Smith v. Chambers-Smith

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

DARRYL SMITH, CASE NO. 1:24-cv-505

Plaintiff,

vs. MAGISTRATE JUDGE

JAMES E. GRIMES JR.

ANETTE CHAMBERS-SMITH,

Defendant. REPORT AND

RECOMMENDATION

Plaintiff Darryl Smith has filed a document styled as “Plaintiff’s notice

of his non consent to disposition by magistrate (28 USC 636(c4).” Doc. 48, at 1.

Construing this filing as motion to withdraw consent to proceed before a

magistrate judge, I recommend that the motion be denied.1

Background

With the assistance of counsel, Larry D. Shenise, Smith filed this action

in March 2024. Doc. 1. The next day, the Clerk issued to the parties’ attorneys

a form on which the parties could indicate their consent or non-consent to the

exercise of jurisdiction by a Magistrate Judge. See Doc. 2. The form and

information attached to it referenced 28 U.S.C. § 636(c), Federal Rule of Civil

Procedure 73, and Local Rule 73.1. These documents informed the parties that

1 For reasons that are discussed below, a motion to vacate consent must

be decided by a district judge. See Fed. R. Civ. P. 73(b)(3).

the decision whether to consent to the exercise of jurisdiction by a Magistrate

Judge “is entirely voluntary.” Id. at 2. They also provided that the parties’

“response is joint, and disclosure of individual decisions is not required.” Id.

In December 2024, the Court granted in part and denied in part

Defendants’ motion to dismiss. Doc. 34. The next month, the Court scheduled

a case management conference. Doc. 36. In response, the parties filed a report

of their planning meeting. Doc. 37; see Fed. R. Civ. P. 26(f). In that report,

which was signed by Shenise and Defendants’ counsel, the parties stated that

they “do … consent to the jurisdiction of the United States Magistrate Judge

under 28 U.S.C. § 636(c).” Doc. 37, at 2. The Court then transferred this case

in accord with the parties’ consent. See non-document order (Feb. 24, 2025).

In early July 2025, the Court held a status conference, during which

Shenise explained that he intended to move to withdraw. That same day, the

Court received Smith’s June 25, 2025 “notice” of his termination of Shenise.

Doc. 41. In this notice, Smith stated that he had “fired” Shenise “as of” June

25, 2025. Id. at 1. Attached to this notice was a notice that Smith sent to

Shenise informing him of the termination. See Doc. 41-1.

Construing Smith’s notice as a motion, the Court granted it and also

granted a 30-day stay of case deadlines to allow Smith time to seek

replacement counsel. See non-document order (July 22, 2025). The Court then

held a telephonic status conference on August 25, 2025, at which Smith

appeared without counsel. See Doc. 43. The next day, the Court set a new

pretrial schedule. See Doc. 45.

Smith filed his notice of non-consent in September 2025. Doc. 48. In his

notice, Smith stated “that he does not consent to any dispositions, decisions

nor adjudications nor trial by magistrates.”2 Id. Smith recited that he “fired”

Shenise on June 25, 2025, and stated that he “never consented to any

disposition, trial nor adjudications by magistrate and never signed anything to

do so. Any such consent by the fired attorney was unauthorized and now

withdrawn.” Id.

Discussion

“The Federal Magistrate Act of 1979 expanded the power of magistrate

judges by authorizing them to conduct ‘any or all proceedings in a jury or

nonjury civil matter and order the entry of judgment in the case,’ as long as

they are ‘specially designated ... by the district court’ and are acting ‘upon the

2 Notably, Smith filed this action in federal court. And in federal courts,

the title magistrate hasn’t existed since 1990 when it was changed from

magistrate to magistrate judge. See Judicial Improvements Act of 1990, Pub.

L. No. 101-650, § 321, 104 Stat. 5089 (1990) (“After the enactment of this Act,

each United States magistrate ... shall be known as a United States magistrate

judge.”). “[T]he word ‘magistrate’ is [thus] no longer appropriately used as a

noun in federal courts, but only as an adjective, indicating the type of judge to

which one is referring. It is the equivalent of calling a district judge ‘district,’

a bankruptcy judge ‘bankruptcy’ or a circuit judge ‘circuit.’” Bird v. Nat’l

Aeronautics & Space Agency, No. 20-cv-275, 2022 WL 90515, at *1 n.1 (S.D.

Tex. Jan. 7, 2022).

consent of the parties.’”3 Roell v. Withrow, 538 U.S. 580, 582 (2003) (quoting

28 U.S.C. § 636(c)(1)). The procedure for consenting to the exercise of

jurisdiction by a magistrate judge is governed by 28 U.S.C. § 636(c)(2). “If a

magistrate judge is designated to exercise civil jurisdiction [under § 636(c)(1)],

the clerk of court shall, at the time the action is filed, notify the parties of the

availability of a magistrate judge to exercise such jurisdiction.” 28 U.S.C. §

636(c)(2). “The decision of the parties shall be communicated to the clerk of

court.” Id. Federal Rule of Civil Procedure 73(b), which implements Section

636(c), provides that “[t]o signify their consent, the parties must jointly or

separately file a statement consenting to the referral.” Fed. R. Civ. P. 73(b)(1).

“A district judge or magistrate judge may be informed of a party’s response to

the clerk’s notice only if all parties have consented to the referral.” Id. The

parties’ consent need not take a particular form. See Kadonsky v. United States,

216 F.3d 499, 502 (5th Cir. 2000).

The traditional rule in civil litigation is that, having chosen his attorney,

a litigant “cannot … avoid the consequences of the acts or omissions of [his]

freely selected agent.” Link v. Wabash R. Co., 370 U.S. 626, 633–34 (1962). It

follows that because “counsel is the client’s agent[,] the client need not sign

documents personally. Indeed, there is no need to get the client’s specific

3 This Court’s local rules provide that on “consent of the parties, all

Magistrate Judges are specifically designated within the meaning of 28 U.S.

C. § 636(c)(1) to conduct any and all proceedings in jury or non-jury civil

matters, to order entry of judgment and to adjudicate any post-judgment

matters.” L.R. 72.1.

approval for each step taken in litigation.” Noah v. Mancari’s Chrysler

Plymouth Jeep Eagle, Inc., 57 F. App’x 708, 709 (7th Cir. 2003). Rather,

“[a]ttorneys can consent on behalf of their clients as long as they had apparent

authority to do so.” Gevas v. Hoskinson, No. 11-cv-325, 2014 WL 886354, at *3

(S.D. Ill. Mar. 6, 2014) (citing Noah, 57 F. App’x at 709); see Zerega Ave. Realty

Corp. v. Hornbeck Offshore Transp., LLC, No. 04-civ-9651, 2011 WL 70593, at

*2 (S.D.N.Y. Jan. 10, 2011) (stating that “[a]n attorney’s consent on behalf of

his or her client binds the client” as “the general rule that an attorney has the

authority as an agent to bind a client on actions taken within the scope of the

attorney’s authority applies, and an attorney’s consent to proceed before a

magistrate judge is sufficient under the statute.”) (citation omitted); Howlett v.

School Bd. of City of Norfolk, No. 200cv168, 2001 WL 34047321, at *3 (E.D. Va.

Apr. 9, 2001) (“Several courts have addressed a party’s claim that it did not

consent to proceed before a magistrate judge, but that counsel unilaterally

consented. These courts have overwhelmingly held that an attorney may

consent on behalf of a party to proceed before a magistrate judge, and that the

consent is binding on the party.”) (citations omitted).

Here, Smith does not claim that Shenise was not his counsel when

Shenise signed the document on which he indicated Smith’s consent to

proceeding before a magistrate judge. Rather, Smith attempts to retroactively

withdraw that consent based on his later decision to terminate his attorney-

client relationship with Shenise. But there is no absolute right to withdraw

consent. Forsyth v. Brigner, 156 F.3d 1229, 1998 WL 415841, at *2 (6th Cir.

1998) (table) (“A party in a civil case has no absolute right to withdraw consent

to trial and other proceedings before a magistrate judge.”). Because Shenise

was authorized to act on Smith behalf when Shenise granted consent, Smith is

bound by Shenise’s action taken within the scope of that authority. Brown v.

AmSouth Bank, No. 15-5468, 2016 WL 4271874, at *3 (6th Cir. Mar. 23, 2016)

(“Here, the Browns’ counsel consented to the referral of this case to the

magistrate judge, and the Browns are bound by that decision.”); see United

States v. Muhammad, 165 F.3d 327, 331 (5th Cir. 1999) (upholding an

attorney’s consent to proceed before a magistrate judge as binding upon the

party; “As the Supreme Court [has] recognized ..., our judicial system is based

on ‘representative litigation, in which each party is deemed bound by the acts

of his lawyer-agent.’ ... One can only imagine the havoc that would ensue

should we allow otherwise.”) (internal citations omitted).

To show that a Court should vacate a reference to a magistrate judge, a

litigant must present extraordinary circumstances. Fed. R. Civ. P. 73(b)(3).

The term extraordinary circumstances “remains undefined.” Sutphen v.

Midwest Constr. Servs., Inc., No. 20-cv-0648, 2023 WL 3453644, at *5 (N.D.

Ohio May 15, 2023) (citing Murret v. City of Kenner, 894 F.2d 693, 695 (5th Cir.

1990)). The only supporting basis that Smith cites in his notice is the fact that

he fired Shenise. Whatever extraordinary circumstances means in this context,

it cannot include the ordinary decision to fire counsel. So Smith’s decision to

fire Shenise does not provide a basis to vacate the Court’s referral to a

magistrate judge. See Dale v. Biegasiewicz, No. 17-cv-1211F, 2021 WL

2187148, at *2 (W.D.N.Y. May 28, 2021) (“Demonstrating the requisite

‘extraordinary circumstances’ is difficult.” (citation omitted)), aff’d sub nom.

Dale v. Raczynski, No. 21-1602, 2022 WL 4479528 (2d Cir. Sept. 27, 2022).

One final point. Rule 73(b)(3) makes explicit that only “the district

judge” may vacate a reference to a magistrate judge. Branch v. Umphenour,

936 F.3d 994, 1002 (9th Cir. 2019). In unpublished decisions, the Sixth Circuit

has both issued a decision permitting a magistrate judge to rule on a motion to

vacate and a decision finding that only a district judge may rule on such a

motion. Compare Moses v. Sterling Com. (Am.), Inc., 122 F. App’x 177, 181 (6th

Cir. 2005) (“It was therefore appropriate for Magistrate Judge King to rule on

Moses's request to vacate the reference, dismiss his action with prejudice,

impose sanctions, and decline to disqualify the defense attorneys.”), with

Milhous v. Metro. Gov’t of Nashville & Davidson Cnty., 221 F.3d 1335, 2000

WL 876396, at *1 (6th Cir. 2000) (table) (“It is clear that once a case has been

referred to a magistrate under § 636(c), the district judge is the only one who

can withdraw the reference.”). Given this conflict and the express language of

Rule 73, the better course is to issue a report and recommendation on Smith’s

motion. See Jones v. Ridder, No. 19-cv-599, 2021 WL 1572280, at *3 (S.D. Ohio

Apr. 22, 2021).

Conclusion

The Court should deny Smith’s notice, construed as a motion, to vacate

referral to a magistrate judge.

Dated: September 15, 2025

/s/ James E. Grimes Jr.

James E. Grimes Jr.

U.S. Magistrate Judge

OBJECTIONS

Any objections to this Report and Recommendation must be filed with

the Clerk of Court within 14 days after the party objecting has been served

with a copy of this Report and Recommendation. 28 U.S.C. § 636(b)(1). Failure

to file objections within the specified time may forfeit the right to appeal the

District Court’s order. See Berkshire v. Beauvais, 928 F.3d 520, 530–531 (6th

Cir. 2019).