- This article was first published on Law.com
Network - April 30, 2014
An initial issue in any federal action is whether to consent to
Magistrate Judge jurisdiction pursuant to 28 U.S.C. §636(c)(1).
This statute provides that “upon the consent of the parties, a
full-time United States magistrate judge … may conduct any or
all proceedings in a jury or nonjury civil matter and order the
entry of judgment…” The Magistrate Judge’s rulings are final
and appealable to the applicable United States Court of
Appeals. 28 U.S.C. § 636(c)(3).
Whether to consent to Magistrate Judge jurisdiction is a
particularly significant decision in a class action. While the
consent of the parties must be unanimous, the putative class
representatives can consent on behalf of the class. It has been
held that unnamed class members do not have “party” status
within the meaning of §636(c)(1) and their consent is not
v. Persels & Assocs., LLC, 729 F.3d 1309 (11th Cir.
v. Volkswagen AG, 681 F.3d 170, 180 (3d Cir. 2012); Williams
v. General Electric Capital Auto Lease, Inc., 159 F.3d
266, 269 (7th Cir.
There is a variety of reasons why one might agree to Magistrate
Judge jurisdiction. One practical reason is the possibility of
getting to trial more quickly. A second may be the parties’
joint belief that the assigned district court judge is not the
best choice to handle that particular case. Regardless of the
practicalities, one should be mindful of a potential risk to all
parties from consenting to Magistrate Judge jurisdiction in a
class action. That risk concerns the potential that later in
the proceedings after a settlement has been hammered out a
would-be intervenor or an objector might try to collaterally
challenge the consent. The challenge might be couched in terms
of absence of subject matter jurisdiction.
After obtaining a preliminary approval order conditionally
approving the settlement and serving class notice, an objector
may attempt to intervene into the class action pursuant to FRCP
24(a) and attain “party” status. Williams,
159 F.3d at 269-70; Dewey,
681 F.3d at 180; Day,
729 F.3d at 1316. If successful, the intervenor could then
attempt to withhold his consent to magistrate jurisdiction and
demand the assignment of an Article III district court judge.
The argument would be that, without the intervenor-objector’s
consent, the Magistrate Judge lacks jurisdiction to enter an
appealable final judgment. Jaliwala
v. United States, 945 F.2d 221, 223 (7th Cir.
1991). There is an open question as to the extent an intervenor
can challenge the pre-intervention orders of a magistrate who
acted with the consent of the original parties. See,
York Chinese TV Programs, Inc. v. U.E. Enterprises, 996
F.2d 21, 25 (2d Cir. 1993).
The Williams, Dewey and Day cases
also recognize that non-intervening class members might try to
collaterally attack the parties’ decision to consent to
“Unnamed class member[s] could try to show in a collateral
attack that the decision to proceed before a magistrate judge
was a matter on which there was a potential … significant
intra-class conflict and that the notice the absentee[s]
received was inadequate to inform [them] of the conflict.”
729 F.3d at 1321.
Were such a collateral attack successful, the settlement
approval might have to be vacated due to the purported
intra-class conflict. Practically speaking, it is difficult to
imagine a scenario in which a class representative’s consent to
a Magistrate Judge is aptly subject to such collateral attack.
Nevertheless, whether raised by an intervenor or collaterally by
an objector, a successful attack on Magistrate Judge
jurisdiction could be costly. The parties may be required to
incur the cost of additional class notice to advise the class of
the new judge and dates. The lack of consent could negate the
Magistrate Judge’s jurisdiction and, possibly, the initial
preliminary approval ruling which permitted class notice. The
objector’s or intervenor’s counsel likely would seek to modify
the settlement agreement claiming the lack of adequate class
representation which is a requirement for intervention as of
right per FRCP 24. He would also want to demonstrate additional
benefits to the class to justify a fee. In addition to costs
and delay, class counsel could incur the ire of class members
frustrated by further delay.
Although successfully moving for intervention into a
preliminarily-approved class action, or collaterally attacking
the consent is a significant hurdle, the potential disruption to
the parties’ desire to resolve the case can be costly and
time-consuming. The foregoing risks must be carefully weighed
before consenting to Magistrate Judge jurisdiction.
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