Central Soya Company, Inc., an Indiana Corporation and Central Soya International, Inc., a Panamanian Corporation v. Voktas, Inc., a Greek Corporation
661 F.2d 78
7th Cir.
1981
Check Treatment

*1 COMPANY, INC., an CENTRAL SOYA Soya Corporation

Indiana and Central Inc.,

International, a Panamanian Cor- Petitioners,

poration,

VOKTAS, INC., Corporation, a Greek

Respondent.

No. 80-8040. Appeals,

United Court of States

Seventh Circuit.

Oct. Hunt, Suedhoff, Yoder,

Thomas W. Bor- ror, Shoaff, Lee, Keegan, Eibacher & Baird Simon, Ind., & Wayne, petitioners. Fort for Raymond Vickery, Vickery, E. Johnson & Vienna, Va., Barrett, F. McNagny, William Ind., Wayne, Barrett & McNagny, Fort for respondent. FAIRCHILD,

Before Senior Circuit CUDAHY, Judge, and PELL and Circuit Judges.

PER CURIAM. Inc., Soya Company, Central and Central International, Soya (“defendants” Inc. or Soya”) “Central leave to seek interlocutory order entered Magistrate States Lee certified him appeal pursuant 1292(b). to 28 U.S.C. § Voktas, (“plaintiff” “Voktas”) Inc. has opposition filed an answer in to Central Soya’s petition permission appeal. During petition, its consideration of this ordered, sponte, sua file additional memoranda as to whether a empowered ques- interlocutory appeal tion for under 28 We conclude that a Unit- Magistrate ed States under these circum- stances is authorized to make a Section grant certification and we leave appeal. *2 Magistrate court action. prior state

I 21, 1980,3 July the motion on Lee denied dispute Central underlying between relying on River Water Conserva Colorado arose out of Central Soya and Voktas States, tion District v. U.S. allegedly manufacture and sale of Soya’s (1976), Calvert 47 L.Ed.2d 96 S.Ct. to Voktas. Voktas defective chicken feed v. American Mutual Fire Insurance Co. August brought suit on originally Co., (7th F.2d 1228 Cir. Reinsurance damages seeking in Indiana state courts 1979), refusing to follow Burrows v. breach of computed on several theories for Sebastian, (N.D.Ill.1978). F.Supp. 51 merchantability, im- warranty of implied pursuant to 28 magistrate, U.S.C. fitness, warran- warranty express plied 1292(b),4 his order in the follow concluded § se, ties, liability, negligence per etc. strict ing fashion: court, have been en- In state denying defendants’ motion pretrial discovery The order gaged variety in a litigation proceedings being otherwise stay maneuvers. The state remained for pending petition unappealable, at the time the instant was this court now determines controlling filed in this court. involves a that such order as to which there is sub- question of law 20, 1979, Voktas, plaintiff On November opin- ground for a difference of stantial proceedings, in the state court filed an iden appeal from ion and that an immediate court, ap complaint tical in federal district materially may the order advance diversity jurisdiction, 28 parently based on litigation; determination of the ultimate 1332(a)(2). assert that Defendants U.S.C. § however, for application provided, parties, and factual while same issues stay proceed- shall not appeal hereunder courts,1 plaintiff contexts are before both ings in this court. stay, or other has made no effort to dismiss appeal After the followed. petition wise abate its state court action. This for leave to Magis parties, consent of the United States During deliberations on whether its designated trate Lee was to conduct ordered addi permit appeal, this the court action. 28 proceedings in the federal U.S.C. magistrate’s on a tional memoranda of law 636(c)(1).2 § interlocuto question power 1292(b), noting that under 24,1980, Soya ry appeal Section January Central moved On Act, 28 Magistrates while the Federal stay proceedings in federal court for a of all magis- seq.,5 speaks of the 631 et pending disposition federal action of U.S.C. § in the making judge, in a civil procedural in When a district 1. in the There are some distinctions appealable posture un- not otherwise of the two cases not relevant here. action an order section, opinion that shall be of the der this 636(c)(1) provides pertinent in question 2. 28 controlling involves a such order part, ground is substantial law as to which there any Notwithstanding provision opinion immedi- of law to the and that an for difference of contrary— materially may the order ate from parties, (1) Upon the consent of the a full- the liti- termination of advance the ultimate may writing time United States . . . con- gation, in such in he shall so state any jury thereupon, or non- duct or all Appeals order. The Court jury entry judg- civil matter and order the discretion, permit to be taken in its case, designated specially ment when order, application made to it from such if jurisdiction by the district to exercise such entry days of the order: within after the ten court or he serves. courts Provided, however, application for an stay proceedings appeal hereunder shall not sheet, 3. The district court submitted docket judge the district district court unless permission response Voktas in its judge thereof or a or the Court of appeal, request decision to shows that “a shall so order. stay filed” directed to J. Eschbach [was] May plaintiff indica- 1980. We have no per- provides The Federal 5. Judge ruled on this tion that Eschbach ever ' part, tinent “request". Upon re- case subsection, (1) paragraph ferred 1292(b) provides, 28 U.S.C. judgment directly appealable final equivalent to the district power trate’s as Rather, court’s, appeals. magistrate’s for a calls court Section judge.6 report district were reviewed and recommendation judge first from whose district an appeal final decision could be taken. II Oxford, Taylor v. 575 F.2d 152 (cid:127) Magistrates Act of The Federal *3 1978).10 7 enlarged powers responsibil the and 1979 1979 magistrates by conferring ities of issue we decide is whether these federal The amendments, increasing scope mag- power the the of a on them under certain circum jurisdiction proceedings entry all or- jury stances to conduct istrate’s to include of non-jury entry appealable “any judgment or civil order the as of matter and ders other judgment court,” judgment in the case.8 Once is the district to of extend Section entered, certifications, 1292(b) aggrieved party may appeal an where a district directly judge’s the required. to Court of from the in magistrate’s judgment hampered by Congress’ “in the same decision is fail- manner Our appeal any directly as an from the en- judgment other of a ure address issue when acting the district court.”9 Before 1979 amend the amendment. the However ments, jurisdictional magistrates, acting per- when of sweep even the extensions parties, mitting “any proceedings consent of the could not enter a of or conduct all Magis party may directly aggrieved appeal had occasion to examine the Federal the appropriate appeals amendments, light court States the trates in earlier judgment Allen, magistrate (7th 1979) from the in of the the 1247 Muhich v. 603 F.2d Cir. appeal Jenkins, same manner as an (7th other Hill v. 603 1256 and F.2d Cir. judgment amendments, 94-577, of a district In 1979) (1976 court. this circum- 90 Pub.L. stance, parties the consent of the allows a (1976) Stat. at 2729 codified 28 U.S.C. magistrate designated juris- civil to exercise form, 636(b)), TPO, original and in its Incor § paragraph (1) diction under of the subsection porated McMillen, v. 460 348 F.2d to direct the of a of the dis- 1972). trict with accordance the Federal Rules of Civil Procedure. 636(c)(1), quoted part 8. 28 U.S.C. in relevant § 636(c)(3) added). (emphasis 28 § U.S.C. For supra. at footnote 2 paragraph supra. text of 1, see 2 footnote parties’ 636(c)(3), quoted part 6. This court also ordered the 28 mem- U.S.C. in relevant § supra. 636(c)(4), oranda include a as at discussion to whether a footnote 5 §Cf. discussed stay magistrate denial of a in this in- infra. injunction stance a effect denial of which provides jurisdiction appeals for the court of Taylor applies 10. The rule still to decisions 1292(a)(1). under 28 U.S.C. v. § Ettelson Met- conducting magistrate reached a who is not ropolitan Co., 188, Life insurance 317 U.S. 63 upon parties consent 163, (1942); S.Ct. 87 176 L.Ed. v. New Enelow 636(c). amendments, Congress § In the 1979 Co., 379, York Life Insurance 293 U.S. 55 S.Ct. procedure left intact the earlier non-consen- 310, (1935). parties 79 L.Ed. 440 While the requiring magistrate, con- sual cases after memoranda, addressed this issue in their de- ducting hearing, proposed findings a to file and appeal fendants have not provisions followed the notice and recommendation with the district court permitting appeal requires. such an Fed.R. by judge dea novo determination App.P. 4(a)(1); Fed.R.App.P. (§ 1292(b) cf. 5 report portions of the court on or those petitions Amalgamated appeal) and Meat specified proposed findings recommenda- or Co., Thompson Cutters v. F.2d Farms 642 1065 objects. party judge tions to which (7th Cir., 1981) (nunc 1292(b) pro § tunc order accept, reject, part modify then in whole or 54(b) allowed to stand for Fed.R.Civ.P. certifi- recommendations, findings these and receive cases”). appropriate Accordingly, cation “in evidence, further recommit matter question magistrate’s whether order magistrate. § 28 See U. S. also falls within the Eneiow-Etteison doctrine to Raddatz, 2406, v. 447 U.S. S.Ct. 1292(a)(1) appellate jurisdiction confer § is not Alien, (1980), n.7, supra, L.Ed.2d 424 Muhich v. before us. Jenkins, supra, consent, (party Hill n.7 review, enabling required de novo local rules 96-82, 7. Pub. L. 93 Stat. at codified 636(b) § for trial). reference to civil seq. (1979), amending U.S.C. 631 et Pub. L. -578, (1968). 82 Stat. 1113 This court has matter,” sumption as 636(c)(1), in a ... civil was to route of liti- gants having their case sufficiently broad to include Section heard before a judge district court certification. were entitled. If the dispositive jurisdiction,” was general broadening ments & Admin.News 1469. 1st it Sess., reprinted responsibilities. legislative history restrictive bears to the court of out this conclusion. The judicial interpretations S.Rpt. [1979] Congress magistrates’ powers appeals, U.S.Code included 96th had or “case amend- before Cong., Cong. right H.R.Conf.Rpt. min.News reprinted in judicial system. to appeal directly to the district court. tive appellate Thus, the conferees retained an alterna- will add needed desire, 1488.11 [1979] route. they may further consent flexibility 96th Cong., 1st Sess. U.S.Code It is hoped to the Federal Cong. that this & Ad earlier versions of the act, id. at 4-5, [1979] Thus while Congress did explicitly *4 1472, 1292(b) Cong. & address the issue of Section U.S.Code Admin.News at cit- certifi- TPO, cations, McMillen, general broadening magis- ing Incorporated v. the of powers in 1972), trates’ the 1979 amendments war- F.2d 348 and it concluded further, Congress rants the conclusion that intended should to magistrates certify authorize to interloc- clarif[y] the magis- and role of broaden[ ] utory appeal. orders for direct assisting judges trates district disposition of cases which would ordinari- unique position ap- The of interlocutory be a ly judge. tried district The bill peals under 28 U.S.C. does not enlarge upon considered here would the compel a different conclusion. lan- jurisdiction magistrates actually of to here, guage at issue conduct of and trials cases to direct the judge, the not district does confer a judgments in both civil and crim- special interlocutory status on his ex- order inal trials. cept may subject petition that it the of a be News Their Joint Explanatory Statement Id. at managers In conference, 4-5, at 1472. decisions rendered of the bill [1979] U.S.Code the House and Senate directly Cong. by magistrates. addressed & Admin. states, parable magistrates today. Pub.L. for appeal. U.S.C. § were no when the 85-919, to judicial 1292(b) (1958), was We note in Interlocutory officers with Stat. passing enacted, codified at Appeals powers there com- Act, hold that a certifica We therefore APPELLATE ROUTE IN CIVIL CASES 1292(b) by tion a entered 28 U.S.C. § magistrate conducting proceedings by con magistrates’ decisions in 636(c) pursuant sent bemay to 28 U.S.C. § civil cases be directly will taken subject petition properly the a leave appropriate appeals court of unless the appeal directly appeals. to the court of to parties at the time of reference to magistrate agree case to take Ill appeals to the district court. confer- Upon consideration, grant permis- due we ees carefully weighed the ap- merits of briefing appeal. sion to The normal sched- peal to the being district court rule ule will commence with the date of this option with the appealing to the court decision. appeals if the consented. Al- though pros there are either eons to PELL, Judge, dissenting. Circuit litigants approach, the conferees felt that disposition by respect who to a a consented case With all due to the conclusion magistrate panel pre- majority were of this that a entitled same reached 11. This made no distinction between the two. See also discussion also representative interchangeability the terms “district court” footnote supra. judge”. Congress and “district It is apparent can a an inter-

magistrate basis for locutory appeal pursuant the Matter In V. James 1292(b),I cannot conclude that Feder- PAPPAS, Bankrupt. is, al Act of as broad as it n applicable appeals under § & MERCHANTS NATIONAL BANK specifically expressly That section em- COMPANY TRUST OF INDIAN- powers judge” APOLIS, “a Plaintiff-Appellee, district not district steps take majority court to under it. The opinion giv- refers to the 1979 amendments PAPPAS, Defendant-Appellant. James V. ing dispositive jurisdiction” to the “case here, however, magistrates. We are No. 80-2709. with a dealing dispose that will lays way of the case. Instead it for an Appeals, United States Court of interlocutory which, at an attempt Seventh Circuit. certificate, wording typical “may Argued May 1981. materially advance the ultimate determina- which, litigation,” tion of the but in real Decided Oct.

life, often results in delay a substantial

that determination. While the order the him before stayed,

her not to be it *5 unlikely would seem vigorous litigation

that would continue potentially dispositive proceeding

while a

lodged superior court.

It one thing when the have

agreed magistrate exercising the full

powers of a “district court” that the final by entered the magistrate be re- quite

viewed this It is court. thing

a different say during

course of before the

interlocutory appeals brought can be to this already ap- final overburdened

peals, when general policy sys- of our jurisprudence

tem of is that there should piecemeal litigation be review of but

only review final decisions. Section exception is an finality rule exception

but requires for activation

the concurrence judge” of “a district Appeals.” “Court of Here there has

been no action judge” the “district

the majority opinion amending is in effect

by implication general language from the specific of 1979 the

language of

I would for that reason decline to enter-

tain this on the basis of lack of

jurisdiction.