Opinion
Case No. 2:11-cv-481-FtM-99SPC
03-06-2012
VANESSA SHAW, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
ORDER
This matter comes before the Court on the Petitioner, Vanessa Shaw's Motion to Void the Order of the Court (Doc. #8) filed on August 31, 2011. The Defendant, the United States of America (Government) filed its Response (Doc. # 9) on September 2, 2011. The Motion was referred to this Court by the District Court on March 6, 2012. The Motion is fully briefed and ripe for the Court's review.
The Petitioner argues that only the District Court can issue a final order dismissing a case. The Government agrees with the Petitioner and moves the District Court to construe the Order as a Report and Recommendation recommending the Motion to Quash be denied.
A summons enforcement order is a final dispositive and appealable order, Reisman v. Caplin, 375 U.S. 440, 449 (1964), beyond the authority of a magistrate judge to issue. United States v. First National Bank, 628 F.2d 871, 873 (5th Cir. 1980); U.S. v. Wisnowski, 580 F.2d 149 (5th Cir. 1978); U.S. v. Stoecklin, 848 F. Supp.1521, 1523 (M.D. Fla. 1993) (explaining that when a case is referred to the magistrate judge pursuant to Local Rule .01(c)(11), the magistrate prepares a report and recommendation to the district court). As such, the Motion is due to be granted and the Court's Order re-issued as a Report and Recommendation.
Accordingly, it is now
ORDERED:
(1) The Petitioner, Vanessa Shaw's Motion to Void the Order of the Court (Doc. #8) is GRANTED. The Court's Order Denying the Motion to Quash is hereby VACATED.
(2) The Government's Motion to Construe the Order as a Report and Recommendation is GRANTED to the extent that the Court will reissue the Order as a Report and Recommendation under separate cover.
DONE AND ORDERED at Fort Myers, Florida, this 6th day of March, 2012.
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SHERI POLSTER CHAPPELL
UNITED STATES MAGISTRATE JUDGE
Copies: All Parties of Record