*1 negotiations spects, involved in the settlement be- of the district court is tween the after the district court AFFIRMED.22 We REMAND case to handed down decision. the district court for purpose the sole entering an amended order consistent with disagree We with both of NCR’s reasons. opinion. First, only mention of on Ewart’s name original petition in state or on part, AFFIRMED in REVERSED in suit, papers filed in the is that part, and REMANDED. name, Ewart, the law firm’s Black & requires mentioned.21 Rule 11 pleading,
motion, paper signed at least attorney “in his name.” individual (emphasis added). Thus,
Fed.R.Civ.P. 11 attorney signs document,
is the who
not the firm attorney to which that be-
longs, that certifies that the document con-
forms of the rule and accepts responsibility if it does not. ARCHIE, al., Paul Plaintiffs, Edward et signature he, Black’s indicates that everyone Ewart, responsible at Black & Archie, Paul Edward pleadings signed. for the Plaintiff-Appellant, Second, the fact that Ewart was involved negotiations the settlement does not nec- essarily mean that he was effectively in- CHRISTIAN, al., David A. et litigation volved the district court. Defendants-Apрellees. It is Ewart’s conduct before the district imposed sanctions, not his conduct No. 84-2175. afterward, that is determining relevant in United Appeals, States Court of whether he public violated rule 11. The Fifth Circuit. policy negotiated in favor of settlements jeopardized would be par- Feb. ties during negotiation proceed- settlement ings could form the basis for sanc- (evidence
tions. Fed.R.Evid. 408 of of- Cf. compromise fers to is not admissible
prove liability in оrder to encourage settle- negotiations). Consequently, Ewart’s
involvement in negotiations the settlement
is not relevant in determining whether or
not he violated rule 11. Since Ewart did sign any documents involved the district court in imposing
erred rule 11 on sanctions him.
VI. imposed
The rule 11 upon sanctions REVERSED;
Ewart are in all other re- example, original petition For in state 22. We do not disturb the amount of the sanc- signed— imposed by court was tions the district court about which However, argument appeal. there submitted, Respectfully jointly Black and the Robinsons will be Black & Ewart severally remand, liable for thе sanctions. On By David B. Black /s/ amended to that effect should be en- tered the district court. *2 Archie, pro E.
Paul se. Wells, Gen., Atty. M. Lawrence Jim Asst. Gen., Austin, Mattox, Atty. Tex., for de- fendants-appellees. CLARK, GEE,
Before Chief REAVLEY, POLITZ, RUBIN, RANDALL, WILLIAMS, JOHNSON, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, HILL, JONES, Circuit Judges.
GEE, Judge: Circuit appeal concerns the of a Unit- Magistrate ed to conduct a Act, Magistrate’s to the 1979 U.S.C. Sections 631-639. We conclude that so may voluntary with the sent of all who compelled accept conducted. because, Even so the circumstances presented, appears it refusal of parties to one of the consent resulted in procedural merely a error and not we conclude absence contrary panel’s decision to the erroneous; and we remand the consideration the merits. History Procedural Appellant brought Archie an action officials, against prison claiming Texas rights while violated his prison. he was confined state Pursuant to a reference of such matters to blanket Magistrates of the Southern Texas, District Archie’s case was tried magistrate.1 jury before objection magistrate’s pre- voiced no 636(b)(1) 636(b)(3). §§ permits entered The former section 1. General Orders Nos. 80-5 82-4 sought designated magistrate the power er’s civil to that that District em- Chief to determine magistrates juries prison- empanel matters, hearings, pretrial to conduct certain trials, cases, rights reсommendations; to conduct and to submit the latter au- findings judge the to the district submit assignment thorizes addi- magistrate’srecommendations. and the tional duties not inconsistent the Constitu- said to flow from do so was Their to 1979 and laws. tion Act, Magistrate’s portions 28 U.S.C. siding, good day; nor has he done so to this That the process arrived at defendants, irregular objected so the who erroneous not, however, did deprive the district court They judge. demanded an Article III ovеr the action. As we have however, either, doing ceased noted, all parties properly had been drawn jury rejected all of claims but two Archie’s *3 court; adjudi- before the and the claims damages him and awarded on those. proper subjects cated jurisdic- were of its report filed a to the dis jurisdiction tion.2 It of the essence of recommending objection trict that court the that its absence cannot waived: a cоm- be presiding to his on the be overruled panion section of the Act to that under general of grounds the reference attempted here, which the reference was findings the of and that the however, permits the to waive not adopted. objections Archie filed on the only conducting by the of the trial an Arti- the report, magis merits of but none to the cle III even judg- but the of having presided; trate’s and the district by him. 28 U.S.C. Certain- adopted report court the its recommen ly Congress must have believed that such a dations, dismissing by signed, the action provision was constitutional and that a followed, Ar magistrate exercising powers —with continuing complain chie of merits issues of the component only. A of our Court declined which necessarily of was a waiver of their rights to presiding address the issues an Article III advanced Archie for doing so officer—was judgment review and vacated of it would not have enacted such a law. determining on its own motion conclusion, congressional That although jurisdic that “the was without preemptive, not is entitled to considerable tion to proceedings.” conduct these deference. Christian, Cir. 1985). shearing We took the case en Modern authority given is not much regarding banc because of reservations concluding procedural irregularities that panel’s disposition. jurisdiction. work ouster of a court’s In analogous
the somewhat
situation
improperly
example,
removed
Jurisdiction or Procedure?
Court has held that
later,
Although, for reasons stated
though the
even
case has been removed
we conclude that reference of this ease for
contrary
statute,
applicable
never-
by magistrate
improper,
complaint may
theless
not be made of this
rendered
the district court
appeal, provided
thе first time on
beyond
jurisdiction.
was not
its
Personal
case was one of which the federal district
jurisdiction
lacking
was not
original
court would have had
jurisdiction.
—all
properly
were
before the court—and the Thus, in Grubbs v. General Electric Credit
judgment that the court rendered was well
699, 702,
Corp.,
405 U.S.
92 S.Ct.
subject
within
(1972),
judgment was at: by generally arrived del “Longstanding decisions of this Court egating conducting trials to clear, however, make that where after officials not authorized to such work removal a case is on the tried merits without consent objection without and the federal judges adopting as his subsequent own the judgment, enters the issue in product improper process. of that on appeal is not whether is, course, jurisdiction "jurisdiction" magistrate It derives from the con- today contract, court which our concern and which sent of alone is matter of appealable renders the decision below to our akin to that exercised the estimable Wapner. Court to 28 U.S.C. § 1291. Whatever removed, ings whether of fact recommendations for properly but dis- position have had to the district district court would court. The district federal original reject, had it may accept, modify of the case report. party objects any portion filed in court.” If a been that the district a de make novo today that no We need conclude 636(b)(1). determination issue. imaginable procedural lapse be so could Ford concluded that a trial would not egregious deprive federal fit into structure this subsection of We do court of case. Magistrate’s Act because such a trial hold, however, procedure em- produces factfindings “intrinsically incapa- procedure ployed here —a wanted required owing ble” of the de novo review of all the advance consent sрecial respect which a ver- regular outlandish as de- —was *4 dict entitled. is at 380. For the prive district court of to enter the reason, Ford also same held Section judgment which it did. Had there been the 636(b)(3), the permits which district court to complaint appropriate speedy of rever- assign magistrate the any to additional summary calendar would doubt- sal the however, duties not inconsistent with federal or ensued; law jurisdiction, less is Constitution, doеs not. authorize the entirely. matter We conclude that another him jury reference to aof trial without the wanting. it was not Id. at 381. Section parties’ consent. Necessity Consent to permit was construed nonconsensual ref- only of erence matters which would not be case, magistrate’s conclusion in this Id. jury. to a We submitted at 380. con- court, adopted by the district that Sections Ford holdings cur in these of 636(b)(1)(B) (b)(3) and authorize the noncon- gave, fully the reasons which it more stat- prisoner reference of a suit to a sensual opinion ed in its and summarized above. magistrate jury rejected by trial was in a our Court decision issued of 636(b) being Section unavailable a ba- shortly judgment was entered after referring magis- sis for civil cases to Estelle, present case. Ford trial, 636(c) trates for Section remains. Cir.1984). 374, requires of provision consent all parties, incorporating explicit provisions 636(b)(1)(B) authorizes the non- Section safeguarding of that the voluntariness magistrate to a consensual reference rules, sent; local, and are challenging both federal petition the conditions prisoner place dragooning that no magistrate may insure takes of confinement hearings place.3 proposed and submit find- conduct 636(c) paragraph shall be the concurrence of states: U.S.C. majority judges a court, of such all of (1) Uрon the consent full- concurrence, and when there is such magistrate part-time or a time United States judge. the chief then magistrate who as a serves full- (2) magistrate designated may any judicial or If exercise officer conduct all time proceedings (1) paragraph nonjury in a civil civil under of this or matter subsection, shall, case, entry the clerk of court at the time filed, notify designated parties of specifically action is their to exercise such the right juris- jurisdiction by to the exercise of such district court or courts he to consent parties parties, pur- Upon diction. decision shall serves. any specific request, to the clerk of court. There- written communicated suant to their after, nor the part-time magistrate may such neither the exercise other magistrate attempt persuade any shall or induce meets the bar trate any civil membership set to consent to reference forth Section 631(b)(1) to a Rules of court for chief magistrates magistrate matters reference certifies that a full-time procedures protect reasonably the voluntari- include available in accordance with parties' guidelines ness of the consent. established council (1) requires request from the Section parties a written When there more than one the circuit. court, part-time magistratе can exer- designation before of a district under second that contains a consent form. The noti- part: fication form states in (2) jurisdiction. requires cise Section the clerk NOTICE OF TO RIGHT CONSENTTO THE notify parties right of court to of their OF EXERCISE CIVIL JURISDICTIONBY requires consent then "the decision of the A MAGISTRATEANDAPPEALOPTION parties" to be communicated the court. provisions In accordance with the (2) of Title require explicitly prior Section does not 28, 636(c), you hereby U.S.C. § are notified written сonsent of in order for a magistrate magistrates that the United States full-time However, of this dis- to exercise duties, trict in addition to their to Federal Rule of Civil Pro- other 73, upon promulgated cedure the consent of all Court has in a civil require give may any Official Forms all conduct or all in a civil magistrate’s including trial, written consent nonjury or Neither Rule 73 nor the Forms order the of a final distinguish part-time mag- between cases your You should be aware that decision consent, consent, istrates and those before full-time or not to to the referral of Rule 73 states: your case to a United States Magistrates: Appeal Trial voluntary. Consent and entirely Only if all the Options mag- to the case consent to the reference to a (a) specifically Powers: Procedure. When judge magistrate istrate will either the or designated jurisdiction by to exercise such assigned whom the case has bеen be informed or local rule order of the district court your decision. thereto, when all may consent August Official Form effective 1983. One provided exercise the Title part of Official Form contains a consent to U.S.C. magistrate’s jurisdiction. part pro- Another proceedings, including nonjury *5 vides for election to to a district court trial, proceed- in a civil case. A record appeals rather than the ings shall be made in aсcordance with the part provides an order reference. The first 28, 636(c)(7). of Title U.S.C. § form, part pertinent of the consent which is (b) magistrate Consent. When a has been here, is as follows: designated to exercise civil trial give the clerk shall par- written notice to the opportunity ties of their to consent STATES DISTRICT COURT FOR THE_ to the UNITED DISTRICT OF_ by magistrate exercise a of civil case, 28, over the as authorized Title U.S.C. Plaintiff, If, period specified § within the versus rule, рarties agree magistrate’s local authority, they exercise of such shall execute No.- Docket joint separate and file a form of consent or Defendant. setting forms of consent forth such election. CONSENT TO PROCEED BEFORE A UNITED judge, magistrate, No district or other court STATES MAGISTRATE attempt persuade official shall to or a induce provisions U.S.C. In accordance with of Title party to consent to a reference of a civil parties abоve-captioned 636(c), the civil § rule, magistrate matter to a under this nor hereby voluntarily proceed waive their to rights before a magistrate be in- States of the United district court and consent party’s response formed aof to the clerk’s any have a United magistrate and all notification, parties all unless have consented further in trial, including to the referral of the matter to a of a final Advisory Committee comment Fed.R. 73(b) Civ.P. states: оpts The rule approach for a uniform Date implementing provision by the consent direct- ing notify parties the clerk to of their opportunity proceed mag- elect before a August Official Form effective by requiring istrate filing the execution and The Local Rules for the setting Southern consent form or District forms forth However, procedures Texas established assignment flexibility for the the election. at the local of cases to preserved pertinent part, In level is in that local rules will those deter- procedures state: mine how notice shall be communicated to Notice. specify and local rules will period notify The clerk of parties time court shall within which an election they all civil made. cases that consent to have 73(a) 636(c) magistrate____ interprets Fed.R.Civ.P. Such make notice shall be necessary magistrate plaintiff consent handed before a can or mailed to exer- or his representatives
cise
Rule
mandates that con-
at the
an
time
action
filed
sent be written and filed
and to
with the clerk.
the other
as attachments to
promulgated
copies
complaint
summons,
Court
one form
that
served____
consent,
right
notifies
of their
when
HIGGINBOTHAM,
circuits,
E.
Circuit
our
we
PATRICK
with
sister
In common
JOHNSON,
whom POLITZ and
with
636(c) against attack
upheld Section
have
Judges, join, specially concurring:
Circuit
grounds. Puryеar v.
on constitutional
(5th Cir.1984).
Ltd.,
Ede’s,
F.2d 1153
I concur with the result
reached
but,
Judge
eye
with one
on Chief
Gee
circuit,
that,
no
in our
It follows
dissent,
mat-
able
would as a
Clark’s
by a
kind can
conducted
jury trial
prudence
ter of
so on different
par
of all
magistrate
without
grounds.
narrower
We need
face
ties,
writing and filed before trial
given in
questions posed
before
prevent
recurrenc
commences. In order
magistrate
consent of the
without the
today’s appeal
of such situations
es
parties. There
no
but
super
in the exercise of
presents, and
magistrate
his
made
recommen-
com
visory powers, we direct that before
dation to the district
ob-
civil case in
mencing the actual trial
magistrate’s having presided
jected to the
preside
is to
magistrate
trial, although they
over the
were well
636(c),jury
authority of 28 U.S.C.
presided.
In
aware that a
inquire on the record of
nonjury, he shall
every
sense
consented.1 It is
real
filed consent to
has
each
whether
require
par-
the official forms
true that
magistrate’s presiding and shall receive
give
ties to
written consent
each on the
answer from
affirmative
trate’s
and true
proceeding further.4
record before
did not do so. The devia-
magistrate’s
comply
tion is the
failure
Matter in Hand
implementing
by insuring
rule
consent
above, the
noted
defi
As
we
take the form of written consent. Sеe
represented by the
procedure
fail
ciency
73(a)
73(b). I
nei-
would
Fed.R.Civ.P.
magis
to consent to
ure of
of the rule to be
ther find this violation
is not of such
presiding
this case
trate’s
*6
waivable,
nor so
“jurisdictional”
not
deprive
the district
egregiousness as
it,
ought
that we
to consider
substantial
Archie has
jurisdiction. Appellant
court of
sponte.
sua
appellees
complained of
never
supervisory di-
I
concur with the
also
appeal.
on
(understandably) do not raise it
rective
future cases.
for
being so,
being
a
and the defect
one, it has
The
been waived.
jurisdictional
dissenting:
CLARK,
Chief
been VACATED
panel decision has
issue in
majority
for
The
defines the
terms
to the
con
is REMANDED
cause
jurisdiction
court
and denies
appeal.
district
of the merits of the
sideration
application
their
make no distinction between
part-time
to full- and
Consent.
Execution of
The
accept
clerk shаll not
a consent form
signed
unless it has
by
been
all the
practice
or-
would indicate
court
Good
plaintiff
4.
in a
responsible
case. The
designation
plainly
ders of
or reference state
securing
the execution of a consent
statutory provision
pro-
under what
form
filing
and for
such form
court____
ceeding.
with the clerk of
Reference.
After the consent form has been executed
filed,
the clerk shall transmit it to the
Any
magistrate’s jurisdictiоn re
in the
flaw
district
assigned
to whom the case has been
early objection,
sulting
was
from Christian’s
approval
and referral of the
Agricor
See Inecon
cured when he consented.
magistrate____
case to a
Inc.,
(9th
Farms,
poration v. Tribal
review. believe ask whether lacked It reasoned that this court must notice critical defect in Ford Estelle established he could not judicial power. III the use of article conduct under the district 636(b)(1)(B) court’s reference correctly majority The observes (b)(3); (2) could enter district court subject judgment and the this action. But because he lacked begs important question. Had this consent. III conducted the article premise majority’s juris- is that the power judg- this his to enter dictional test should be administered ensuing on the verdict raise would not its officer—the question. happened. This is not what conceded, If merely trate. this be it serves improperly district court referred the to advance the to whether this еmpan- Then bound to notice breach per- eled the trial was conducted statutory and decisional limits on exer- son who had no judicial power cise of article III
trial under the statutes of the United
a non-article III official.
under the rules of the court.
I respectfully submit such unauthorized ac-
Finally,
the district
entered
put beyond
tion cannot be
independent
on
our
resulting
proceeding
the verdict
from a
any authority
adopting stamр
conducted
who lacked
notice
preside.
was as much a
judge. The proper exercise of our error-
legal stranger
judicial process
to the
ought
correction function
not to be limited
proceeding
determined the outcome
making
precatory
rule for future
bystander
would
been a
called in cases.
enough
from the street.
Is this “close
Magistrates
adjunct
are a valuable
government
Must
work?”
this court be
III judges.
аrticle
But
do not hold
bring
blind
error
do not
Congress
office under article III.
cannot
it
notice? I think not.
confer full article III
on them with-
one1) the
(and
If
this “if” is a debatable
abridging
out
the Constitution. Cf. North-
governing proceedings
mag
statute
Pipeline
ern
Construction Co. v. Mara-
constitutional,
istrates
consent of the
Pipe
Co.,
thon
Line
458 U.S.
102 S.Ct.
parties must be obtained. Such consent
(1982).
L.Ed.2d
The limited
lacking.
The majority does not base
delegation of
III power
article
tо conduct
Indeed,
holding
implied
consent.
judgments
trials and to enter final
directs that in all
voluntary,
future cases
*7
express
based on such trials is
cabined
express
present.
consent must be
Ltd.,
consent. Puryear v. Ede’s
portion
opinion
I concur in the
(5th Cir.1984).
importance
Necessity
entitled “The
In-
Consent.”
compliance
strict
with this essential re-
deed,
go
I would
further and
eliminate
now
quirement
my
disagreement.
the nub of
jurisprudence
from
as to
is,
In the
things,
constitutionаl scheme of
Smith,
the conflict
Rasberry
between
v.
view,
my
significance
equivalent
(5th Cir.1985) (unpublished
H39 place and dis- took
trict court. HARPER, al., et N.
Frank
Plaintiffs-Appellants, GULF RAIL- CENTRAL
ILLINOIS
ROAD, Defendant-Appellee.
No. 86-3057. of Appeals,
United States Court
Fifth Circuit. 4, 1987.
Feb.