1519
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF STETSON
OVER-ARMOR, INC., a California corporation, Plaintiff,
v.
COALITION AGAINST FOOTBALL CORRUPTION, INC., a Stetson
corporation, and
NELLIE KICKWOOD, individually, Defendants.
Appeal from the District Court, Middle District, Stetson County, Florida
The Hon. Elena K. Noah presiding.
DEFENDANT NELLIE KICKWOOD’S BRIEF
Case No.: 14-cv-1311-EKN-EJB
TABLE OF CONTENTS
Table of Authorities ............................................................................... ii
Preface .................................................................................................... 1
Questions Presented ............................................................................... 1
Statement of Facts ................................................................................... 2
Summary of Argument .......................................................................... 4
Statement of Jurisdiction......................................................................... 5
Argument ................................................................................................ 5
I. Attempted publication through posting the text of the service
documents on the Facebook© wall of a co-defendant, or
attaching those documents in a private Facebook© message to
Kickwood’s user profile, is not cohesive with either Federal or
Stetson Statute for service of process ........................................... 5
A. Plaintiff O-A did not conduct proper service of
process on Defendant Kickwood as is mandated by
both federal and state statute ................................... 6
B. O-A’s process server did not practice due diligence
in regard to Defendant Kickwood ........................... 8
C. Facebook© does not qualify as a means of process
for service ................................................................ 10
II.
Defendant Kickwood’s failure to consent to having this
matter tried before Magistrate Judge Benjamin renders the
final judgment entered void pursuant to Rule 60(b)(4)
because express consent is required by the plain language of
28 U.S.C. § 636(c), the Congressional intent behind §
636(c), and the plain language of Rule 73 ............................. 13
1
A. The final judgment entered is void because express
consent is required by the plain language of 28
U.S.C. § 636(c) ....................................................... 13
B. The final judgment entered is void because express
consent is required by the Congressional intent
behind 28 U.S.C. § 636(c) ...................................... 16
C. The final judgment entered is void because such
consent is required by the plain language of Rule
73 ............................................................................. 17
Conclusion .............................................................................................. 18
1
TABLE OF AUTHORITIES
United States Supreme Court Cases:
Griffin v. Oceanic Contractors, Inc.
458 U.S. 564 (1982)
Mullane v. Central Hanover Bank & Trust Co.,
339 U.S. 306 (1950)
Murphy Bros., Inc. v Michetti Pipe Stringing, Inc.
526 U.S. 344 (1999).
Pennoyer v. Neff
95 U.S. 714 (1877)
Roell v. Withrow
538 U.S. 580 (2003)
United States v. Ron Pair Enters., Inc.
489 U.S. 235 (1989)
United States Court of Appeals Cases:
Adams v. Heckler
794 F.2d 303 (7th Cir. 1986)
Fowler v. Jones
899 F.2d 1088 (11th Cir. 1990)
Hall v. Sharpe
812 F.2d 644 (11th Cir. 1987)
Harris v. Folk Constr. Co.
138 F.3d 365 (8th Cir. 1998)
Heft v. Moore
351 F.3d 278 (7th Cir. 2003)
Henry v. Tri-Services, Inc.
3 F.3d 931 (8th Cir. 1994)
N.Y. Chinese TV Programs, Inc. v. U.E. Enters., Inc.
996 F.2d 21 (2d Cir. 1993)
Reiter v. Honeywell, Inc.
104 F.3d 1071 (8th Cir. 1997)
United States v. Bryson
981 F.2d 720 (4th Cir. 1992)
Warren v. Leavitt
264 F. App'x 9 (D.C. Cir. 2008)
Whittlestone, Inc. v. Handi-Craft Co.
618 F.3d 970 (9th Cir. 2010)
ii
United States District Court Cases:
Fortunato v. Chase Bank USA N.A.,
2012 WL 2086950 (S.D.N.Y. 2012)
F.T.C v. PCCare247, Inc.,
2013 WL 841037 (S.D.N.Y. 2013)
Warren v. Thompson
224 F.R.D. 236 (D.D.C. 2004)
Statutory Provisions:
28 U.S.C. § 636(c)
STETSON STATUTE § 120.11
STETSON STATUTE § 120.21
STETSON STATUTE § 120.80
STETSON STATUTE § 120.81
Rules of Procedure:
FED. R. CIV. P. 4(e)
FED. R. CIV. P. 73
iii
PREFACE
In this Brief, Plaintiff OVER-ARMOR, INC. will be referred to as O-A. The
Defendant, COALITION AGAINST FOOTBALL CORRUPTION, INC., will be
referred to as CAFC. The Defendant, NELLIE KICKWOOD, will be referred to as
KICKWOOD. The Federation Internationale de Football Association will be
referred to as “FIFA.” The following citation formats will be used in this brief:
(Compl.)
– Complaint
(WS)
– Waiver of Service of Summons
(RS)
– Return of Service
(NC)
– Notice and Consent Regarding Magistrate Judge
(ODA)
– Order Directing Entry of Final Judgment
(OPD)
– Order Permitting Limited Discovery
** Note – No formal record for the above captioned case existed at the time this
brief was written.
QUESTIONS PRESENTED
I.
Whether Defendant Kickwood had been served pursuant to Federal Rule of
Civil Procedure 4(e)(1) and Stetson Statutes §§ 120.01 et seq. when
summons and complaint were posted to CAFC’s Facebook wall and
additionally attached to a private Facebook message to Defendant
Kickwood’s user profile?
1
II.
Whether, assuming service of process is deemed proper, the Magistrate’s
final judgment is rendered void under Federal Rule of Civil Procedure
60(b)(4) when Kickwood failed to consent to this matter being tried before a
Magistrate Judge?
STATEMENT OF FACTS
Plaintiff O-A is in the business of manufacturing and selling athletic apparel.
(Compl. ¶ 1). In 2014, FIFA announced it would be accepting bids for
manufacturers to furnish the jerseys and other athletic wear for international soccer
events FIFA held, including World Cup events. (Compl. ¶ 13). CAFC is a not-forprofit corporation whose mission is to “‘rid professional football from all forms of
corruption.’” (Compl. ¶ 15). Upholding its mission statement, CAFC aimed to
prepare and disseminate a detailed report regarding the bidding process between
manufacturers and FIFA. (Compl. ¶¶ 16-17). CAFC believed that corruption ran
rampant within said process. (Compl. ¶ 16).
In an attempt to complete this report, CAFC conducted a search on the
internet and various social media sites, including Facebook, seeking investigative
reporters whereby they discovered Defendant Kickwood. (Compl. ¶ 20). CAFC
and Kickwood reached an agreement for Kickwood to investigate the clothing
bidding process by FIFA and finalize a report for CAFC. (Compl. ¶ 21). On
September 1, 2014, after Kickwood completed the report, CAFC posted the
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completed report to their company’s Facebook “wall.” (Compl. ¶ 25). O-A filed
suit and requested a waiver of service of summons on October 6, 2014. (WS).
O-A hired a process server who was tasked with obtaining service of the
summons and complaint on Kickwood. (RS, 1). The process server located a
Facebook page utilizing the name “KickOverArmorA$$”, which was registered to
kickwood2@kmail.com. (RS, 1). The process server used the email address,
kickwood2@kmail.com, in an attempt to contact Kickwood. (RS, 1). Additionally,
the email response to the process server contained a physical address, which the
server then visited on five separate occasions over a two-week period. (RS, 1). On
one such occasion, a 16-year-old minor by the name of C.J. Kickwood,
Kickwood’s child, stated that Kickwood did not reside at that address. (RS, 1).
Personal service on Kickwood was not completed. (RS, 1).
Following the failed attempts at service, the process server posted the
complete text of the summons and complaint to the Facebook “wall” of CAFC.
(RS, 1). The process server also sent a private message containing an attached
portable document format (PDF) file of the documents to Kickwood’s alleged
Facebook account at the user profile “KickOverArmorA$$”. (RS, 1).
A notice and consent to utilize a magistrate judge was executed by both O-A
and CAFC. (NC, 2). The parties listed were O-A and CAFC. (NC, 2). Kickwood
was not present. (NC, 2). The magistrate conducted a bench trial and on June 14,
3
2015, entered an order whereby CAFC and Kickwood were found jointly and
severally liable. (ODA, 1). As a result, Kickwood filed a Motion to Vacate the
judgment. (OPD, 1).
SUMMARY OF ARGUMENT
The publication of the service documents to CAFC’s Facebook “wall” and
via personal message to a profile associated with Kickwood does not constitute a
permissible manner of service of process as is mandated both by federal and state
law. The process server did not exercise any form of diligence by attempting to
locate a new address, phone number, or other manner of communication by which
service of process could have been effectuated. Additionally, the process server did
not follow Stetson State law, which dictates publication in a newspaper for four
consecutive weeks is necessary. If such a manner of publication is unavailable,
Stetson law requires posting notice in three unique and noticeable locations within
the county that the court is located in constitutes as a form of service. Furthermore,
one of these locations must the front door of the courthouse. The process server for
O-A did not publish in a newspaper for 4 weeks consecutively, he did not post at
the courthouse, nor did they post in any unique or noticeable locations within the
county where the court is located.
Facebook does not qualify as a viable means for service of process. There
was no indication that the profile identified as KickOverArmorA$$ was in fact
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Kickwood, nor was there any evidence that Kickwood in fact received the message
from the process server containing the documents. The posting of the documents
was done to the CAFC’s own Facebook wall and not to the wall alleged to be
Kickwood’s. There is no indication that Kickwood read or received that
information from the process server that was posted to the Facebook wall of the
CAFC or the personal message.
Kickwood did not consent to have this matter tried before a Magistrate. The
United States Code and Federal Rules of Civil Procedure require consent as a
prerequisite to Magistrate authority. Applicable case law, statutory analysis, and
Congressional intent all evidence a clear purpose that valid, unambiguous consent
be given. Kickwood gave no such consent in this matter. Furthermore, Kickwood
participated in no conduct that gives rise to an implied consent.
STATEMENT OF JURISDICTION
This Court has jurisdiction over this matter under 28 U.S.C. § 1332(a)
because Plaintiff and Defendant are citizens of different states—Plaintiff is a
resident of California and Defendants are residents of Stetson—and the amount in
controversy exceeds $75,000, exclusive of interests and costs. Plaintiff is seeking
to recover $500 million from Defendant.
ARGUMENT
I.
Attempted publication through posting the text of the service
documents on the Facebook wall of a co-defendant, or attaching
5
those documents in a private Facebook message to Kickwood’s user
profile, is not cohesive with either Federal or Stetson Statute for
service of process.
A. Plaintiff O-A did not conduct service of process on Defendant Kickwood in
any manner mandated by either federal and state statute.
Personal service against a defendant is necessary if the court processing the
matter has personal jurisdiction over the defendant. Murphy Bros., Inc. v Michetti
Pipe Stringing, Inc., 526 U.S. 344, 350 (1999). The service of process concept was
tangled with the concept of personal jurisdiction dating back to the nineteenth
century, culminating in Pennoyer v. Neff, where the United States Supreme Court
required that personal service in the forum state was necessary in all proceedings.
Pennoyer v. Neff, 95 U.S. 714, 733-34 (1877). The Court also held in Mullane v.
Central Hanover Bank & Trust Co. that “[a]n elementary and fundamental
requirement for due process in any proceeding which is to be accorded finality is
notice reasonably calculated under all circumstances as to appraise interested
parties of the pendency of the action and afford them an opportunity to present
their objections.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306,
314 (1950).
The Federal Rules of Civil Procedure, as well as Stetson State Statues,
specifically lay out the acceptable manners with which service of process may be
executed. Pursuant to Rule 4(e), service of a person may be conducted by:
6
(1) following state law for serving a summons in an action brought in
courts of general jurisdiction in the state where the district court is
located or where service is made; or
(2) doing any of the following:
(A) delivering a copy of the summons and of the complaint to the
individual personally;
(B) leaving a copy of each at the individual's dwelling or usual place
of abode with someone of suitable age and discretion who resides
there; or
(C) delivering a copy of each to an agent authorized by appointment
or by law to receive service of process.
FED. R. CIV. P. 4(e).
Within the State of Stetson, the statute holds that notices of action “shall be
published once during each week for four consecutive weeks . . . in some
newspaper published in the county where the court is located.” STETSON STATUTES
§ 120.80(1). Additionally, proof of conforming publication is necessary to satisfy
compliance with the law. Id. § 120.80(2). Should no newspaper exist in the county
where the court is located, “three copies of the notice shall be posted at least 28
days before the return day . . . in three different and conspicuous places in such
county, one of which shall be at the front door of the courthouse in said county.”
STETSON STATUTES § 120.81. It is also necessary to note that Stetson law defines
publication as “publication of the notice of action as provided for in ss. 120.80 and
120.81.” STETSON STATUTES § 120.11(2)(c).
Stetson statutes are clear in the manner in which an individual is to be
served. The federal rules dictate that state law is to be followed. O-A’s process
7
server never left a copy of the Summons and Complaint at the address that they
had available to them, even after noting that Kickwood’s child, C.J. Kickwood,
resided at the dwelling. Regardless of the minor indicating that Kickwood did not
reside there, leaving a copy of the Summons and Complaint would have been
diligent as the minor child still qualified as “someone of a suitable age” with whom
the paperwork could have been left. FED. R. CIV. P. 4(e)(B).
Plaintiff O-A also failed to publish the paperwork for the requisite number
of weeks pursuant to Stetson Statute section120.80. The process server gave no
indication in his Return of Service that any such publication had been performed or
even attempted. The process server also did not indicate that the three copies of the
notice were posted in any unique or obvious locations in the county of this court
within their Return of Service upon Kickwood.
Based off of the above facts, as well as admittance by O-A, personal service
of Defendant Kickwood with the Summons and Complaint never occurred. O-A
also failed to effectuate service through publication.
B. O-A’s process server did not practice due diligence in regard to Defendant
Kickwood.
Stetson Statute section 120.21 dictates that in order for service of process to
be effectuated on an individual, specifically via publication, a showing of diligence
in searching to discover the “name and residence of a person” is required. STETSON
STATUTES § 120.21. It is also necessary to show whether the residence is known or
8
unknown. STETSON STATUTES § 120.21(3)(a). Stetson law additionally dictates that
in the sworn statement regarding service of process by publication, the plaintiff
shall show whether the person on whom service is being attempted is “conceal[ing]
him or herself so that process cannot be personally served . . .” STETSON STATUTES
§120.21(3)(c).
In the present case, the process server searched and found what he or she
believed to be Defendant Kickwood’s Facebook page. This Facebook page was
registered to an email address by which the process server sent a contact email,
which then sent back a response with a physical address for Kickwood. The
process server visited that address on five different occasions over a two-week
period of time. There was a physical being at that residence, C.J. Kickwood, with
whom service of process could have been executed, yet was not. There was no
indication that the process server attempted to locate a potential different
workplace for Kickwood, contact Kickwood via phone, locate other addresses,
investigate motor vehicle records, search tax documents, or conduct any further
research in an attempt to serve Kickwood the necessary documentation regarding
the case at hand. The process server only states he searched into Kickwood’s name
and residence, ascertained primarily from Facebook. Additionally, there is no
indication that the process server noted Kickwood as “conceal[ing] him or herself
9
so that process cannot be personally served . . . .” STETSON STATUTES
§120.11(2)(c).
Here, due diligence by the process server on behalf of Plaintiff O-A was not
conducted on Defendant Kickwood.
C. Facebook does not qualify as a means of process for service.
The Supreme Court in Mullane states that there was a specific set of
circumstances with which other forms of service could potentially be allowed but
that those circumstances depended on whether that service would be “substantially
less likely to bring home notice,” as opposed to which ever methods are available
to a plaintiff. Mullane, 339 U.S at 315. Recently, there have been several United
States courts that have considered the use of social media as a means of service of
process. None of these courts, however, have definitively stated that such use of a
social media platform constitutes viable application of service by publication.
In Fortunato v. Chase Bank USA, N.A. the Southern District of New York
pondered the use of Facebook as a means of service of process on a third-party
defendant. Fortunato v. Chase Bank USA, N.A, No. 11 Civ. 6608 (JFK), 2012 WL
2086950, at *1 (S.D.N.Y. June 7, 2012). The Plaintiff in this case claimed that
there was fraudulent use of her credit card and that collection proceedings initiated
by the Defendant Chase were a breach of the Fair Credit Reporting Act. Id. The
Plaintiff began proceedings against the Defendant after they had begun collecting
10
from her wages. Id. Defendant Chase then sought to implead the Plaintiff’s
daughter, whom they believed may have used the card fraudulently, and attempted
to serve the summons and complaint on her. Id. Defendant hired an investigator
who was unable to locate a viable address for her. Id. After pleading with the court
to use social media for service of process and being denied, a second investigator
was hired and found the daughter’s Facebook profile. Id. at *2. This profile noted a
personal email address and the location of the daughter. Id. Defendant Chase then
served process via Facebook, email and personally on the Plaintiff. Id. The court
disagreed with Defendant Chase’s belief that service of process by these methods
was reasonable. Id. The court was skeptical that proper confirmation existed to
“give the Court a degree of certainty that the Facebook profile its investigator
located is in fact maintained by [the third-party defendant] or that the email address
listed on the Facebook profile is operational and accessed . . . .” Id.
In F.T.C. v. PCCare247 Inc. the Federal Trade Commission (FTC) sought to
use Facebook and email as a means of serving the defendants that were located in
India. F.T.C. v. PCCare247 Inc., No. 12 Civ. 7189(PAE), 2013 WL 841037, at *1
(S.D.N.Y. March 7, 2013). This action by the FTC was the result of an
investigation into a call center scheme where Americans were being tricked into
spending money to fix unconfirmed computer issues. Id. A process server had
personally delivered the requisite documents to the Indian defendants, but when
11
the defendants failed to comply with the preliminary injunction terms, the FTC
sought to serve the Indian defendants via Facebook. Id. at *5. The FTC wished to
send a personal message to each of the defendants’ Facebook accounts with the
necessary documents. Id. Here, as opposed to Fortunato, there were several factors
that weighed in favor of the use of Facebook as a means of service. At the start, the
defendants all had received knowledge that the lawsuit was pending. Id. The court
here also noted that “[w]here defendants run an online business, communicate with
customers via email, and advertise their business on their Facebook pages, service
by email and Facebook together presents a means highly likely to reach the
defendants.” Id. at *6.
As was the case in Fortunato, there exists skepticism in the present case as
to the level of confidence that can be given that the Facebook profile the process
server located is in fact monitored, or that the email address listed on the Facebook
profile is utilized by Defendant Kickwood. Any individual person may create and
generate a Facebook profile with false information. O-A has given no indication
that the profile is in fact that of Kickwood, save only the fact that the name of
Nellie Kickwood came up as having the profile name of “KickOverArmorA$$”.
There is no indication of any pictures matched that of Kickwood, any friends that
could have corroborated whether this was in fact Kickwood’s profile were
contacted, nor was there any mention that the location of the profile was indicative
12
of that matching the location the process server received via email. Additionally,
Kickwood is distinguishable from PCCare247 because the defendants there
already knew that a case had been initiated against them, there was substantial
evidence pointing to the fact that the defendants had utilized email in accordance
with their business, and the defendants were friends with one another on their own
respective Facebook pages. There are no such factors regarding Kickwood.
As a result of the various unknowns connected to Defendant Kickwood’s
case, Facebook does not qualify as a means of service of process.
III. Defendant Kickwood’s failure to consent to having this matter tried before
Magistrate Judge Benjamin renders the final judgment entered void
pursuant to Rule 60(b)(4) because express consent is required by the plain
language of 28 U.S.C. § 636(c), the Congressional intent behind § 636(c),
and the plain language of Rule 73.
A. The final judgment entered is void because express consent is required by
the plain language of 28 U.S.C. § 636(c).
The judgment against Kickwood is void because the plain language of §
636(c) requires the “consent of the parties” as a necessary precondition to a
Magistrate Judge conducting “any or all proceedings in a jury or nonjury civil
matter and order the entry of judgment in the case.” 28 U.S.C. § 636(c).
The United States Supreme Court has consistently held that the plain
meaning of legislation should be conclusive, except in the “rare cases [in which]
the literal application of a statute will produce a result demonstrably at odds with
13
the intentions of its drafters.” United States v. Ron Pair Enters., Inc., 489 U.S. 235,
242 (1989) (quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571
(1982)). Interpreting § 636(c) according to the plain meaning of the language used
would not only forego a result at odds with the intention of Congress, it would
actually uphold that intent. See Part b, infra.
Courts across the country have consistently recognized that § 636(c) requires
a “clear and unambiguous statement in the record of the affected parties' consent to
the magistrate judge's jurisdiction.” Harris v. Folk Constr. Co., 138 F.3d 365, 369
(8th Cir. 1998). Valid, express consent has been recognized as the “linchpin of the
constitutionality” concerning the District Court’s ability to refer a case to a
magistrate. Adams v. Heckler, 794 F.2d 303, 307 (7th Cir. 1986). Absent proper
consent, the referral of a matter to a magistrate would violate a nonconsenting
party’s constitutional right to have the controversy heard by an Article III judge as
opposed to an Article I judge.
The Court of Appeals for the Eighth Circuit held in Henry v. Tri-Services,
Inc. that a magistrate lacked the authority to enter final judgment because the court
did not obtain the clear and unambiguous consent of co-defendant, Tri–Services,
despite the fact that it had received such consent from the plaintiff and other codefendant. Henry v. Tri-Services, Inc., 33 F.3d 931, 933 (8th Cir. 1994). In that
case Tri-Services had not yet entered an appearance when the other parties agreed
14
to have final judgment determined by a magistrate judge. Id. at 932. The court also
found that Tri–Services did not ratify the agreement to have the matter heard by a
magistrate. Id. at 933. This holding follows the strict interpretation of the statute by
other circuits that “[e]xplicit, voluntary consent is crucial” to the procedure of
referring a matter to a magistrate. Hall v. Sharpe, 812 F.2d 644, 647 (11th Cir.
1987).
The Supreme Court has held that consent can be implied from the actions of
the parties. Roell v. Withrow, 538 U.S. 580, 586 (2003). In Roell, the parties made
a choice to appear in front of the Magistrate Judge, without reservations, with full
knowledge of their right to refuse. Id. The Court determined that a rigid adherence
to the statutory language was not required, and that the parties consent was “clearly
implied.” Id. In the wake of Roell, however, lower courts have still been hesitant to
allow consent that is implied. See e.g., United States v. Bryson, 981 F.2d 720, 723
(4th Cir. 1992) (finding consent to proceed before a magistrate judge must be clear,
unequivocal, and unambiguous); Fowler v. Jones, 899 F.2d 1088, 1092 (11th Cir.
1990) (finding express consent of parties required for magistrate to preside in §
636(c) referral); Hall, 812 F.2d at 647 (finding consent cannot be inferred from
conduct of parties); N.Y. Chinese TV Programs, Inc. v. U.E. Enters., Inc., 996 F.2d
21, 24 (2d Cir. 1993) (finding an “implied” waiver would not adequately protect
the constitutional right to be heard by an Article III judge).
15
Here, Kickwood cannot be held to have consented to the referral to the
Magistrate Judge because he made no appearance before the Magistrate.
B. The final judgment entered is void because express consent is required by
the Congressional intent behind 28 U.S.C. § 636(c)
The judgment against Kickwood is void because the Congressional intent in
enacting § 636(c) requires “consent by the parties” as a precondition to referral of a
case to a Magistrate Judge. There is no need to look further than other parts of the
statute to see that Congress was clear in its intent. By Congress creating
nonconsensual referrals under § 636(b)(1), it can be seen that Congress was
deliberate in requiring consent for some acts of the magistrate judge and not others.
See generally Roell v. Withrow, 538 U.S. 580.
Furthermore, a party’s silence cannot be held to be a waiver of an objection
to having a matter heard before a magistrate. The requirement remains that parties
must give express and unambiguous consent to magistrate authority, and the
concept of a party arriving before a magistrate vis-à-vis waiver “does violence” to
the express consent requirement articulated by Congress. Reiter v. Honeywell, Inc.,
104 F.3d 1071, 1074 (8th Cir. 1997) (quoting Hall, 812 F.2d at 649).
Even if the Court were to construe this language as ambiguous, in cases
where the statutory language is unclear, it is the intention of the drafters, rather
than the strict language, that controls. Ron Pair Enters., Inc., 489 U.S. at 242.
16
There is no dissonance between the plain language and the intent of Congress in
this case.
C. The final judgment entered is void because such consent is required by the
plain language of Rule 73.
The final judgment of the magistrate judge is also void because of the plain
language contained in Rule 73. The Federal Rules of Civil Procedure and § 636(c)
work hand-in-hand. Rule 73 codifies the statutory requirement as interpreted by the
majority of courts, going one step further to point out that the consent of “all
parties” is required. FED. R. CIV. P. 73.
A court’s interpretation of the Federal Rules of Civil Procedure begins in the
same manner as it would in interpreting a statute—with the relevant rule's plain
meaning. Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 973 (9th Cir. 2010).
With the plain meaning foundation laid, courts come to the same conclusion under
the plain language of Rule 73 as they do under §636(c), that parties must
voluntarily consent to the referral of a matter to a magistrate. The interpretation
under the Federal Rules, however, follows the Supreme Court’s decision in Roell
by allowing a party to consent by implication. See Heft v. Moore, 351 F.3d 278,
281 (7th Cir. 2003) (finding consent can also be inferred from a party's conduct
during litigation); Warren v. Thompson, 224 F.R.D. 236, 238 (D.D.C. 2004) aff'd
sub nom. Warren v. Leavitt, 264 F. App'x 9 (D.C. Cir. 2008) (finding party's
17
consent to assignment of case to United States Magistrate Judge could be inferred
from party's trial counsel's participation in most of pretrial proceedings).
In addition to the United States Code, the Federal Rules also require that the
consent of all parties is required to refer a matter to a magistrate. As no consent
was given by Kickwood, the judgment must be vacated.
CONCLUSION
For the reasons stated above, the final judgment entered by the district court
is void and should be vacated.
Respectfully submitted,
Counsel for Defendant Kickwood
PRINCE & SANTANA, LLP
1050 Huntington Avenue
Paul Center, Stetson 33604
Tel. (381) 867-5309
Fax. (381) 867-5310
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