Opposition Brief — Goodyear Tire & Rubber Co. v. Malek

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=s Supreme Court. U.S.

FILED

DEC 19 2003

No. 03-695 OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

THE GOODYEAR TIRE & RUBBER COMPANY,

Petitioner,

Vv.

FREDERIC V. MALEK,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO

THE FOURTH CIRCUIT COURT OF APPEALS

BRIEF FOR RESPONDENT

IN OPPOSITION

William W. Maywhort Stephen G. Masciocchi, P.C.

Counsel of Record Kristin R. Baker

HOLLAND & HART uve HOLLAND & HART uve

8390 E. Crescent Parkway 555 Seventeenth Street

Suite 400 Suite 3200

Greenwood Village, CO 80111 Denver, CO 80201-8749

(303) 290-1600 (303) 295-8000

Attorneys for Respondent

Frederic V. Malek

QUESTION PRESENTED

Pursuant to Federal Rule of Civil Procedure

83(a) and the Federal Magistrates Act, Local

Rule 72 of the Eastern District of Virginia

District Court authorizes and specifically

designates magistrate judges to perform all

duties authorized by the Federal Magistrates

Act. Is Local Rule 72 valid?

PARTIES TO THE PROCEEDINGS

Pursuant to Supreme Court Rule 29.6, Respondent

Frederick V. Malek states that he is an individual, nota

corporation. Therefore, Rule 29.6 is inapplicable.

TABLE OF CONTENTS

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I. THE FOURTH CIRCUIT’S RULING

IS NOT IN CONFLICT WITH ITS

OTHER DECISIONS OR DECISIONS

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A. Local Rule 72 Conferred Jurisdiction on

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B. Goodyear’s Position Invites Chaos and

Confusion in Courts Across the Country. ........ 6

C. The April 30 Order was Nondispositive,

and Goodyear Failed to File Written .

Objections in the District Court. ........0...000...... 9

Il. GODODYEAR’S INSERTION OF ITS

ARGUMENT ON THE MERITS OF

THE APRIL 30 ORDER DOES NOT

ALTER THE PROCEDURAL NATURE

OF THIS CASE, CORRECTLY DECIDED

BY THE FOURTH CIRCUIT. .........0--000--ccccccceee. ll

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TABLE OF AUTHORITIES

FEDERAL CASES

A-Mark Auction Galleries, Inc. v. Am.

Numismatic Assoc., 233 F.3d 895

(te MO. nos.

Am. Stock Exch. v. Mopex, Inc..,

215 F.R.D. 87(S.D.N.Y. 2002).............

Bhan v. NME Hosps., Inc..

929 F.2d 1404 (9th Cir. 1991)...

Boughton v. Cotter Corp., 10 F.3d 746

(CH IPS nica

Dixon v. Francis, 2001 U.S. App.

LEXIS 2774 (4th Cir. 2001)..................

EI. DuPont de Nemours & Co. v.

United States, 15 F. Supp. 2d 859

(Oe ehs, Bh . } earns

Gomez v. United States, 490 U.S. 858

re ey Bareneicae Roos:

In re Charlotte Observer, 882 F.2d 850

(4th Cir. 1989). ccecceccccecececeeeeeeee,

Mathews v. Weber, 423 U.S. 261

SER a oe ee

MDK, Inc. v. Mike's Train House, Inc.,

27 F.3d 116 (4th Cir. 1994)...

NLRB v. Frazier, 966 F.2d 812

(3d Cir. 1992) ooo

sikegous 7 o4

Reynaga v. Cammisa, 971 F.2d 414

Ce. Fi heist eee 8

Simmons v. City of Racine, 37 F.3d 325

CFU Gat: DRE 55s cesar 12

Strawbridge v. Sugar Mountain Resort, Inc..,

243 F. Supp. 2d 472 (W.D.N.C. 2003).....00.00.00.... 7

Thomas v. Arn, 474 U.S. 140 (1985) .000.. cc. 10

Thomas E. Hoar, Inc. v. Sara Lee Corp.,

DOO F 26 S22 CSO EG, UGGS) oo vices cissvertcarideoaccias 9

United States v. Auberg, 2001 WL 987802

(3.0. TR. POOF, Beee Bes cisssstisistsisires eens 6

Wells v. Shriners Hosp., 109 F.3d 198

(QU TE. FOB ED. 5.5 so sevcsdcxsteeres boscceoe stave ee ete 10

Wingerter v. Chester Quarry Co.,

ISS F306 GST C7 Cav, CPR). .cccscevsivciscccerunns 7

DOCKETED CASES

Malek, et. al. v. Goodyear Tire & Rubber Co.,

Pip. Ghoul F Fa CEP. GAO oie iisctisdicvecstist eae 2

CONSTITUTIONAL PROVISIONS,

STATUTES & RULES

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2B U.S.C. $696 6. ooccccccscceeisterscss 2, 4, 5, 6, 8, 10

BWUSC 4H ..nn ee 12

Fed. R. Civ. P. 72........00...... 2, 3, 4,5, 7, 8, 9, 10, 11

Fed. R. Civ. P. €3(a)..........0..05.5.5

Eastern District of Virginia

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Eastern District of Oklahoma

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Northern District of Ohio

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Eastern District of North Carolina

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Northern District of Indiana

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Middle District of Alabama

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Southern District of California

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Western District of Texas

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~ OPINIONS BELOW

Respondent accepts Petitioner’s statements regarding

the opinions below. Respondent adds that after the Fourth

Circuit dismissed the Petitioner’s appeal by Order entered

August 6, 2003 (Pet. App. 2a-3a), the Magistrate Judge

granted Respondent’s Motion to Lift the Stay by Order

entered on November 21, 2003. (App. A-1).

STATUTES AND RULES INVOLVED

Federal Rule of Civil Procedure 83(a), states as

follows:

(1) Each district court, acting by a

majority of its district judges, may,

after giving appropriate public

notice and an opportunity for

comment, make and amend rules

governing its practice. A local rule

shall be consistent with—but not

duplicative of—Acts of Congress

and rules adopted under 28 U.S.C.

§§ 2072 and 2075, and shall

conform to any uniform numbering

system prescribed by the Judicial

Conference of the United States. A

local rule takes effect on the date

specified by the district court and

remains in effect unless amended

by the court or abrogated by the

judicial council of the circuit.

Copies of rules and amendments

shall, upon their promulgation, be

furnished to the judicial council

and the Administrative Office of

the United States Courts and be

made available to the public.

Eastern District of Virginia Local Rule 72, states as

follows:

Magistrate Judges of this District

serve as judicial officers of the

Court and are authorized and

specially designated to perform all

duties authorized or allowed to be

performed by United States

magistrate judges by the United

States Code and any rule governing

proceedings in this Court.

Duties and cases may be assigned

or referred to a Magistrate Judge

by an Order entered in the action

or on the instructions of a District

Judge.

Article III of the United States Constitution, Title 28 of

the United States Code Section 636, and Federai Rule of Civil

Procedure 72 are reproduced in Petitioner’s Appendix.

STATEMENT OF THE CASE

This action is ancillary to the main litigation pending in

the United States District Court for the District of Colorado

entitled Malek, et. al. v. Goodyear Tire & Rubber Co., No. 02-

B-1772 (D. Colo.). In the main litigation, Malek is one of 40

plaintiffs (the “Malek Homeowners”) seeking damages arising

from the installation of Goodyear’s defective Entran II hose in

26 different properties. In February of 2003, respondent

Frederick V. Malek (“Malek”) issued a subpoena in the United

States District Court for the Eastern District of Virginia to

petitioner The Goodyear Tire & Rubber Company

(“Goodyear”) seeking discovery of documents and other

materials from Rowan & Blewitt, a public relations firm

Goodyear hired in connection with the Colorado litigation.

Goodyear filed this miscellaneous action in the Eastern

District of Virginia and sought to quash the subpoena.

Pursuant to Local Rule 72, the matter was assigned to a

magistrate judge. By Order dated April 30, 2003, the

Magistrate Judge rejected Goodyear’s claims that the

subpoenaed documents and materials were privileged, and

held that the Malek Homeowners were entitled to obtain the

subpoenaed documents and to take a deposition from a

Rowan & Blewitt representative (the “April 30 Order”). (Pet.

App. 6a-7a).

Subsequently, Goodyear failed to comply with Federal

Rule of Civil Procedure 72(a), which requires that objections

to a magistrate judge’s order be filed in the district court

(“Federal Rule 72”). Instead, Goodyear appealed directly to

the Fourth Circuit, and asked the Magistrate Judge to Stay the

April 30 Order pending appeal. By Order entered on May 29,

2003, the Magistrate Judge granted the stay, reasoning that the

Malek Homeowners would not suffer substantial harm because

the stay would be brief. (Pet. App. 4a-5a). The Magistrate

Judge predicted that because a party may not appeal directly

to the Court of Appeals from a magistrate judge’s

nondispositive pretrial order, Goodyear’s appeal would be

summarily dismissed.

The Magistrate Judge was right. The Fourth Circuit

dismissed Goodyear’s appeal by Order dated August 6, 2003,

and held that Goodyear waived its right to appeal the

nondispositive pretrial Order by not first filing its objections

with the district court. (Pet. App. 2a-3a). The Fourth Circuit

quoted Federal Rule 72(a): “[A] party may not thereafter

assign as error a defect in the magistrate judge’s order to

which objection was not timely made.” (Pet. App. 2a).

Goodyear first raised its jurisdictional challenges to the

Magistrate Judge’s authority in the Fourth Circuit. The

Fourth Circuit again rejected the arguments in denying

Goodyear’s Motion for Rehearing or Rehearing En Banc;

wherein no member of the court requested a poll on the

petition for rehearing en banc. (Pet. App. la). Goodyear now

raises its arguments before this Court.

After the Fourth Circuit dismissed the case, the Malek

Homeowners moved to lift the stay placed on the subpoenaed

documents. Goodyear opposed the stay with the same

jurisdictional arguments it sets forth here. The Magistrate

Judge rejected those arguments and lifted the stay by Order

dated November 21, 2003. (App. A-1). This time, Goodyear

filed its objections to the November 21 Order in the District

Court pursuant to Federal Rule 72. Chief Judge Hilton

vacated the hearing, and the parties are currently waiting for

an Order.

In sum, Goodyear has lost at every turn with its “lack

of jurisdiction” argument. The arguments have been rejected

by the Magistrate Judge, and the entire Fourth Circuit. But

Goodyear still asks this Court to decide in its favor and

against local rules across the country by ruling that magistrate

judges cannot perform the duties prescribed in the United

States Code after the grant of authority by local rule.

ARGUMENT

Goodyear’s entire appeal is controlled by Eastern

District of Virginia Local Rule 72, which Goodyear failed to

cite in its Petition. Local Rule 72 contains the grant of

jurisdiction that Goodyear claims is missing here. Other

district courts across the country have enacted similar local

rules pursuant to the Federal Magistrates Act, and such rules

are vital to the efficient functioning and effective case

management of the district courts.

I. THE FOURTH CIRCUIT’S RULING IS NOT IN

CONFLICT WITH ITS OTHER DECISIONS OR

DECISIONS FROM OTHER CIRCUITS.

Goodyear asserts that the Fourth Circuit’s decision is in

direct conflict with one other Fourth Circuit decision and a

Ninth Circuit decision because the Magistrate Judge had no

jurisdiction to enter the discovery order at issue. Goodyear

alleges that based on these other decisions, the Fourth Circuit

should have held that the Magistrate Judge never had

jurisdiction, that the April 30 Order was a dispositive Order,

and therefore, the proper recourse was to use its discretion and

deem the appeal filed in the Fourth Circuit as filed in the

District Court. See Pet. at 3. Goodyear thereby attempts to

avoid the effect of its failure to file written objections in the

district court pursuant to Federal Rule 72 by now claiming

that the Magistrate Judge lacked jurisdiction to issue the

April 30 Order.

Consistent with its previous decisions, and decisions

from other courts, the Fourth Circuit recognized that Eastern

District of Virginia Local Rule 72 conferred jurisdiction on

the Magistrate Judge. Therefore, it rejected Goodyear’s

jurisdictional arguments and refused to allow Goodyear to

avoid its mistake of not filing written objections to the

Magistrate Judge’s April 30 Order pursuant to Federal Rule

Fae

Because_Goodyear is asking this Court to hold that the

Magistrate Judge did not have the authority to enter an Order

on a nondispositive pretrial matter, even though Local Rule 72

expressly confers jurisdiction pursuant to 28 U.S.C. § 636,

Goodyear is really asking this Court to hold that Local Rule

72 is an invalid grant of authority. Courts across the nation

have enacted similar local rules that confer jurisdiction upon

magistrate judges to decide pretrial matters, like the discovery

issue here, pursuant to 28 U.S.C. § 636 and Federal Rule of

Civil Procedure 83(a). Because Goodyear fails to

acknowledge this local rule practice, and fails to make any

showing that such local rules are invalid under any theory, the

Petition should be denied.

A. Local Rule 72 Conferred Jurisdiction on the

Magistrate Judge.

Goodyear concedes that under 28 U.S.C. § 636,

magistrate judges may rule on nondispositive matters without

consent if the magistrate is “designate[d]” to hear the matter.

28 U.S.C. § 636(b)(1)(A). Goodyear errs, however, in

asserting that a specific district judge had to designate a

particular magistrate judge to hear the discovery dispute at

issue.

Federal Rule of Civil Procedure 83(a) and 28 U.S.C.

§ 636(b)(4) gives district courts the power to enact local rules

pursuant to which magistrate judges shall discharge their

duties. Designations of magistrates under section 636 can be

effectuated in either of two ways: by a specific order of

reference in a particular case or generally by court-wide local

rules or standing orders. United States v. Auberg, 2001 WL

987802, *2 (S.D. Ind. July 9, 2001). Local Rule 72 of the

Eastern District of Virginia constitutes just such a general

designation. The rule authorizes and designates magistrate

judges in the district to hear matters like the dispute below:

Magistrate judges of this District

serve as judicial officers of the

Court and are authorized and

specially designated to perform all

duties authorized or allowed to be

performed by United States

magistrate judges by the United

States Code and any rule governing

proceedings in this Court.

Local Rule 72 (emphasis added). This general designation

conferred jurisdiction on the Magistrate Judge here, and

therefore, he had jurisdiction to enter his April 30 Order.

B. Goodyear’s Position Invites Chaos and

Confusion in Courts Across the Country.

Other district courts, like the Eastern District of

Virginia, have enacted local rules specifically and generally

conferring jurisdiction on magistrate judges to hear pretrial

matters, such as discovery issues, as permitted by 28 U.S.C.

§ 636(b)(1)(A). In fact, automatic referral of nondispositive

motions to magistrates by local rule or standing order is

common practice in federal district courts. See Jn re

Charlotte Observer, 882 F.2d 850, 851 (4th Cir. 1989)

(recognizing standing order authorizing magistrate to hear and

determine nondispositive discovery motions); Wingerter v.

Chester Quarry Co., 185 F.3d 657, 660-61 (7th Cir. 1998)

(recognizing designation of magistrate judge to hear pre-trial

matters occurs automatically by operation of lower court’s

local rule); Strawbridge v. Sugar Mountain Resort, Inc.,

243 F. Supp. 2d 472, 474-75 (W.D.N.C. 2003) (recognizing

standing orders of designation to magistrate judges).

Moreover, this Court has upheld the automatic referral

to magistrate judges for a report and recommendation in social

security benefit cases based in part on Congress’ recognition

of the “avalanche of additional work” for the district courts.

Mathews v. Weber, 423 U.S. 261, 268-69, 273 (1976). Here,

the Magistrate Judge was referred a mundane discovery issue,

which is governed by a clearly erroneous standard of review

in the district court if a party files objections pursuant to

Federal Rule 72. See Bhan v. NME Hosps., Inc., 929 F.2d

1404, 1414-15 (9th Cir. 1991), cert denied, 502 U.S. 994

(1991) (holding the delegation to a magistrate judge of the

powers to decide a routine discovery matter was not an

unconstitutional delegation of authority because of the clearly

erroneous standard of review).

These local rules providing for automatic referral are

well-established and efficiently govern pretrial procedures in

the already overburdened United States district courts. See,

e.g., the following Local Rules authorizing and designating

magistrate judges to perform the duties prescribed in the

United States Code: Eastern District of Oklahoma Local Rule

72.1; Northern District of Ohio Local Rule 72.2; Eastern

District of North Carolina Local Rule 72.2; Northern District

of Indiana Local Rule 72.1; Middle District of Alabama Local

Rule 72.2; Southern District of California Local Rule 72.2:

Western District of Texas Local Rule 72; Southern District of

Illinois Local Rule 72.1 (App. B-1 —- B-25). Invalidating such

local rules would unnecessarily burden courts across the

country with all of the duties now handled effectively and

efficiently by magistrate judges. If the Court were to grant

the relief Goodyear is seeking here, the Court’s decision

would be just the beginning of a wholesale alteration of the

Federal Magistrates Act and the congressionally-granted

authority of the district courts to manage their dockets.

Goodyear has made no showing that such a wholesale

alteration is warranted. See Gomez v. United States, 490 U.S.

858, 869-70 (1989) (recognizing that the magistrate system

plays an integral role in the Federal Judicial System).

Due to the practice across the country of assigning

cases to magistrate judges pursuant to local rules, the conflict

Goodyear alleges between the Fourth and the Ninth Circuits is

non-existent. In Reynaga v. Cammisa, 971 F.2d 414 (9th Cir.

1992), the court recognized that jurisdiction can be conferred

on magistrate judges by specific or general orders. See id. at

415 n.1 (magistrate judge did not have jurisdiction because no

order, “specific or general,” authorizing magistrate to exercise

jurisdiction existed). In any event, the facts of Reynaga are

inapposite. The magistrate judge in Reynaga exceeded his

statutory authority under 28 U.S.C. § 636 by entering an order

effectively denying a request for an injunction. 971 F.2d at

416-17.

In its Petition, Goodyear fails to acknowledge the

Eastern District of Virginia Local Rule 72 and the widespread

practice of conferring jurisdiction upon magistrate judges by

local rule. Goodyear also fails to offer any support why such

rules are invalid. As such, the Petition should be denied;

Goodyear should not be allowed to avoid its procedural

mistake in failing to follow Federal Rule 72 at the expense of

the Federal Magistrates Act, Local Rules of Procedure, and

the authority of the district courts to manage their dockets.

ot The April 30 Order was Nondispositive, and

Goodyear Failed to File Written Objections in

the District Court.

Goodyear’s contention that the April 30 Order was a

dispositive Order is easily dismissed. The April 30 Order was

nondispositive because it resolved a discovery issue.

Thomas E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522, 525

(2d Cir. 1990) (“matters concerning discovery generally are

considered ‘nondispositive’ of the litigation”). Goodyear

responds that the Order was dispositive of all of the issues in

this case. See Pet. at 11. But this is not an independent

“case.” It is a proceeding ancillary to an action pending in the

United States District Court for the District of Colorado and it

must be examined in the context of the main action. See

MDK, Inc. v. Mike's Train House, Inc., 27 F.3d 116, 121 (4th

Cir. 1994), cert denied, 513 U.S. 1000 (1994). The Magistrate

Judge’s April 30 Order addressed only a discovery issue and

did not resolve any substantive claim for relief in the

Colorado action. As such, the April 30 Order is

nondispositive. See id.

Indeed, the cases Goodyear cites actually support

Malek’s position. In Am. Stock Exch. y. Mopex, Inc.,

215 F.R.D. 87, 92 (S.D.N.Y. 2002), the court held that “fal

ruling is ‘dispositive’ if it resolves substantive Claims for

relief rather than mere issues in the litigation.” Jd. Here, the

Magistrate Judge resolved no substantive Claims for relief; he

merely resolved a single discovery issue. Moreover,

Goodyear relies on NLRB v. Frazier, 966 F.2d 812 (3d Cir.

1992), a case in which the defendant actually followed Federal

Rule 72, to excuse Goodyear’s failure to follow the same rule.

Goodyear also alleges a conflict between the

unpublished decision here and another unpublished Fourth

Circuit case. Dixon v. Francis, 2001 U.S. App. LEXIS 2774

(4th Cir. 2001), is inapposite. In Dixon, the magistrate judge

entered a dispositive order. Here, the Magistrate Judge was

specifically designated to exercise his Statutory authority by

Local Rule 72 and 28 U.S.C. § 636, and he acted within that

authority when he issued his nondispositive April 30

discovery order. Because the Magistrate Judge’s April 30

Order was a nondispositi:ve order, Goodyear had to file written

objections to the District Court within 10 days. Fed.R.Civ.P.

72(a). By failing to file written objections, Goodyear waived

its right to appeal. See Thomas v. Arn, 474 U.S. 140, 151-52

(1985) (holding appellate court could properly exercise its

supervisory power to establish a rule that the failure of

appellant to file objections to a magistrate judge’s report

waived the right to appellate review). See also Wells v.

Shriners Hosp., 109 F.3d 198, 201 (4th Cir. 1997).

Goodyear asserts that it filed a notice of appeal to the

Fourth Circuit in the district court and that should be

sufficient to meet its Federal Rule 72 obligation because it did

not know where to file its objections. See Pet. at 13. But

Goodyear filed its ancillary case in the Eastern District of

Virginia, so surely, it could have filed its objections to the

Magistrate Judge’s Order in the same court. Moreover, this

argument is completely undermined by Goodyear’s actual

filing of objections to the Magistrate Judge’s November 21

Order lifting the stay. This latter filing is the best evidence

that Goodyear could have filed objections in the district court

to the Magistrate Judge’s earlier April 30 Order, and the

objections would have been assigned to a district judge. In

other words, the fact that Goodyear had its appeal of the

November 21 Order heard by a district judge demonstrates

that it simply erred when it appealed the April 30 Order

directly to the Fourth Circuit.

Goodyear asserts that a district court clerk is somehow

responsible for Goodyear’s noncompliance with Federal Rule

72. See Pet. at 13, 15. But it is not the clerk’s duty to advise

counsel of the local rules, or the reasons behind its case

assignments. Attorneys themselves have a duty to investigate

the local rules. See E.J. DuPont de Nemours & Co. v. United

States, 15 F. Supp. 2d 859, 861-862 (Ct. Int'l Trade 1998)

(“reliance on legal advice of clerk's office .. . does not justify

the untimely filing of notice of appeal because the Federal

Rules and case law interpreting the rules are Clear”).

II. GOODYEAR’S INSERTION OF ITS ARGUMENT

ON THE MERITS OF THE APRIL 30 ORDER

DOES NOT ALTER THE PROCEDURAL NATURE

OF THIS CASE, CORRECTLY DECIDED BY THE

FOURTH CIRCUIT.

Goodyear’s argument that this appeal is cert-worthy is

based partially on its unhappiness with the underlying

April 30 Order. See Pet. at 18-21. In aclever feint, Goodyear

seeks to argue the privilege issues involved in the April 30

Order to avoid facing its procedural error. But the Fourth

Circuit did not address any of those issues and none of them is

presented here. Rather, the Fourth Circuit held only that

Goodyear’s failure to file its written objections to the April 30

Order pursuant to Federal Rule 72 precluded appellate

jurisdiction. Therefore, these arguments are irrelevant in

determining the jurisdictional issues involved in this appeal.

Moreover, Goodyear erroneously contends that it wil]

forever lose its right to appeal from the April 30 Order if the

Petition is denied. In fact, if any of the documents at issue are

used at trial in the Colorado litigation, and if an adverse

judgment is entered against Goodyear, Goodyear will be

entitled to raise on appeal its objections to any use of such

documents. See Boughton v. Cotter Corp., 10 F.3d 746, 749

(10th Cir. 1993) (if privileged documents are wrongly

produced, any adverse judgment can be reversed, and the

parties forbidden use of the documents on retrial).

Additionally, Goodyear fails to recognize that it is not

entitled to an appeal in the Fourth Circuit from the April 30

Order. Even if Goodyear had followed Federal Rule 72, the

April 30 Order is not a final, appealable order, and the Fourth

Circuit does not invoke the collateral order doctrine to review

appeals from discovery orders, even those involving claims of

privilege. See MDK, 27 F.3d at 119-2] & n.2; Simmons vy.

City of Racine, 37 F.3d 325, 327 (7th Cir. 1994) (discovery

orders issued over an objection based on privilege are

generally not appealable); Boughton, 10 F.3d at 749-50

(stating that in virtually every case, other circuits have held

that orders compelling disclosure of information claimed to be

subject to the attorney-client privilege are not reviewable as

collateral orders) (citing cases); A-Mark Auction Galleries,

Inc. v. Am. Numismatic Assoc., 233 F.3d 895, 897-99 (Sth Cir.

2000) (relying on MDK, court held that a discovery order

issued by a Texas federal district court was not a final order

under 28 U.S.C. § 1291 because it was ancillary to the main

case pending in Colorado).

Lastly, Goodyear states that “the parties agreed to have

Goodyear’s Motion to Quash in Malek listed for hearing on

March 21, 2003,” which resulted in the April 30 Order. See

Pet. at 15. Goodyear never raised its jurisdictional challenges

at that time. Only after losing on the merits pursuant to the

April 30 Order did Goodyear raise its jurisdictional challenges

in response to Malek’s motion to dismiss in the Fourth

Circuit. Because (1) Goodyear’s jurisdictional challenges are

a thinly-veiled effort to avoid its procedural mistake,

(2) Goodyear retains a right to raise its challenges to the use

of any of the subpoenaed documents in an appeal from an

adverse judgment in the main litigation in the District Court of

Colorado, and (3) ultimately Goodyear has no right to appeal

from the April 30 Order in the Fourth Circuit, the issues raised

in the Petition are procedural only and do not warrant

certiorari.

CONCLUSION

The Petition should be denied.

Respectfully submitted,

William W. Maywhort

Counsel of Record

HOLLAND & HART up

Suite 400

8390 E. Crescent Parkway

Greenwood Village, CO 80111

Stephen G. Masciocchi, P.C.

Kristin R. Baker ;

HOLLAND & HART up

555 Seventeenth Street,

Suite 3200

Post Office Box 8749

Denver, CO 80201-8749

Attorneys for Respondent

Frederick V. Malek

APPENDIX

A-1

IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF VIRGINIA

Alexandria Division

THE GOODYEAR TIRE & RUBBER CO., )

Plaintiff, )

V. : CIVIL ACTION NO. 03-MC-8

)

FREDERIC V. MALEK, )

)

Defendant.

ORDER

For the reasons stated from the bench, and in accord

with specific rulings thereto, it is

ORDERED,

Defendant’s Motion to Lift Stay is GRANTED. This

Order will be STAYED for a period of twenty-one (21) days.

Entered this 21st day of November, 2003.

/s/ Barry R. Poretz

Barry R. Poretz

United States Magistrate Judge-

Alexandria, Virginia

B-1]

WEST’S OKLAHOMA COURT RULES AND PROCEDURE

UNITED STATES DISTRICT COURT FOR THE EASTERN

DISTRICT OF OKLAHOMA LOCAL CIVIL RULES OF THE

UNITED STATES DISTRICT COURT FOR THE EASTERN

DISTRICT OF OKLAHOMA

Copr. © West Group 2003. No claim to orig--U.S. govt.

works.

Current with amendments received through 11/1/2002

LOCAL RULE 72.1 MAGISTRATE JUDGES

A. Authorization and Duties. All Magistrate Judges

duly appointed and acting as such in this District are

designated and authorized to perform the duties prescribed by

28 U.S.C. §§ 636(a)(1), (2), and (3); (b)(1)(A), (B), and (C);

(b)(2); and (b)(3).

B. Civil Cases--Non-dispositive Pretrial] Matters.

Pursuant to 28 U.S.C. § 636(b)(1)(A), a District Judge may

designate a Magistrate Judge to hear and determine any

pretrial matter in any pending civil action, except for the

following motions:

l. For injunctive relief,

a For judgment on the pleadings;

Ls For summary judgment;

4. To dismiss; and

3 To permit maintenance of class action.

The Magistrate Judge shall announce in open court, or

file his or her report and recommendations with the Court

Clerk. Any party objecting to the Magistrate Judge’s oral

findings or report and recommendation may file objections

within ten (10) days after the oral findings are announced or

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report and recommendation is served. Objections shall be

accompanied by a brief which sets forth with particularity the

grounds for the objection. Any objections not so made shall

be deemed waived, and the Court will enter such order as it

deems appropriate.

ae Civil Cases--Dispositive Matters. Pursuant to

28 U.S.C. § 636(b)(1)(B), a District Judge may designate a

Magistrate Judge to conduct hearings, including evidentiary

hearings, and to submit proposed findings of fact and

recommendations for the disposition of any of the motions

excepted from Rule 72.1(B). The Magistrate Judge shall file

his proposed findings and recommendations with the Court,

mailing copies thereof to all parties who shall have ten (10)

days after service thereof to serve and file specific written

objections thereto. If no such objections are filed, the

Magistrate Judge’s findings and recommendations may be

accepted by the District Judge and appropriate orders entered

without further notice.

D. Service as Special Master. Pursuant to

28 U.S.C. § 636(b)(2), a District Judge may designate a

Magistrate Judge to serve as a Special Master in any civil

case, upon consent of the parties. The Magistrate Judge shall

then proceed according to Rule 53, Federal Rules of Civil

Procedure. In the absence of the consent of the parties, the

appointment of a Magistrate Judge as a Special Master may be

made only upon a showing of the exceptional conditions

required by Rule 53(b), Federal Rules of Civil Procedure.

[Effective October |, 1996. ]

US. Dist. Ct. Rules E.D.Okl., EDOK LR 72.1-Civil

OK R USDCTED EDOK LR 72.1-Civil

END OF DOCUMENT

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WEST’S OHIO RULES OF COURT

LOCAL RULES FOR THE UNITED STATES DISTRICT

COURT FOR THE NORTHERN DISTRICT OF OHIO

LOCAL CIVIL RULES

CHAPTER IX. SPECIAL PROCEEDINGS

Copr. © West Group 2003. No claim to orig. U.S. govt.

works.

Current with amendments received through 1/1/2003

RULE 72.2 ASSIGNMENT AND REFERRAL OF

MATTERS TO MAGISTRATE JUDGES

(a) General. The method for assignment of duties to

a Magistrate Judge and for the allocation of duties among the

several Magistrate Judges of this Court shall be made in

accordance with orders of the Court or by special designation

of a District Judge. ‘i

(b) Automatic Reference. The Clerk shall refer all

cases in the following categories to a Magistrate Judge for a

Report and Recommendation as provided in Local Rule

72.1(e):

(1) Petitions for review of administrative decisions

(including Social Security, Black Lung and Civil Service);

(2) Pro se petitions for habeas corpus filed under

28 U.S.C. § 2254, provided such petition has first been

reviewed by the Court pursuant to 28 U.S.C. § 1915(d) and

Rule 4 of the Rules Governing § 2254 Cases and a decision

has been made to require a response to the petition.

(3) Administrative Cases under Local Rule 16.2(a).

(See LCrR 5.2 and 35.1)

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{Effective January 1, 1992; amended effective June 9,

1992; amended and renumbered April 7, 1997.]

U.S. Dist. Ct. Rules N.D.Ohio, LR 72.2

OH R USDCTND LR 72.2

END OF DOCUMENT

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WEST’S NORTH CAROLINA RUEES OF COURT

LOCAL RULES OF PRACTICE AND PROCEDURE OF THE

UNITED STATES DISTRICT COURT FOR THE EASTERN

DISTRICT OF NORTH CAROLINA

[. CIVIL RULES

Copr. © West Group 2003. No claim to orig. U.S. govt.

works.

Current with amendments received through 9/1/2003.

RULE 72.2 MAGISTRATE JUDGES: ASSIGNMENTS

OF MATTERS

(a) Civil Cases. Upon filing, all civil cases shall be

assigned by the clerk to a magistrate judge for the conduct of

such discovery and pre-trial conferences as are necessary and

for the hearing and determination of all pre-trial procedural

and discovery motions, in accordance with Local Rule

72.4(b). Where designated by a judge, the magistrate judge

may conduct additional pre-trial conferences and hear motions

and perform the duties set forth in Local Rules 72.4(c),

72.4(d) and 72.4(e). Where the parties consent to trial and

disposition of a case by a certified magistrate judge under

Local Rule 73.1, such case shall, with the approval of the

judge to whom it was assigned at the time of filing, be

reassigned to a certified magistrate judge for the conduct of

all further proceedings and the entry of judgment.

(b) General. Nothing in these local rules shall

preclude a judge from reserving any proceeding for conduct

by a judge, rather than a magistrate judge. The judge,

moreover, may by order modify the method of assigning

proceedings to a magistrate judge as changing conditions may

warrant.

[Effective January 1, 2003.]

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U.S. Dist. Ct. Rules E.D.N.C., Civil Local Rule 72.2

NC R USDCTED CIV Local Rule 72.2

END OF DOCUMENT

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WEST’S INDIANA RULES OF COURT

LOCAL RULES OF THE UNITED STATES DISTRICT

~ COURT FOR THE NORTHERN DISTRICT OF INDIANA

Copr. © West Group 2002. No claim to orig. U:S. govt.

works.

Current with amendments received through 10/1/2002

L.R. 72.1 AUTHORITY OF UNITED STATES

MAGISTRATE JUDGES

Unless otherwise provided in these Rules, the term

“United States Magistrate Judge” shall include full-time

magistrate judges, part-time magistrate judges and magistrate

judges recaHed pursuant to 28 U.S.C. § 636(h).

(a) Duties under 28 U.S.C. §§ 636(a)(1) and (2).

Each United States magistrate judge of this court is authorized

to perform the duties prescribed by 28 U.S.C. §§ 636(a)(1)

and (2), and may exercise all the powers and duties conferred

upon United States magistrate judges by statutes of the United

States and the Federal Rules of Criminal Procedure which

include, but are not limited to, the following:

(1) Acceptance of criminal complaints and issuance

of arrest warrants or summonses. (Fed.R.Crim.P. 4.)

(2) Issuance of search warrants, including warrants

based upon oral or telephonic testimony. (Fed.R.Crim.P. 41 .)

(3) Conduct of initial appearance proceedings for

defendants, informing them of the charges against them and of

their rights, and imposing conditions of release.

(Fed.R.Crim.P. 5.)

(4) Conduct of initial proceedings upon the

appearance of an individual accused of an act of juvenile

delinquency. (18 U.S.C. § 5034.)

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(5) Appointment of attorneys for defendants who are

unable to afford or obtain counsel and approval of attorneys’

expense vouchers in appropriate cases. (18 U.S.C. § 3006A.)

(6) Appointment of counsel for persons subject to

revocation of probation, parole or supervised release (in which

case preference shall be given to previously appointed counsel

if such attorney is still available and willing to serve); persons

in custody as a material witness; persons seeking relief under

28 U.S.C. §§ 2241, 2254, or 2255 or 18 U.S.C. § 4245; or for

any person for whom the Sixth Amendment to the Constitution

requires the appointment of counsel or for whom, in a case in

which the person faces loss of liberty, any federal law requires

the appointment of counsel.

(7) Appointment of interpreters in cases initiated by

the United States. (28 U.S.C. §§ 1827 and 1828.)

(8) Direction of the payment of basic transportation

and subsistence expenses for defendants financially unable to

bear the costs of travel to required court appearances.

(18 U.S.C. § 4285.)

(9) Setting of bail for material witnesses.

(18 U.S.C. § 3149.¥

(10) Conduct of preliminary examinations.

(Fed.R.Crim.P. 5.1 and 18 U.S.C. § 3060.)

(11) Conduct of initial proceedings for defendants

charged with criminal offenses in other districts.

Fed.R.Crim.P. 40.)

(12) Conduct of detention hearings. (18 U.S.C.

§ 3142(f).)

(13) Conduct of preliminary hearings for the purpose

of determining whether there is probable cause to hold a

probationer for a revocation hearing. (Fed.R.Crim.P.

32.1(a)(1).)

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(14) Administration of oaths and taking of bail,

acknowledgements, affidavits and depositions. (28 U.S.C.

§ 636(a)(2).)

(15) Conduct of extradition proceedings. (18 U.S.C.

§ 3184.)

(16) Holding of individuals for security of the peace

and for good behavior. (50 U.S.C. § 23.)

(17) Discharge of indigent prisoners or persons

imprisoned for debt under process of execution issued bya

federal court. (18 U.S.C. § 3569 and 28 U.S.C. § 2007.)

(18) Issuance of attachments or orders to enforce

obedience of Internal Revenue Service summonses to produce

records or give testimony. (26 U.S.C. § 7604(b).)

(19) Issuance of administrative inspection warrants.

(In the Matter of Establishment Inspection of Gilbert and

Bennett Manufacturing Co., 589 F.2d 1335, 1340-41 [7th Cir.

1979].)

(20) Institution of proceedings against persons

violating certain civil rights statutes. (42 U.S.C. § 1987.)

(21) Settling or certification of the non-payment of

seamen’s wages. (46 U.S.C. § 603.)

(22) Enforcement of awards of foreign consuls in

differences between captains and crews of vessels of the

consul’s nation. (22 U.S.C. § 258(a).)

(23) Conduct of proceedings under the Federal Debt

Collection Act to the extent not inconsistent with the

Constitution and laws of the United States. (28 U.S.C.

§ 3008.)

(b) Disposition of Misdemeanor Cases--18 U.S.C.

§ 3401. A magistrate judge may:

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(1) Conduct the trial of persons accused of, and

sentence persons convicted of, misdemeanors, including petty

offenses committed within this district. Pursuant to 18 U.S.C.

§ 3401(a), each magistrate judge is hereby specially

designated to exercise the jurisdiction conferred by such

section with the written consent of the defendant as provided

in 18 U.S.C. § 3401(b); such trial shall be by jury in the case

of all Class A misdemeanors unless waived in writing by the

defendant;

(2) Direct the probation service of the court to

conduct a pre-sentence investigation in any misdemeanor case.

Any appeal from the judgment of the-magistrate judge shall be

as provided in 18 U.S.C. § 3402.

Matters--28 U.S.C. § 636(b)(1)(A). A magistrate judge may

hear and determine any procedural or discovery motion or

other motion or pre-trial matter in a civil or criminal case,

other than the motions which are specified in Local Rule

72.1(d) of these rules, in accordance with Fed. R. Civ. P.

72(a).

(d) Recommendation Regarding Case-Dispositive

Motions--28 U.S.C. § 636(b)(1)(B).

(1) A magistrate judge may submit to a district

judge of the court a report containing proposed findings of

fact and recommendations for disposition by the judge of the

following pre-trial motions in civil and criminal cases in

accordance with Fed.R.Civ.P. 72(b):

(A) Motions for injunctive relief, including

temporary restraining orders and preliminary and permanent

injunctions;

(B) Motions for judgment on the pleadings;

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(D) Motions to dismiss or permit the maintenance of

a Class action;

(E) Motions under Fed. R. Civ. P. 72(a);

(F) Motions to involuntarily dismiss an action;

(G) Motions for review of default judgments;

(H) Motions to dismiss or quash an indictment or

information made by a defendant;

(1) Motions to suppress evidence in a criminal case;

(J) Applications for post-trial relief made by

individuals convicted of criminal offenses;

(K) Petitions for judicial review of administrative

decisions regarding the granting of benefits to claimants under a,

the Social Security Act, and related statutes;

(L) Petitions for judicial review of an administrative

award or denial of licenses or similar privileges.

(2) Any objections to the magistrate judge’s report

and recommendation shall be filed with the clerk in

accordance with 28 U.S.C. § 636(b)(1), and failure to file

timely objections within the ten (10) day period set forth

therein shall constitute a waiver of subsequent review absent a

showing of good cause for such failure.

(3) A magistrate judge may determine any

preliminary matter and conduct any necessary evidentiary

hearing or other proceeding arising in the exercise of the

authority conferred by this subsection.

(e) Prisoner Cases under 28 U.S.C. § 2254 and

2255. A magistrate judge may perform any or all the duties

imposed upon a judge by the rules governing proceedings in

the United States District Court under §§ 2254 and 2255 of

B-12

Title 28, United States Code. In so doing, a magistrate judge

may issue any preliminary orders and conduct any necessary

evidentiary hearing or other appropriate proceeding and shall

submit to a district judge a report containing proposed

findings of fact and recommendations for disposition of the

petition by the judge. Any order disposing of the petition may

only be made by a judge. In the event no hearing is held by

the magistrate judge, the magistrate judge may, pursuant to

28 U.S.C. § 636(b)(3) acting as legal advisor to the district

judge, submit to the judge a proposed entry ruling on the

motion. If the district judge so directs, copies of such

proposed ruling need not be served on the parties of counsel.

(f) Prisoner Cases under 42 U.S.C. § 1983. A

magistrate judge may:

(1) | Review prisoner suits for deprivation of civil

rights arising out of conditions of confinement under § 1983

of Title 42, United States Code and issue any preliminary

orders and conduct any necessary evidentiary hearing or other

appropriate proceeding and shall submit to a judge a report

contaiuing proposed findings of fact and recommendations for

the disposition of the suits by the district judge. Any order

disposing of prisoner suits challenging the conditions of their

confinement may only be made by a district judge.

(2) Take on-site depositions, gather evidence,

conduct pretrial conferences, or serve as a mediator at a

holding facility in connection with civil rights suits filed by

prisoners contesting conditions of confinement under § 1983

of Title 42, United States Code.

(3) Conduct periodic reviews of proceedings to

ensure compliance with previous orders of the court regarding

conditions of confinement.

(4) Review prisoner correspondence.

(g) Special Master References--28 U.S.C.

§ 636(b)(2). A magistrate judge_may be designated by a

B-13

district judge to serve as a special master in appropriate civil

cases in accordance with 28 U.S.C. § 636(b)(2) and Fed. R.

Civ. P. 53. Upon the consent of the parties, a magistrate judge

may be designated by a judge to serve as a special master in

any civil case, notwithstanding the limitations of Fed. R. Civ.

P. 53(b).

(h) Conduct of Trials and Disposition of Civil Cases

Upon Consent of the Parties--28 U.S.C. § 636(c). Upon the

consent of the parties, a full-time magistrate judge is hereby

authorized and specially designated to conduct any or all

proceedings in any civil case which is filed in this court,

including the conduct of a jury or non-jury. trial, and may

order the entry of a final judgment, in accordance with

28 U.S.C. § 636(c) and Fed. R. Civ. P. 73. Pursuant to

28 U.S.C. § 636(c)(1), upon the consent of the parties,

pursuant to their specific written request, and upon

certification by the chief judge of this court that a full-time

magistrate judge is not reasonably available in accordance

with guidelines establrshed by the judicial council of the

circuit, any part-time magistrate judge who does not serve as a

full-time judicial officer but who meets the bar requirements

set forth in 28 U.S.C. § 631(b)(1), is hereby authorized and

specifically designated by this court to conduct any or all

proceedings in a civil case, whether jury or non jury. In the

course of conducting such proceedings, upon consent of the

parties, a magistrate judge may hear and determine any and all

pre-trial and post-trial motions which are filed by the parties,

including case-dispositive motions.

(1) Additional Duties--28 U.S.C. § 636(b)(3). A

magistrate judge of this court is also authorized to:

(1) Exercise general supervision of civil and

criminal calendars, including the handling of calendar and

status calls, and motions to expedite or pestpone the trial of

cases for the district judges;

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(2) Conduct preliminary and final pre-trial

conferences, status calls, settlement conferences, and related

pre-trial proceedings in civil cases, and prepare a pre-trial

order following the conclusion of the final pre-trial

conference;

(3) Conduct pre-trial conferences, omnibus hearings,

and related pre-trial proceedings in criminal cases;

(4) Conduct arraignments, accept not guilty pleas,

and order pre-sentence reports on defendants who signify the

desire to plead guilty. (A magistrate judge, however, may not

accept pleas of guilty or nolo contendere in cases outside the

jurisdiction specified in 18 U.S.C. § 3401);

(5) Receive grand jury returns in accordance with

Fed. R. Crim. P. 6(f);

(6) Accept waivers of indictment, pursuant to Fed.

R. Crim. P. 7(b);

(7) Issue subpoenas, writs of habeas corpus ad

testificandum or habeas corpus ad prosequendum, or other

orders necessary to obtain the presence of parties, witnesses or

evidence needed for court proceedings;

(8) Hear and determine motions by the government

to dismiss an indictment, information, or complaint without

prejudice to further proceedings;

(9) Conduct voir dire and select petit juries in civil

cases for the court;

(10) Accept petit jury verdicts in civil cases in the

absence or unavailability of a judge;

(11) Order the exoneration or forfeiture of bonds;

(12) Conduct proceedings for the collection of civil

penalties of not more than $200.00 assessed under the Federal

B-15 ;

Boat Safety Act of 1971 in accordance with 46 U.S.C.

§§ 4311(d), 12309;

(13) Conduct examinations of judgment debtors in

accordance with Fed. R. Civ. P. 69;

(14) Serve as eminent domain commissioner as

provided in Fed. R. Ctv. P. 71A;

(15) Perform the functions specified in 18 U.S.C.

§§ 4107, 4108 and 4109, regarding proceedings for

verification of consent by offenders to transfer to or from the

United States and the appointment of counsel therein;

(16) Serve as a member of this District’s Speedy

Trial Act Planning Group, including service as the reporter

(18 U.S.C. § 1368);

(17) Supervise proceedings on requests for letters

rogatory in civil and criminal cases upon special designation

by the district court as required under 28 U.S.C. § 1782(a);

(18) Hear and determine applications for admission to

practice before this District Court;

(19) Preside over naturalization ceremonies and

administer the oath of renunciation and allegiance required by

8 U.S.C § 1448(a). Following these ceremonies, a magistrate

judge shall submit to a judge of this court a report conta'ning

the names of applicants who took the oaths administered. (A

magistrate judge may not conduct final hearings or

preliminary examinations of petitioners or witnesses, as those

functions are expressly vested in naturalization examiners or

in judges by 8 U.S.C. §§ 1447(a) and (b)); and

(20) Conduct proceedings supplemental; and

(21) Perform any additional duty as is not contrary to

the law of this District and Circuit nor inconsistent with the

Constitution and laws of the United States.

B-16

(j) Assignment of Matters to Magistrate Judge. The

cases in which each magistrate judge is authorized to perform

the duties enumerated in these rules are those cases assigned

to the magistrate judge by rule or order of this court, or by

order or special designation of any district judge of this court.

[Adopted effective January 1, 1994; amended effective

October 2, 2000; January 1, 2002.]

U.S. Dist. Ct. Rules N.D.Ind., L.R. 72.1

IN R USDCTND L.R. 72.1

END OF DOCUMENT

B-17

WEST’S ALABAMA RULES OF COURT

LOCAL RULES FOR THE UNITED STATES DISTRICT

COURT FOR THE MIDDLE DISTRICT OF ALABAMA

PART 1. CIVIL RULES AND GENERAL PROVISIONS

IX. SPECIAL PROCEEDINGS

works.

Current with amendments received through 5-1-2003

LOCAL RULE 72.2 ASSIGNMENT OF DUTIES TO

MAGISTRATE JUDGES

The full-time Magistrate Judges of this court are

authorized to exercise all powers and perform all duties

authorized by 28 U.S.C. § 636(a) and (b), including all duties

not inconsistent with the Constitution and laws of the United

States.

[Effective January 1, 1998.]

U.S. Dist. Ct. Rules M.D.Ala., LR 72.2

AL R USDCTMD LR 72.2

END OF DOCUMENT

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WEST’S CALIFORNIA LOCAL COURT RULES

PAMPHLETS AND WEST’S CALIFORNIA RULES OF

COURT

LOCAL RULES OF PRACTICE FOR THE UNITED STATES

DISTRICT COURT FOR THE SOUTHERN DISTRICT OF

CALIFORNIA

CIVIL LOCAL RULES JURIES

works.

Current with amendments received through June 1, 2003

CIVIL RULE 72.2 ASSIGNMENT AND

DESIGNATION PROCEDURES

a. Order of Designation and Assignment. A matter

assigned to the magistrate judges either as a matter of course

by the clerk of the United States District Court or by an order

of special designation by a district judge of the court under

28 U.S.C. § 636(b) or (c), precisely stating the nature of the

matter, shall be assigned to a specific magistrate judge as

follows:

b. Civil Matters. The clerk shall assign civil

matters by lot as described in Civil Local Rule 40.1. In civil

matters where reference to a magistrate judge is dependent

upon the consent of the parties, such as trials, the district

judge may assign the matter to a particular magistrate judge

selected by the parties.

c. Assignment of Cases. [FN*] Upon filing, civil

cases shall be assigned by the clerk to a magistrate judge. The

magistrate judge shall hear and determine Civil Local Rule

72.1.b pretrial motions.

d. Designated Duties. [FN*]-Where designated by

a judge the magistrate judge may conduct additional pre-trial

B-19

conferences and hear motions and perform the duties set forth

in Civil Local Rule 72.1.c.

e. Prisoner Cases. [FN*] Each magistrate judge

shall be designated to perform the duties set forth in Civil

Local Rule 72.1.d.

f. Case Set Before Magistrate Judge. [FN*] Where

the parties consent to trial and disposition of a case by a

magistrate judge under Civil Local Rule 72.1.f of these rules,

such case shall set before the magistrate judge for the conduct

of all further proceedings and the entry of judgment.

g. Notice cf Hearing. A magistrate judge assigned

a matter shall set the time of hearing, notify all parties and

make any further necessary orders consistent with the

requirements of the local rules of court for the Southern

District.

h. Assignment of Proceedings. [FN*] Nothing in

these rules shall preclude the court, or a district judge from

reserving any proceedings for conduct by a district judge,

rather than a magistrate judge. The court, moreover, may by

general order modify the method of assigning proceedings to a

magistrate judge as changing conditions may warrant.

Eff. Aug. 18, 1997.

FN* Suggested title added by publisher.

U.S. Dist. Ct. Rules §.D.Cal., CivLR 72.2

CA R USDCTSD CivLR 72.2

END OF DOCUMENT

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WEST’S TEXAS RULES OF COURT

LOCAL COURT RULES OF THE UNITED STATES

DISTRICT COURT FOR THE WESTERN DISTRICT OF

TEXAS

SECTION I. CIVIL RULES -

works.

Current with amendments received through 2/1/2003

RULE CV-72. MAGISTRATE JUDGES, PRETRIAL

MATTERS

The magistrate judges of this Court are authorized to

perform all the duties allowed to magistrate judges under the

Federal Magistrates Act as amended in 28 United States Code

§ 636. The magistrate judges of this court are designated to

exercise civil jurisdiction under section 636(c)(1) upon

consent of the parties. Whenever applicable, the “Local Rules

of the Assignment of Duties to United States Magistrate

Judges” found at Appendix “C” herein, shall apply to

proceedings before the magistrate judges.

[Effective January 1, 1994.]

U.S. Dist. Ct. Rules W.D.Tex., Rule CV-72

TX R USDCTWD Rule CV-72

END OF DOCUMENT

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WEST’S ILLINOIS COURT RULES AND PROCEDURE--

VOLUMES I, II AND III

LOCAL RULES OF THE UNITED STATES DISTRICT

COURT FOR THE SOUTHERN'DISTRICT OF ILLINOIS

Current with amendments received through April 15, 2003

RULE 72.1 AUTHORITY OF UNITED STATES

MAGISTRATE JUDGES

(28 U.S.C. § 636, et seq.; 28 U.S.C. §§ 1331, 2241,

2254, 2255; 18 U.S.C. § 3401; 42 U.S.C. § 1983)

(a) Duties Under 28 U.S.C. § 636(a). Each United

States Magistrate Judge of this Court is authorized to perform

the duties prescribed by 28 U.S.C: § 636(a), and may:

(1) exercise all the powers and duties conferred or

imposed upon United States Commissioners by law and the

Federal Rules of Criminal Procedure;

(2) administer oaths and affirmations, impose

conditions of release under 18 U.S.C. § 3146, and take

acknowledgments, affidavits, and depositions; and

(3) conduct extradition proceedings in accordance

with 18 U.S.C. § 3184.

(b) Disposition of Misdemeanor Cases--18 U.S.C.

§ 3401. A Magistrate Judge may, either upon automatic

reference pursuant to Local Rule 72.2(a) or upon specific

reference by the assigned U.S. District Judge:

(1) — try persons accused of, and sentence persons

convicted of, misdemeanors committed within this District in

accordance with 18 U.S.C. § 3401;

B-22

(2) direct the probation service of the Court to

conduct a pre-sentence investigation in any misdemeanor

case; and

(3) conduct a jury trial in any misdemeanor case

where the defendant so requests and is entitled to trial by jury

under the Constitution and laws of the United States.

Matters--28 U.S.C. § 636(b)(1)(A). A Magistrate Judge may

hear and determine any procedural or discovery motion or

other pre-trial matter in a civil or criminal case, other than the

motions which are specified in sub-section 72.1(d), infra, of

these rules. See also Local Rule 72.2(a)(1).

(d) Recommendations Regarding Case-Dispositive

Motions--28 U.S.C. § 636(b)(1)(B).

(1) <A Magistrate Judge may submit to a District

Judge of the Court a report containing proposed findings of

fact and recommendations for disposition by the District

Judge of the following pre-trial motions in civil and criminal

cases:

(1) motions for injunctive relief, including

temporary restraining orders and preliminary and permanent

injunctions;

(ii) motions for judgment on the pleadings;

(ii1) motions for summary judgment;

(iv) motions to dismiss or permit the maintenance of

a Class action;

(v) motions to dismiss for failure to state a claim

upon which relief may be granted;

(vi) motions to involuntarily dismiss an action;

B-23

(vii) motions for review of default judgments;

(viii) motions to dismiss or quash an indictment or

information made by a defendant; and

(ix) motions to suppress evidence in a criminal case.

(2) A Magistrate Judge may determine any

preliminary matters and conduct any necessary evidentiary

hearing or other proceedings arising in the exercise of the

authority conferred by this sub-section.

(e) Prisoner Cases Under 28 U.S.C. §§ 1331, 2241,

2254 and 2255. A Magistrate Judge may perform any or all of

the duties imposed upon a District Judge by the rules

governing proceedings in the United States District Courts

under § 1331, § 2241, § 2254 and § 2255 of Title 28, United

States Code. In so doing, a Magistrate Judge may issue any

preliminary orders and conduct any necessary evidentiary

hearing or other appropriate proceedings and shall submit to a

District Judge a report containing proposed findings of fact

and recommendations for disposition of the petition by the

Judge. Any order disposing of the petition may only be made

by a Judge, unless the parties otherwise consent as provided

by 28 U.S.C. § 636(c) and Local Rule 72.1(h).

(f) Prisoner Cases Under 42 U.S.C. §.1983. A

Magistrate Judge may issue any preliminary orders and

conduct any necessary evidentiary hearing or other

appropriate proceedings and shall submit to a District Judge a

report containing proposed findings of fact and

recommendations for the disposition of petitions filed by

prisoners challenging the conditions of their confinement.

(g) | Special Master References. A Magistrate Judge

may be designated by a District Judge to serve as a special

master in appropriate civil cases in accordance with 28 U.S.C.

$ 636(b)(2) and Rule 53 of the Federal Rules of Civil

Procedure. Upon the consent of the parties, a Magistrate

Judge may be designated by a District Judge to serve as a

B-24

special master in any civil case, notwithstanding the

limitations of Rule 53(b) of the Federal Rules of Civil

Procedure.

(h) Conduct of Trials and Disposition of Civil Cases

Upon Consent of the Parties--28 U.S.C. § 636(c). Upon the

consent of the parties, a full-time Magistrate Judge may

conduct any or all proceedings in any civil case which 1s filed

in this Court, including the conduct of a jury or non jury trial,

and may order the entry of a final judgment, in accordance

with 28 U.S.C. § 636(c). In the course of conducting such

proceedings upon consent of the parties, a Magistrate Judge

may hear and determine any and all pre-trial and post-trial

motions which are filed by the parties, including case-

dispositive motions.

(i) Other Duties. A Magistrate Judge is also

authorized to:

(1) exercise general supervision of civil and

criminal calendars and conduct calendar and status calls on

behalf of a District Judge;

(2) conduct pre-trial conferences, settlement

conferences, omnibus hearings, and related pre-trial

proceedings in civil and criminal cases;

(3) conduct arraignments in criminal cases not

friable by the Magistrate Judge and take “not guilty” pleas in

such cases;

(4) receive grand jury returns in accordance with

Rule 6(f) of the Federal Rules of Criminal Procedure;

(S) accept waivers of indictment, pursuant to Rule

7(b) of the Federal Rules of Criminal Procedure;

(6) conduct voir dire and select civil petit juries for

the Court;

B-25

(7) accept petit jury verdicts in civil cases in the

absence of a District Judge;

(8) conduct necessary proceedings leading to the

potential revocation of probation;

(9) issue subpoenas, writs of habeas corpus ad

testificandum or habeas corpus ad prosequendum, or other

orders necessary to obtain the presence of parties, witnesses or

evidence needed for court proceedings;

(10) order the exoneration or forfeiture of bonds;

(11) conduct proceedings for the collection of civil

penalties of not more than $200 assessed in accordance with

46 U.S.C. § 4311(d) and 46 U.S.C. § 12309(c);

(12) conduct examinations of judgment debtors in

accordance with Rule 69 of the Federal Rules of Civil

Procedure;

(13) conduct proceedings for initial commitment of

narcotic addicts under Title III of the Narcotic Addict

Rehabilitation Act; and

(14) perform the functions specified in 18 U.S.C.

§§ 4107, 4108, and 4109, regarding proceedings for

verification of consent by offenders to transfer to or from the

United States and the appointment of counsel therein;

(15) conduct examination of claims for attorneys’

fees and related nontaxable expenses in accordance with Rule

54(d)(2)(D) of the Federal Rules of Civil Procedure.

Eff. March 1, 1999.

U.S. Dist. Ct. Rules S.D.IIl., Rule 72.1

IL R USDCTSD Rule 72.1

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.