*1 IV. contend
Finаlly, defendants excluding from erred memorandum EPA internal
evidence
which, their contention they argue, bolsters condi and safer parcel was better Defendants EPA than the admitted.
tion this document characterize
seek magis against interest. admission
as an testimony that the au accepting judge, it as a viewed of the memorandum
thor a fictitious regarding
hypothetical exercise memorandum property, excluded
piece is re grounds. Her decision
on relevance Taylor only of discretion. for abuse
viewable Corp., 920 F.2d Passenger R.R.
v. National for defen
1372, 1375 Counsel a memorandum explain how failed
dants in the dark about completely
by someone could assist in this ease
circumstances EPA memorandum
factfinding. The
properly excluded.
Judgment affirmed. Plaintiff-Appellee, I, INC.,
MARK Defendant-Appellant. GRUBER, Court
United States Circuit.
Seventh
Argued 24, 1994.
Decided Oct.
370 dispositive.
choice is not Unless the latecom- er, too, сonsents, proceeding the whole be- magistrate judge may fore the be set naught. Jaliwala v. United F.2d 945 (7th Cir.1991); 221 see also Atlantic Mutual Airlines, Inc., Insurance v. Northwеst 24 Co. (7th Cir.1994). booby Aware of this trap, promulgated courts have district rules addressing problem. example, the For Local 1.72(B) Rule of the Northern District of Illi- (аrgued), Peter J. Karabas Elizabeth E. “[wjhenever provides nois party Fiesman, Fox, IL, Abramson Chicago, & for judge magis- added to a case the district plaintiff-аppellee. judge assigned trate to whom the case is will Kerr, (argued), Alexander D. Jr. Richard direct the clerk to mail to the additional Wald, Hillsberg, IL, Chicago, W. Tishler & availability magis- notice the defendant-appellant. for judge jurisdiction.... trate to exercise POSNER, Judge, Before Chief and Where the consent is not filed [the within * EASTERBROOK, WELLFORD and fixed], magistrate time judge will Judges. Circuit promptly send the case to the Executive reassignment Committee for to the calendar EASTERBROOK, Judgе. judge the district to whom the was case Magistrate judges may conduct civil previously assigned.” trials judgments, and enter final if all of the suit,
parties 636(c); originally I, Inс., consent. 28 This U.S.C. between Mark Geras Fixtures, Lafayette Inc., Display Corp., 742 and R.G. assigned F.2d was (7th Cir.1984). 1037 procedure Because to a judge after partiеs both entails a trial judicial-indepen without the signed May consent forms in Magis- III, guarantees dence litigants’ Article granted judg- Lefkow summary voluntary must be and explicit. Gea I, holding ment to Mark that R.G.’s retention Carlson, ney 140, 776 F.2d 142 Cir. stickers, of sheets decorative after 1985). acquiescence Passive in a decision consignment sale, revocation of their for by made others does not suffice. Silberstein 181061, conversion. 1991 WL 1991 U.S.Dist. Silberstein, 40, Cir.1988). 859 F.2d 42 (N.D.I1L). Lexis 12546 The case was for set courts, Unlike e.g., New Chinese York damages trial to determine and transferred Programs, Inc., TV Inc. v. U.E. Enterprises, judge Pallmeyer. trial Before (2d Cir.1993), we do not insist began, April R.G. went оut of business. writing, the consent be in but it must be 1992 Mark I complaint filed an amended unequivocal. the record and King v. Ioni adding Gruber and Ernest Robertson International, Inc., 1180, zation as defendants. Gruber and Robertson (7th Cir.1987); Dall, Lovelace v. apiece stock, owned 50% of R.G.’s Gru- and Unless each ber made the decision tо retain the stickers. assents, litigant expressly must case be magistrate judge did not initiate the judge. tried a district inquiry called, for which the local rule and paid any one else attention to
The need for
Rob-
unanimous consent sets
trap
may
ertson
sprung
followed R.G. into
join
bankruptcy
be
parties
disaрpeared
litigants
opted
after the
from
this case. Gruber
did not
judge.
complain
role,
about
magistrate judge’s
For then
newly
party may
arrived
assume that
but neither
expressly
did he
it. A
original
conclusive;
everyone
choice is
trial
in May
was held
and in December
may
problem.
original
overloоk the
But
awarded more
*
Wellford,
Circuit,
Harry
Hon.
W.
sitting by designation.
of the Sixth
supplied
I has not
1993 739
$500,000
against
than
invoking it
grounds
here.
adequate
Lexis U.S.Dist.
litigation,
recog-
Mark hаs
Throughout this
supple-
parties filed
request,
our
At
separate.
It
nized that R.G.
consequences of
addressing the
briefs
mental
*3
simple for Mark I to remind
beеn
have
would
authorization.
formal
of Gruber’s
lack
inquire
the need to
of
his
to make
opportunity
a belated
Offered
consent under
would
whether Grubеr
known,
has declined to
Gruber
wishes
636(c)
to
§
to ask the
—or
must be remanded
therefore
The case
sent.
consent binds Gruber. That
find that R.G.’s
judge unless
by a district
for deсision
finding
done,
so there is
basis
was not
of the
waiver
Gruber’s
act establishes
earlier
consent, see New York
express
the essential
III.
in Article
provided
safeguards
F.2d at 24-25.
Programs, 996
Chinese TV
cannot be attributed
consent
R.G.’s
by Gruber’s
remarks made
Unless
corporation
Gruber;
and the
directly
he
to
argument
themselves the
counsel
firms
by different law
represented
been
the bench
necessary
Inquiries from
consent.
in
liti
interests
managed their
and have
subject
by surрrise.
took
about this
counsel
rule,
corporate
a
As a
independently.
gation
blurted out:
lawyer representing
The
Gruber
corporation,
tо the
imputed
acts are
officer’s
memory on
testing my sieve-like
I am
Only
way ’round.
than the other
rather
yes,
my
is
paper, but
recollection
pieces of
corporate
neglects the
firm so
to con
intention of Gruber
...
it was the
for a
nothing but a
it is
name
that
forms
proceeding_
Mr. Gruber
sent
to
managers
of its
partnership
proprietorship
the case and
involvement with
had some
(and
corporate acts
possible
impute
it
to
is
cоnsent at the
decision
the initial
debts)
is
managers and investors. What
to
corporate level.
necessary
more,
not
is a
but
neglect of forms
assuming
lawyer’s “sieve-like
corpo Even
“piercing
condition
sufficient
correctly
prodding,
to
law,
memory” responded
it
also
is
most states’
veil.” Under
ratе
answers show
believe that these
managers
in we do not
necessary to
that
show
explicit
the essential
perpe
form to
corporate
used the
vestors
Services,
corporation is one
Consenting
on behalf
injustice.
Sea-Land
an
See
yourself
consenting on
of
is
thing;
behalf
Sourсe,
F.2d 519
Pepper
v.
Inc.
pay
Managers
not
cor-
need
(Illinois law).
quite
Cir.1991)
another.
International
R.G.
debts,
personal liabil-
exposure to
porate
incorporated in Connecticut. Mark
Gruber’s
mind. What
freely
ity
concentrates
law
argued
Connecticut
has not
cannot be
might have been
dis-
“intention”
corporate acts
permits the attribution
overrule
cases
unless we
investors;
indeed,
positive
it has not
managers and
—for
record is
on the
holding
express assent
subject.
Our
on this
any state
cited
essential,
thoughts
satisfy
do not
one’s
any unusu
up
turn
investigation
not
did
own
and final decision
Consent
Folio
SFA
law. See
al rules
Connecticut
constitutional
Bannon,
a
waives several
Collections,
217 Conn.
Inc. v.
explicit and on
Industries,
rights.
should be
Waivers
(1991);
A.2d 666
Season-All
recollec-
Spur-of-the-moment
Grosso, Inc.,
569 the record.
213 Conn.
Inc. v. R.J.
satisfy this standard.
do not
by counsel
(1990).
permit
tions
not
record does
The
A.2d
representation
a
not decide whether
We need
to which R.G.
extent
about the
a decision
(as
litigant person-
to the
forms;
opposed
corрorate
counsel
observed
International
636(c),
because
under
ally) could suffice
events,
I does not contend
all
making this
before
time to reflect
the lack of
to commit a
corporate form
used
a
as
ineffectual
renders it
injustice
representation
an
perpetrаte
or otherwise
fraud
guarantees. Com-
of constitutional
waiver
is
“alter
there
To the
suit.
extent
Teague, 953
pare United States
veil-piercing
indеpendent
ego” doctrine
Cir.1992) (en bane),
States
with United
Mea
theories,
NLRB v.
see
Martinez,
Co.,
lacked to enter a final decision. vacated, and the case is by judge appointed
remanded for III
under Article of the Constitution.
WELLFORD, Judge, concurring: very
This circuit has a strict rule with
respect required before judge may enter valid final
judgment party’s as to that interests.
Jaliwala v. United
Cir.1991), this court went so far as to dismiss judgment $160,000,- exceeding
000 because an intervenor had not orally writing
consented case, judge. As in this “both
attorneys surprised by were the disclosure of during questioning
the defect” argu- Id. Appellee
ment. argued, 223. as does I, here, that consent should be
implied, but this court held that “conditional implied consent is inconsistent with what requires
this court party’s to evince a
sent.” Id. at 224.
IWhile feel that defendant Gruber re- result,
ceived a windfall in this I must concur
in the to remand for the reasons by Judge
indicated Easterbrook.
Dwight WHARTON-EL,
Plaintiff-Appellant,
Crispus NIX, Defendant-Appellee.
United States Court of
Eighth Circuit.
Submitted June
Decided