice of appeal filed after a magistrate's recommendation because a recommendation requires intervention by the district court

Summary of this case from Richards v. Holsum Bakery Inc.

holding that a notice of appeal from a magistrate's order was not validated when those recommendations were later adopted by the district court

Summary of this case from Fadem v. U.S.

holding that premature notice of appeal was not cured by subsequent entry of final judgment

Summary of this case from Swain v. Beard

recognizing earlier caselaw and applying FirsTier

Summary of this case from Sumida & Tsuchiyama, LLLP v. Kotoshirodo (In re Kyung Sook Kim)

dismissing appeal for lack of jurisdiction where appellant's notice of appeal was filed after the magistrate's findings and recommendation were filed, but before the district court entered judgment, and appellant did not file a notice of appeal after final judgment was entered

Summary of this case from White v. Yellowstone County
Case details for

Serine v. Peterson

Case Details

Full title:ALDEN E. SERINE, PLAINTIFF-APPELLANT, v. OAKLEY PETERSON, CECIL QUESSETH…

Court:United States Court of Appeals, Ninth Circuit

Date published: Mar 31, 1993

Citations

989 F.2d 371 (9th Cir. 1993)

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