Henry Hudson v. Nabisco Brands, Inc.

HUDSON, Plaintiff-Appellant, Henry BRANDS, INC.,

NABISCO

Defendant-Appellee.

No. 84-1133. Appeals, Court of States

United Circuit.

Seventh

Argued Nov. 1984. April

Decided 1985. April 1985.

As Amended Brands, Inc., appellee, Nabisco

$831.30 рursuant appellee’s motion to assess previously had costs. district judgment ap- summary entered favor of pellee. by appellant The sole issue raised its is whether the district court abused assessing appellee in favor of discretion deposi- associated with the costs tion. The district court entered its costs referring magis- order after the matter to a trate, master, acting who en- granting appellee’s an order motion. tered appellant Appellee contends that waived right his to have this court address by failing to file merits costs award written to the or- der.

I. THE FACTS Appellee discharged appellant, eigh- an January teen-year employee, on 1981. Appellant’s grievance protest- union filed a dismissal, but, ing appellant’s when procedure failed to reach a favorable reso- lution, voted, April the union in late or griev- early May of not to take the Appellant ance to arbitration. learned day Shortly on this vote it occurred. thereafter, counsel, appellant retained who May did not file this suit until 1982. alleged discharge wrongful The suit part appellee and breach duty representation by of fair the union Labor-Manage- and several of its officers. § 301, 29 ment Relations Act of 1947 August Septem- and 185. On Elston, 111., Jr., Chicago, E. William 17, 1982, appellee deposed appellant, ber plaintiff-appellant. transcript encompasses of which three Tilson, Shaw, Georgeanne Seyfarth, Fair- later, fifty pages. hundred months Several Geraldson, 111., Chicago, weather & for de- appellee summary judg- filed a motion for .fendant-appellee. ment statute-of-limitations based grounds. granted appel- The district court FLAUM, Judge, Before Circuit and lee’s motion on March 1983. WISDOM,* PELL and Senior Circuit Judges. Appellee subsequently filed a motion to against appellant, as costs assess $881.30

PELL, Judge. Senior Circuit charges incurred equal an amount Hudson, obtaining original transcript Appellant, Henry plaintiff appellee be- low, Appellee did not appeals judgment appellant’s deposition. from a of the dis- duplicate cost of tran- granting trict court costs in the amount of seek to have the * Wisdom, Circuit, designation. sitting by Judge is John Minor Senior Circuit the Fifth II. scripts assessed. The court then OF THE CONTENTIONS PARTIES magis- of costs to referred the matter Appellant’s principal appeal claim оn subject Special Master trate “as a deposition an extensive § 636(b)(2) provisions of 28 U.S.C. was not necessary “reasonable and to prop Procedure], Rules Civil [Federal [to] erly prepare” appellant’s Therefore, case. prepare recommendation appellant argues, the costs connected with motion costs.” to assess deposition the should not be assessable. appellant’s The sources of “reasonable and 636(b)(2)provides: Section necessary” requirement for the award of judge may designate magistrate A a to deposition general costs are the costs stat pursuant special a master to the serve as § ute, 28 U.S.C. and cases such as applicable provisions of title and the Services, Stores, Lucky SC A Inc. v. Federal Rules of Civil Procedure for the Cir.1979). Appellant district courts. A United States that deposition claims the was not neces may designate magistrate to serve sary appellee because could the derive special upon civil master complaint from the face of the all the infor parties, regard without consent of the mation that it used to make its motion for 53(b) of provisions the of rule the Federal summary judgment. Appellant does ac of Civil Procedure the United Rules knowledge that the district court’s consid district courts. States summary judgment eration of the motion § 636(b)(2). Rule 53 of the Fed- preceded Supreme the decision Court’s “Masters,” Rules, eral entitled delineates Del Costello v. International Brotherhood powers the and duties оf master Teamsters, which, resolving great di of vergence procedures as well which the as authority, of set judicial six comply proceeding in a before must months as the of appropriate statute limita Among provisions, rule other master. tions for most section 301 suits. U.S. “In an action to be tried states: without (1983). L.Ed.2d 476 S.Ct. jury accept the court shall the master’s Appellee’s merits response on the con- unless of facts erroneous. tends that the district court’s decision to being Within 10 after served with costs of award was not an abuse discretion. filing report any party notice of the of the that, although Appellee also claims refer- may objections upon written serve thereto plaintiff’s deposition ences to were not ex- parties.” 53(e)(2). the other Fed.R.Civ.P. summary judg- tеnsive the motion for hearings After a number and submis- ment, deposition was nonetheless rea- memoranda, magistrate, sion of in a sonably preparation of necessary to the order, granted appellee’s minute motion Appellee motion. that copies parties. shall forthwith mail to all magistrate’s ing the recommendations. A party objecting to the recommended argument, The basis for the waiver disposition of the promptly matter shall adopted varying to extents most courts arrange transcription the of the appeals respect of with to references to record, portions parties or of it as all magistrates 636(b)(1) under section but one may agree upon magistrate or the deems circuit, impression of first in this is found sufficient, judge unless the district other- mainly efficiency goal underlying in the the days being wise directs. Within 10 after Act; is, Magistrate’s to relieve the copy served with a of the recommended litigation on burden the federal district disposition, party may a serve and file that, Appellee argues courts. if the dis- specific, objections pro- written independent trict court must undertake an posed findings and A recommendations. analysis of the entire case even the party may respond party’s to another objections, absence then most of the objections being within 10 after timesaving using magis- benefits from a copy served with a thereof. The district trate would be lost. judge assigned to whom the case is shall Appellant’s anticipate initial brief did not upon make a de novo determination argument, the wаiver and he chose not to record, evidence, or after additional reply argument, file In appel- brief. oral any portion magistrate’s disposi- of the lant contended that the waiver rule was specific objection tion to which written inapplicable to this case. He noted that has been made accordance with this 72(b) rule and section 636 both refer to judge may accept, rule. The district re- objections magistrate’s to a recommenda- ject, modify or the recommended deci- case, proposed findings. tions or In this sion, evidence, receive further or recom- magistrate disposition denominated his magistrate mit the matter to the with motion costs as an order. The instructions. order, except entire for a re- 72(b). Fed.R.Civ.P. The first sentenсe of turning the judge, case to the district court 72(b), portion quot- rule not included Brands, stated: “Defendant Nabisco Inc.’s however, by appellee, mag- ed refers to “a granted motion to assess costs is in the assigned par- istrate without consent of the amount of The district court $831.30.” pretrial dispositive ties to hear a matter then entered an adopting magis- order a claim or from defense.” It is obvious order. magistrate

trate’s Because the de- sentence, this as the title of the as well order, disposition nominated his ap- as an rule, (b) only applies pre- that section to pellant argument makes the semantic trial matters. provisions relating magistrate’s proposed recommendations or inapplicable. already disposed are court hаd of the substan- rule), while reference the costs other courts condition

tive claim before normally finding as is true that the magistrate, waiver issue costs specifically arises. admonished the whenever appellee’s failure to file would because constitute a matter,” 72(b) waiver, Morrash, does “pretrial not ‍‌​​‌​‌‌​‌‌‌​​​​​‌​‌​‌‌‌‌‌​‌‌​​​‌‌​​‌​‌​‌‌​‌‌​‌​‌‍a Siers v. 700 F.2d was (3d (at apply respect this case. to pro least with se litigants); Wainwright, Nettles v. by appellee cited All of the cases . (5th Cir.1982) (en banc), re- issue respect waiver construe mand, (5th Cir.1982); 677 F.2d 410 United states, 636(b)(1), part: Walters, States provision of Notwithstanding any law to Cir.1981). courts hold that Some waiver contrary— fact; thus, applies only issues of a party designate magis- judge may [A] magistrate’s cannot waive a incorrect appli- any pre- trate and determine to hear if cation law even fails to pending trial matter court____ before . Heckler, object. F.2d Brue v. may A (5th Cir.1983)(alternative holding); Britt v. any pretrial matter under reconsider Valley District, Simi School Unified (A) subparagraph where it has (9th Cir.1983). See also or- been shown that Childs, Moawad v. contrary or der is erroneous Cir.1982)(pro litigant se “cannot be held to law. have waived raised in his plead- an issue ings magistrate’s that is not covered in the days being after Within ten served recommendations”). findings or Further- copy, may serve file any party more, Eighth rejected has Circuit proposed written objection to such find- rule, extent, waiver least to some at ings provided by recommendations as Lockhart, 729, v. F.2d Messimer 702 730- rules of court. A of the court shall (8th Cir.1983), holds that a party 31 which make a de novo -determination of those law, cannot of but waive a leaves portions specified or pro- of the open questions whether no-waiver posed findings or to recommendations apply purely rule would to an issue of objection which is made. whether, in such historical fact and Appellee correctly that a majority granting istrate’s order the motion to as- in present general costs case is the 54(d) sess costs. Rule of the Federal Rules Code, in statute the United States 28 provides, pertinent of Civil Procedure in § provides, 1920. That statute in part, that “costs shall be allowed as of part: judge any “A or clerk of court course to the prevailing unless the may United States tax as costs ... [f]ees district court otherwise directs.” There is reporter of the court any part for all or that, dispute no when a district court stenographic transcript necessarily ob grants party’s summary judg- for tained for use in the case.” 28 U.S.C. ment, litigant “prevailing party” is a § 1920(2). claim, Appellant does not nor purposes See, IAP, of the rule. e.g., litigant any successfully argued, has America, Inc. v. Mercedes-Benz North deposition transcripts are not included in F.Supp. 262, (D.N.J.1983). 571 269 “stenographic transcript.” the term Cf. Although a district court’s award Kolesar, 835, United States v. 313 F.2d subject of costs is a entrusted to the exer (5th Cir.1963); 837-38 Safeway Esler v. discretion, cise of its that discretion is not Stores, Inc., 479, (D.Mo. 77 F.R.D. 482 Services, without limits. A SC Inc. v. 1978). reporter” the term “court Stores, Lucky 599 F.2d at 180. As the 1920(2) applies stenographers section Supreme stated, Court has other than and in addition to official We do not giving reporters assigned particular read that Rule as dis- court judges trict discretion to tax costs to courtroom. See v. Carrier Manu Wahl Co., 209, (7th winning litigant reimburse a every facturing 511 F.2d 217 Cir. expense 1975); Kolesar, he has seen fit to incur in the 313 F.2d United States v.

1243 (1984). 2731, L.Ed.2d 628 Even There- S.Ct. 81 28 U.S.C. 753. 838. See also at depositions may discovery related to fore, depositions the costs the costs related assessed, Brau, 1920(2). may Bailey Ramos v. v. Meister section fall within Cir.1983). 982, (7th Cir.1976), Lamm, (10th Inc., pro- 996 535 F.2d 713 F.2d 546 deposition merely is not vided that claim is that The crux attorney, convenience of the Newman “necessarily ob deposition was Co., Staley Manufacturing 648 v. A.E. thus, and, was use in the case” tained for Cir.1981) 330, (5th (dicta), pure- 337 or F.2d cost. The not a recoverable nature, investigative Koppinger v. ly necessarily ob was deposition whether a Associates, 901, 513 F.2d & Cullen-Schiltz been the sub use in a case has tained for (8th Cir.1975). Finally, the fact that a 911 Despite controversy. ject of considerable disposes summary of a case at the contrary, v. authority Johnson some stage impediment is no to an judgment 661, Railroad, 65 F.R.D. Baltimore & 0. costs, provided they award of were (N.D.Ind.1974), 528 F.2d 1313 aff'd, 674 necessary for reasonably use otherwise Cir.1976) (costs issue not raised Georgia the case. v. Residential Jeffries view, generally accepted appeal), the 62, Authority, 90 F.R.D. Finance circuit, is that adopted by this the one (N.D.Ga.1981); Brown v. Inter-Ocean In- at trial is not a deposition of a introduction 951, (N.D.Ga. Co., F.Supp. 955 438 surance finding that it was neces prerequisite for 1977); Inc., 36 F.R.D. Fleischer v. A.A.P. deposition. Illi sary to take the State of (S.D.N.Y.1964). also Kaimowitz v. 31 Co., 657 Sangamo nois v. Construction 1345, (E.D.Mich. Howard, F.Supp. Services, (7th Cir.1981); 855, F.2d SCA 1982) (directed verdict). 180; Stоres, 599 F.2d at Lucky v. Inc. Co., 511 Manufacturing v. Carrier Wahl difficulty in the case One Hacker, 217; v. F.2d at Mashak ‍‌​​‌​‌‌​‌‌‌​​​​​‌​‌​‌‌‌‌‌​‌‌​​​‌‌​​‌​‌​‌‌​‌‌​‌​‌‍nor the dis is that neither curiam) (affirm (per in his order find trict included taking “incident to the ing award of costs The district courts would ings of fact. though subsequent to deposition even orderly appellate they review if facilitate for lack taking the dismissed case [was] in their orders included of fact In re Air Crash jurisdiction”). Accord Nonetheless, undoubtedly granting costs. Kennedy Internation at John F. Disaster light presumption established Airport on June al 54(d), held that costs the courts have (2d Cir.1982) (section “requires original transcript of related to the awards case,’ than use ‘at use ‘in the rather only underlying no factual deposition need ”); States Steel the trial’ Allen v. United Kohle mbH findings. Studiengesellschaft (5th Cir.1982). Co., Co., Eastman Kodak Co., Cir.1983); 493 (5th Fey & necessity v. Walston The determination Cir.1974); 1036, (7th Indepen F.2d 1056 light in of the facts known must made be Workers, Inc. v. United States re dent Iron deposition, without at the time of the (9th Cir.1963), Co., 656, 678 322 F.2d developments that later Steel gard intervening 267, 922, 11 denied, 84 S.Ct. 375 U.S. for further cert. deposition unneeded render the Argento, Lenard v. L.Ed.2d 165. See also Adolph Copper Liquor, Inc. v. Coors use. Cir.1983) 874, (7th (affirming Cir.1982)(dic (5th 900 Co., 699 1099 684 despite district issue, deposition costs award ta), separate reheard en banc statutory curiam); to indicate the ba (5th failure (per court’s F.2d 522 701 — -, denied, therefor), U.S. Inc., Airlines, 102 sis cert. American Raio v. only L.Ed.2d 84. 78 (E.D.Pa.1984); Independ 104 S.Ct. F.R.D. denies costs district court 543 when a Copperweld Corp., Corp. Tube v. ence “neces party is an articulation (N.D.Ill.1982), prevailing 706, 717, aff'd, F.Supp. appel perform our for us to Cir.1982) (costs sary in order issue not 691 F.2d 310 — v. Unit- function.” Pеarlstine U.S.-, late review rev’d, appeal), raised on (3d Cir.1981) States, suit would then lant’s have been little more ed curiam). Furthermore, suit, in the (per than strike and thus he should bear case, dispute essentially reasonably there is no about necessary whatever costs that summary judgment appellee obtaining the facts relative to the incurred in dismissal of few, any, motion. the case. We can conceive of if situations in which a defendant’s costs deposition, At the time of the taking plaintiff’s deposition from in a Supreme yet Court had not decided Del private litigants suit between individual Costello, adopted a six-month stat reasonably necessary would not be for use ute of in most section 301 suits. limitations in the case. If a case is so meritless that it decision, Prior to there some was local claimant, unnecessary depose then authority period long as that a limitations strong support requiring there is years apply as ten to such cases. would claimant bear the financial burden of Products, King F.Supp. v. Corn having brought the case. (N.D.Ill.1982). Consequently, it was not clear what statute of limitations would Finally, appellant argues that it is Therefore, apply. appellee prudently acted inequitable private and would chill actions by taking appellant’s deposition, and the for the enforcement of to im federal laws deposition reasonably necessary in was pose against in individuals and favor light appel of the circumstances known large corporations. Although one dis deposition. lee at the time of the con We trict cоurt has refused to allow costs based clude that the district court did not abuse upon argument, a similar Schaulis v. its discretion when it entered the order CTB/McGraw-Hill, Inc., F.Supp. granting costs. (N.D.Cal.1980), general rule that dis Furthermore, difficulty we would have parate wherewithal alone defeat a would accepting appellant’s argument if it even upset claim for costs would the dictates of had been obvious that a six-month statute 54(d) that costs allowed “unless the applied. Nothing appel- limitations in type directs.” This is the otherwise complaint lant’s indicated he when received discretionary ruling appellate to which press notice that the union his would give complete” “virtually courts should in claim arbitration. Such notice is rele- Piper Corp. deference. See Aircrаft vant to the when limitations Inc., Wag-Aero, Cir. period begins Appellee to run. could de- 1984) (Posner, J., concurring). Further concerning rive only information notice more, we note that the court Schaulis through discovery. By taking deposi- costs, part, based its refusal to award tion, appellee also derived information to vigorously the fact that the case was respond any equitable tolling argument litigated. Appellant cannot claim the same appellant might raised. have There- thing respect light to this case fore, deposition necessarily was ob- the fact timely that the failure to file the tained for use and the district precluded any case has court from ever court did not abuse its discretion award- addressing the merits of under ing appellee. the аttendant costs to lying Consequently, claim. we refuse to If, contends, appellee as could upset the discretionary district court’s deci or, summary judgment, have moved for reject appellant’s equitable argu sion to accurately, dismiss, more moved to based ment. solely upon complaint and without even deposing appellant, appellant then also CONCLUSION should have determined that his suit was judgment pursu- The of the district court

time-barred and should never filed have granting appellee’s to its order ant case. We have demonstrated that the time to assess costs is bar was not as obvious as now were, however, claims. if appel- Even it AFFIRMED.

FLAUM, Judge, concurring. magistrate, separate subparagraphs Circuit setting procedure forth the for referencе of affirmance fully in the court’s I concur nondispositive dispositive versus matters. against ap- assessment of (A) Subparagraph nondispositive deals with decision not to in the threshold pellant, and matters, empowering judge “designate magis- appellant’s objections find magistrate to hear and determine Although I to be waived. trate’s “order” court,” pretrial pending matter before the reach the merits of therefore would also added) (emphasis excepting specifi- certain accept I do not issue in this the costs cally dispositive enumerated motions cover- 636(b)(2) majority’s premise that section (B). (A) Subparagraph by subparagraph ed Act, Magistrates 28 U.S.C. of Federal judge further of states “[a] §§ (1982) Act”), (“Magistrates bars may any pretrial matter reconsider ... finding рarty has us from ever magis- where it has shown that the been objections its waived trate’s order is erroneous or con- acting by master trary to law.” failing bring these before Rather, I conclude that the Despite ambiguity district court. in some the statute as our au- Magistrates Code,1 Act does not restrict printed leg- in the United States rule, adopt appellate waiver thority to an history “subpara- islative clarifies that decline to formulate such a (A) and would graph specify procedure does not motion for costs in this case because the obtaining in by be followed recon- properly handled as a referral to a was not magistrate’s by sideration of a order 636(b)(2). Be- special master under section judge,” and that “a fixed time [is not] analysis majority’s I that the cause believe specified with which to obtain review of a unduly our restricts of the waiver matter,’ magistrate’s ‘any pretrial in order authority important judicial in an area of timely request judge since is a to a what of administration, separately I on this write depend upon the court will the nature of question. pretrial H.R.Rep. matter.” No. Cong., reprinted 94th 2d Sess. in 1976 majority’s conclusion that subsection Cong. U.S.Code & Ad.News (b)(2) precludes appellate an of section 636 (“House S.Rep. Report”). See also No. (b)(1) waiver, finding of while subsection (“Sen- (1976) Cong., 94th 2d Sess. 8-9 it, proceeds my opinion from a allows Report”). gap subparagraph ate This 636(b) misreading general. of section (A), however, by has since been filled complexity Because of the substantial and 72(a) Proce- of the Federаl Rules Civil section, ambiguity begin of that I with a dure, which states that a district history discussion of its and structure. to a shall consider 636(b) today largely as it stands is Section nondispositive proposed disposition of a product of 1976 amendments to the pretrial “provided they matter are served expand- Magistrates significantly Act that entry and filed within 10 after scope judges’ authority of district ed the 72(a); advisory the order.” Fed.R.Civ.P. magistrates. refer various matters to 636(b)(1) (a). provides note In con- particular, section committee on subdivision trast, dispositive the reference of matters “[njotwithstanding any law to the con- (B) authority subparagraph trary,” judges may nondisposi- under the refer both (such specific procedures out- pretrial discovery as re- controlled more tive matters statute, (C) subрaragraph quests) dispositive pretrial and matters lined motions) copy of (such require to a the court to mail a summary judgment as reason, margin. portion printed flush with the This lack 1. For some the textual of sub- glance (C) gives impression paragraph ten-day provi- at first indentation that includes (C) applies portion subparagraph objecting magistrate’s proposed that this sion for (b)(1) subpara- rather than rest all of subsection and recommendations —unlike the (B) (quoting (C) (A) graph only. subparagraph subparagraphs See ante at (b)(1)). (B) text of subsection not indented but is of subsection —is parties, procedures 53 with more under sec- magistrate’s report to the liberal 636(b)(1)). tion objec- require parties to file their in turn report the district court tions to the Finally, the 1976 amendments added sub- days. ten U.S.C. within See (b)(3), simply which states section “[a] § 636(b)(1)(B) (C); Report at & House magistrate may assigned ‍‌​​‌​‌‌​‌‌‌​​​​​‌​‌​‌‌‌‌‌​‌‌​​​‌‌​​‌​‌​‌‌​‌‌​‌​‌‍be such additional Cong. Ad.& reprinted in 1976 U.S.Code duties are not inconsistent with the Con- as 72(b) Fed.R.Civ.P. News at 6171.2 See also stitution and laws of the United States.” procedures applica- broadly-phrased provision perhaps (setting additional This forth § Congress’s in- 636(b)(1)(B)). dramatically most illustrates under ble to references give judges tent to the district substantial (b)(1), which outlines Unlike subsection experiment to discretion with the use degrees types pre- of detail the varying magistrates for initial evaluation of a vast proce- referred and the trial motions to be variety Report of matters. House at See them, referring dures to be followed after 12, reprinted Cong. & U.S.Code (b)(2) generally merely states subsection 6172; Report Ad.News at at 10-11. Senate may designate magistrate that “[a] Moreover, gap the subsection fills the left special pursuant as a master to the to serve (b)(1), applies subsection exclu- applicable provisions of this title and the sively “pretrial matters.” Id. Since Federal Rules of Civil Procedure.” See (b)(3) provides guidance no subsection (text (b) ante at 1239 of subsection concerning procedures gov- whatsoever (2)). Therefore, operation of subsec- reference, erning appar- such a this task is (b)(2) depends governed by tion al- ently left to district courts under subsec- entirely upon most Rule 53 of the Federal § (b)(4). 636(b)(4) tion See Rules of Civil Procedure. House Re- (“Each district court shall establish rules port reprinted at in 1976 U.S.Code pursuant magistrates to which shall 6172; Cong. Report Senate & Ad.News at duties.”). discharge their 10; advisory at Fed.R.Civ.P. 53 committee 636(b) This discussion of section and the Amendment, (f). note on 1983 subdivision pertinent implement it federal rules that granted judges The broad discretion majority’s reveals several errors in the pretrial refer matters under section First, analysis question. of the waiver con- 636(b)(1) does not exist for reference of trary majority’s assumption special matters to a master under various (b)(2) (b)(1) from subsection differs because which states that “save in matters ten-day provision the former has no computation of account and of difficult filing objections special master’s re- damages, only a reference shall made port, actually incorporates subsection showing exceptional that some con- prоvision by such a reference' to Rule 53(b).3 requires it.” dition Fed.R.Civ.P. 53(e)(2). The fact that the source requires prepare Rule 53 also a master provision procedure is a federal rule of civil report and file a on the matters referred to rather than the statute itself should not him, importantly present and—most analysis: alter the waiver either source purposes party may serve on provides parties warning of their with fair —states the other written dis- duty their filing. within ten of its Fed.R. court, history of trict and the structure and 53(e)(1) (2); advisory Magistrates Civ.P. & committee amendments to the (f) Amendment, congressional note on 1983 subdivision choice Act reflect a conscious pro- (comparing reporting requirements development particular of Rule to leave the apply Report Althоugh provisions of Rule 53 2. The House notes that this 3. the other 636(b)(2), objection designations substantially procedure section "is and the to all under requirement specified "exceptional need not time limit in Rule 53 where there has condition" judge designates Report been a reference to a master.” House at be met if the parties. Cong. reprinted the consent of the U.S.Code & Ad.News master with (1982); 53(b). 636(b)(2) Report Fed.R.Civ.P. at 6171. Accord Senate at 10. 28 U.S.C. 1247 — denied, U.S.-, Hence, accept- 104 S.Ct. even cert. the courts. cedures to (1984); a ten- 81 L.Ed.2d 352 Nettles v. assumption that Wain ing majority’s the (5th Cir.1982)(en to an necessary wright, condition 677 F.2d is a day provision waiver, (“Absent banc) 53 should the finding any Rule from statute is appellate appeal references under for statement as to the effect on satisfy that condition (b)(2). party’s object failure to subsection findings findings where those are subse Second, demonstrates that the discussion by court.”). quently adopted the district assuming that the ten- majority errs Walters, v. United States Cf. (C) subparagraph day rule embodied (adopting waiver rule pretrial matters statutorily applies to all Act, Magistrates policy on but based (b)(1). legis- under subsection referred stating permissive language that “[t]he Congress did not history shows lative § suggests party’s objecting for to a prescribe procedure objections failure to file is not a waiver of nondispo- on magistrate’s recommendations review”). appellate I therefore believe that subparagraph under sitive matters referred power obliga have the even the we —and (b)(1), (A) and instead that— of subsection appellate an court to decide in an tion—as void was as with subsection —this appropriate adopt case whether to a waiver procedure rule of civil by filled a federal by general purposes rule reference (Rule 72(a)). to the extent that its Magistrates Act and to the interests applica- of an analysis turns on absence efficiency judicial of fairness and admin ten-day in the statute itself as a ble istration. Congress inferring that did not basis finding appellate an intend to allow I Because do not deem this case as an waiver, deny majority would also our formulating a appropriate one for such authority party find that a waived its rule, however, join I in the decision not to magistrate’s disposition of objections to a objectiоns find the waived. routine, pretrial matters un- nondispositive fact, foregoing as the discussion of section 636(b)(1)(A). reveals, der section 636(b)(2) proper and Rule 53 procedures followed in re- were not below fundamentally disagree Finally, I ferring appellee’s motion for assessment of Congress’s in majority’s premise that serving special to a objecting specific clusion of a Teledyne master. Liras v. Movible Cf. magistrate’s findings or recommenda Inc., Cir. Offshore, not under section 636—and tions 1979)(appellant’s object magis- failure to goals Magistrates efficiency “broad 53(e)(2) not report trate’s under Rule does power as an the sole source of our Act”—is raising district court’s inde- him from bar recognize appellate court to as waived pendent duty to determine that master’s presented never such were erroneous). At the Although ten-day court. to the district outset, this motion involved no difficult any objections must provision implies that computations, hardly and satisfied the “ex- court within that filed with the district requirement for refer- ceptional condition” court, or else be waived before period 53(b). special master under ence perti provision itself nor the neither the Lucas, Moore’s Fed- 5A J. Moore & J. sug history specifically legislative nent (2d 1984)(issues Practice ed. eral 1153.05[2] gests to follow it consti whether failure inappropriate for refer- generally of costs appeal. tutes waiver master); special Prudence-Bonds ral to a Schronce, See, e.g., United States Cory., Realization Cory. v. Prudence (4th Cir.) (“Neither legisla (2d Cir.1949)(same). if Evеn 636(b)(1)itself history of the Act nor tive magistrate ‍‌​​‌​‌‌​‌‌‌​​​​​‌​‌​‌‌‌‌‌​‌‌​​​‌‌​​‌​‌​‌‌​‌‌​‌​‌‍in this case reference to the potential con specifically addresses ... consent of both made with the if he to was sequences will suffer fails silent) the “ex- (on the record is objections authorized file the written requirement was thus subsection.”), ceptional condition” paragraph last of that court or to reformulate for submission otherwise procedures inapplicable, reference of procedures various master’s review of magistrate, I call to the by mag- matters to a would in this case not satisfied were costs, seeming assessing court’s attention the lack summary “order” istrate’s any provision implementing summary adoption section court’s the district and 636(b)(3), 53(e); potential and note the for future 9 C. Fed.R.Civ.P. of that order. See (b)(3) Miller, development Practice and in this area. Subsection Federal Wright A.& §§ (1971 Supp.1984) provides opportunity for district & Procedure appropriate guidance to the judges, with (discussing procedures). procedures parties concerning specific sug- criticisms are meant These follow, they begin the kind of should motions for gest improper it to refer is magistrates innovation the use of magistrate motions to a costs or similar Congress intended. spe- that the but rather under section event, generally not the once a district court elects provision is cial master future, procedure of doing so. In the to invoke the master method for best 636(b)(2), practice would to refer these it must insure that the better section matters, relatively requirements routine similar of Rule 53 are satis- kinds of detailed 636(b)(1)(A) to thоse embraced section In a the record does not fied. cáse where they pretrial for the fact that are not requirements but that these were satis- show matters, authority fied, under the of subsection penalize appellant by I would not (b)(3). Indeed, Congress enacted subsec- finding his express purpose for the of en- tion disposition of the motion to be waived. couraging experiment district courts to referring magistrates. such matters Report reprinted House at in 1976 (sub- Cong. at 6172

U.S.Code & Ad.News “magistrate to permit

section would review the exoneration judgments,

default order cases, in criminal or forfeiture of bonds BROS., INC., In re GOLDBLATT jury where accept and returns of verdicts unavailable,” judge the trial would TIRE & The FIRESTONE RUBBER COMPANY, Plaintiff-Appellee, “enable the court to refer some of more magistrate”). administrative functions to a Unfortunately, the standard form that BROS., INC., GOLDBLATT used to refer thе motion

the district Defendant-Appellant. magistrate present in the for costs to a No. 84-1356. appears to make no for ref- case Appeals, States Court of United 636(b)(3).4 per- erence under section It is Seventh Circuit. haps for this reason that the district providing on the checked box form Argued 1984. Dee. “[sjerve reference to a April 1985. Decided subject provisions of Special Master § 636(b)(2) 28 U.S.C. and Rule F.R.C. province

P.” While it is not the

court to the forms used rewrite form, nor do it was revised like that involved in which indicates that 4. July apparently implements perti- they provide under sec- otherwise for references however, 636(b)(3). Strangely, nent Rules of the United States District Court 1.70 tion Illinois, particu- for the Northern District of (1983), the reference of C.l. which deals with ("Duties Magis- lar Rules 1.70 trates") and Powers matters,” provides pretrial "dispositive (“Referrals Reassignments and 2.41 magistrate may to set aside de- review motions Magistrates”). Neither the Rules nor the judgments, to set aside invol- and motions fault specifies any category literally form that would untary judgments of dismissal. post-trial encompass the reference notes assess costs to the extent of $831.30 deposition revealed information that estab- returned the cause to district court. complaint, lished the untimeliness Appellant objections magis- filed no to the despite complaint the fact that the stated a later, trate’s order. Three weeks the dis- particular, cause action on its face. trict following court entered the minute although the not refer to complaint did Magistrate’s order: “Pursuant to the order аppellant time when became aware dated December as- pursue his case [are] union had decided not to sessed in arbitration, favor defendant Nabisco deposition disclosed this in- Brands, against plaintiff, Inc. and Hen- formation, necessary which was ry in the amount of Hudson Nei- judgment $831.30.” summary success motion. ther the nor the court Additionally, deposi- district that the appellee notes explained why appellant the award was helped tion $831.30 assure counsel appellee’s sought while grounds have no base $881.30. would Finally, appel- Appellant appeals judgment equitable tolling. from the en- a claim deposition pursuant tered to the district order. lee contends that a court’s always prepara- essential to the III. plaintiff is WAIVER OF OBJECTIONS of a defеnse. tion Appellee argument upon bases its waiver merits, however, reaching the rule 72 of the Federal Rules of Proce- Prior to Civil § appellant waived his dure and 28 appellee asserts U.S.C. 636. The.title rule by failing right “Magistrates, to contest the costs award 72 is Pretrial Matters.” The objections magistrate’s 1, 1983, order adopted August to file rule was effective Appellee alleges that granting costs. both while the issue of costs was still before the 72(b) of the Federal Rules of Civil magistrate. only portion The of rule 72 set required and 28 U.S.C. Procedure appellee out in its brief states: to file written The magistrate enter into the shall proposal days. within ten disposition record a recommendation for argument goes, the failure to file matter, including proposed find- right appeal waives the ings appropriate. of fact when clerk subsequent judgment adopt-

Notes

notes magistrate must inform the appeals of the courts of have determined failure will that to file result that to file written failure within Corp. v. waiver. Accord Lorin Goto & party’s right ten to to object waives a Co., 1202, (8th Cir.1983). 700 1207 F.2d Cf. magistrate’s findings proposed and rec Leasing Burroughs Corp., Iten v. 684 Co. however, rulings, ommendations. These 573, (parties’ stipu- 575 F-2d approaches. variety have taken a of Some lated waiver of district court of review courts have an absolute rule of established findings pre- factual does not respect any arising to issue waiver with appeals’ clude court of review those magistrate’s report from the ob erroneous clearly under a stan- made, jection nоt United States ‍‌​​‌​‌‌​‌‌‌​​​​​‌​‌​‌‌‌‌‌​‌‌​​​‌‌​​‌​‌​‌‌​‌‌​‌​‌‍v. dard). yet This has not addressed Schronce, 91, Cir.1984), F.2d 94 727 question. the waiver — U.S.-, 2395, denied, 104 cert. S.Ct. 352; Mart, decide the 81 L.Ed.2d Park Motor Inc. v. Nor need we issue 603, noted, Co., (1st previously Ford 605 case. As all Motor Cir.1980); Hull, upon eases Waterbury Inc. v. cited above were based B. John Products, Inc., 24, 636(b)(1). 588 section The district court in this Petroleum F.2d (2d denied, Cir.1978), its reference explicitly 29-30 440 case based cert. U.S. (1979); magistrate costs issue section 99 59 L.Ed.2d 773 S.Ct. (b)(1) Davis, 636(b)(2). While subsection contains Camby see also v. (4th Cir.1983) (dicta ten-day filing objections, discussing rule for subsec- n. waiver provision. tion contains no similar In- proposed by conduct of his case. Items provision clusion of the in the former winning parties sub- always as costs should Congressional section indicates given scrutiny____ careful There- problem. fore, awareness the waiver Conse- given judges discretion quently, judicially engraft we will not to tax sparingly costs should be exer- (b)(2), provision similar onto es- subsection expenses spe- cised with not reference pecially light of the absence of indi- cifically by allowed statute. history legislative cation in the that Con- Co., Farmer v. Arabian American Oil gress intended a result. The such broad 227, 235, 411, 416, U.S. 85 S.Ct. 13 L.Ed.2d Magistrate’s efficiency goals of the Act are (1964) (emphasis added). respect With enough to manufacture a that “specifically to those costs allowed stat- is not in the statute. we conclude ute,” hand, on the other we have held that ten-day apply rule does not presumption pre- rule 54 creates a cases referred to a under sec- vailing party that, will receive costs and 636(b)(2),and, therefore, tion we hоld that presumption, losing party rebut right appeal has not waived his something must demonstrate more than his from the merits of the district court’s order good litigation. faith conduct in the Popeil granting appellee’s motion to assess costs. Brothers, Electric, Inc., Inc. v. Schick express opinion We no about either the (7th Cir.1975). F.2d See Gard- efficacy of the various waiver rules ner v. Railway Systems, Southern adopted by appeals the other courts of or (7th Cir.1982). general, argument mag- semantic presumption overcome the in favor of a istrate’s “order” is not a recommendation costs, grant losing party must dem- purposes of district court under review fault, onstrate “there has been some Magistrate’s Act. misconduct, default, or worthy action penalty prevailing on the THE IV. MERITS Colbert, side.” Delta Air Lines Appellant contends that the district court (7th Cir.1982). by adopting abused its discretion mag- statutory basis for the award

Case Details

Case Name: Henry Hudson v. Nabisco Brands, Inc.

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Apr 9, 1985

Citation: 758 F.2d 1237

Docket Number: 84-1133

Court Abbreviation: 7th Cir.