2006 WL 1042060 (C.A.10)

 

For opinion see 204 Fed.Appx. 728

 

United States Court of Appeals, Tenth Circuit.

 

THE SOCIETY OF LLOYD'S, Plaintiff/Appellee,

v.

Wallace R. BENNETT, Defendant/Appellant;

Grant R. Caldwell, Calvin P. Gaddis, David L. Gillette, Stephen M. Harmsen, Kelly C. Harmsen, James R. Kruse, Edward W. Muir, and Kent B. Petersen, Defendants.

 

No. 05-4208.

 

March 9, 2006.

 

On Appeal from the United States District Court for the District of Utah, Central Division

The Honorable Tena Campbell, District Judge District Court No. 2:02CV0204TC

 

Appellee's Brief

 

Michael N. Zundel, James A. Boevers, Prince, Yeates & Geldzahler, City Centre I, Suite 900, 175 East 400 South, Salt Lake City, UT 84111, (801) 524-1000, Facsimile: (801) 524-1098, Attorneys for Plaintiff/Appellee, The Society of Lloyd's.

 

*i CORPORATE DISCLOSURE STATEMENT

 

Plaintiff/Appellee The Society of Lloyd's (ÒLloyd'sÓ) has no parent corporation and there are no publicly held corporations that own 10% or more of its stock.

 

*ii TABLE OF CONTENTS

 

CORPORATE DISCLOSURE STATEMENT ... i

 

TABLE OF AUTHORITIES ... iv

 

STATEMENT OF RELATED APPEALS ... vi

 

STATEMENT OF JURISDICTION ... 1

 

STATEMENT OF ISSUES ... 2

 

STATEMENT OF THE CASE AND STATEMENT OF FACTS ... 3

 

SUMMARY OF ARGUMENT ... 6

 

ARGUMENT ... 7

 

I. THIS COURT LACKS APPELLATE SUBJECT MATTER JURISDICTION OVER THIS APPEAL FROM THE DISTRICT COURT'S NON-FINAL JULY 5, 2005 ORDER ... 7

 

Standard of Review ... 7

 

II. 28 U.S.C. ¤¤ 636(b)(1)(A) AND 636(b)(3) GAVE THE MAGISTRATE JUDGE THE AUTHORITY TO DECIDE ALL NONDISPOSITIVE POSTJUDGMENT ISSUES, INCLUDING EXTENSION OF THE MORGAN STANLEY WRIT OF GARNISHMENT ... 8

 

Standard of Review ... 8

 

III. EVEN IF THE EXTENSION OF THE MORGAN STANLEY WRIT OF GARNISHMENT WAS DISPOSITIVE, THE MAGISTRATE JUDGE HAD THE AUTHORITY TO GRANT THE EXTENSION UNDER 28 U.S.C. ¤ 636(c)(1), BASED UPON THE PARTIES' CONSENT ... 12

 

Standard of Review ... 12

 

*iii CONCLUSION ... 13 CERTIFICATE OF SERVICE AND DIGITAL SUBMISSIONS ... 14

 

*iv TABLE OF AUTHORITIES

 

 

FEDERAL CASES

 

Bache Halsey Stuart Shields Inc. v. Killop, 589 F. Supp. 390 (E.D. Mich. 1984) ... 9, 10

 

Clark v. Poulton, 963 F.2d 1361 (10th Cir.1992), cert. den., 506 U.S. 1014 (1992) ... 12

 

Colorado Bldg. and Constr. Trades Council v. B.B. Andersen Constr. Co., Inc., 879 F.2d 809 (10th Cir. 1999) ... 9

 

Conetta v. National Hair Care Centers, Inc., 236 F.3d 67 (1st Cir. 2001) ... 9

 

FDIC v. LeGrand, 43 F.3d 163 (5th Cir. 1995) ... 9, 10

 

Fuddruckers, Inc. v. KCOB I, LLC, 31 F. Supp. 2d 1274 (D. Kan. 1998) ... 10

 

The Society of Lloyd's v. Reinhart, 402 F.3d 982 (10th Cir. 2005), cert. den., 126 S.Ct. 366 (2005) ... vi, 3

 

Thiry v. Carlson, 78 F.3d 1491 (10th Cir. 1996), cert. den., 519 U.S. 821 (1996). 8, 12

 

U.S. v. Flaherty, 668 F.2d 566 (1st Cir. 1981) ... 8, 9

 

FEDERAL STATUTES

 

28 U.S.C. ¤ 1291 ... 2, 6, 7

 

28 U.S.C. ¤ 1332(a)(2) ... 1

 

28 U.S.C. ¤ 636(b)(1)(A) ... ii, 2, 3, 6, 8, 9, 10, 11

 

28 U.S.C. ¤ 636(b)(1)(B) ... 5, 10, 11

 

28 U.S.C. 636(b)(3) ... ii, 2, 6, 8, 9, 10

 

28 U.S.C. ¤ 636(c)(1) ... ii, 3, 7, 12

 

*v FEDERAL RULES

 

Fed. R. Civ. P. 59(e) ... 2, 6

 

Fed. R. Civ. P. 69 ... 10

 

Fed. R. Civ. P. 72 ... 4

 

D. U. Civ. R. 72-2 ... 9

 

STATE RULES

 

Utah R. Civ. P. 64D ... 10, 12

 

*vi STATEMENT OF RELATED APPEALS

 

Appeals by defendants Caldwell, Gaddis,[FN1] Gillette, Kruse, Muir and Petersen, by defendants Stephen M. and Kelly C. Harmsen (Òthe HarmsensÓ) and by defendant/appellant here Bennett (ÒBennettÓ) from Lloyd's Judgments against them in the District of Utah were all consolidated for procedural purposes (Case Nos. 03-4065, 4082, 4094, 4183 and 04-4142). These appeals were also consolidated for procedural purposes with an appeal from similar Lloyd's Judgments against other defendants in the District of New Mexico ( The Society of Lloyd's v. Richard A. Reinhart, et al., Case No. 02-2301). In The Society of Lloyd's v. Reinhart, 402 F.3d 982 (10th Cir. 2005), cert. den., 126 S.Ct. 366 (2005), this Court affirmed the District of Utah and District of New Mexico Judgments (with the exception of the post-judgment interest rate on the District of Utah Judgments, as to which the Court ruled in favor of the Harmsens).

 

    FN1. 'Defendant Gaddis dismissed his appeal.

 

The Harmsens currently have a pending appeal from a post-judgment ruling by the District Court (Case No. 05-4069). This Court previously dismissed another Bennett appeal in this action (Case No. 04-4004), because the orders Bennett appealed from there were non-final orders of the magistrate judge.

 

This Brief addresses Bennett's appeal from a non final post-judgment garnishment ruling by the District Court filed on July 5, 2005. Bennett's appeal in Case No. 05-4239, which has now been fully briefed, is from this Court's final Garnishee Judgment filed on May 24, 2005 and entered on May 25, 2005, and from the *1 August 26, 2005 Order denying Bennett's May 24, 2005 motion to set aside the Garnishee Judgment. The issues in the two appeals are the same, with the exception of the issue of this Court's appellate subject matter jurisdiction over the present appeal (Case No. 054208).

 

STATEMENT OF JURISDICTION

 

The District Court's subject matter jurisdiction is based on diversity of citizenship under 28 U.S.C. ¤ 1332(a)(2). Lloyd's is a corporation organized and existing by special Acts of the Parliament of the United Kingdom, with its principal place of business in London, England. Defendants are all individual residents of the State of Utah. The amount in controversy as against each defendant exceeds $75,000 [Appellant's Appendix (ÒAplt. App.Ó), Vol. 1, pp. 67-68].

 

On April 22, 2005, the District court entered an Order determining that the Magistrate Judge had the authority to stay release of the writ of garnishment at issue on this appeal (Aplt. App., Vol. 2, pp. 258-259). On May 6, 2005, Bennett filed a motion asking the District Court to reconsider its April 22, 2005 Order (Aplt. App., Vol. 2, pp. 260-290). The District Court denied Bennett's motion to reconsider from the bench on May 24, 2005 [Aplt. App., Vol. 1, p. 63 (Doc. No. 426), Vol. 2, p. 479], which the Court reaffirmed by written Order on July 5, 2005 (Aplt. App., Vol. 2, pp. 353-358).

 

In the present appeal (Case No. 05-4208), Bennett filed his notice of appeal from the July 5, 2005 Order on July 31, 2005 (Aplt. App., Vol. 2, pp. 359-360). *2 However, the July 5, 2005 Order was not the final order of the District Court with respect to the garnishment at issue on this appeal.

 

The District Court's final Garnishee Judgment in the garnishment proceedings was filed on May 24, 2005 (Aplt. App., Vol. 2, pp. 337-339) and entered on May 25, 2005 (Aplt. App., Vol. 1, p. 63, Doc. No. 424). Bennett timely filed a motion under Fed. R. Civ. P. 59(e) with respect to the Garnishee Judgment, on May 24, 2005 (Aplt. App., Vol. 2, pp. 340-342). The District Court's Order denying Bennett's Rule 59(e) motion was filed on August 26, 2005 (Aplt. App., Vol. 2, pp. 361-363), and Bennett timely filed his notice of appeal from that Order on September 5, 2005 (Aplt. App., Vol. 2, pp. 364-365) (Case No. 05-4239).

 

Thus, this Court does not have subject matter jurisdiction over the present appeal (Case No. 05-4208) under 28 U.S.C. ¤ 1291.[FN2]

 

    FN2. Lloyd's filed a motion to dismiss the present appeal, Case No. 05-4208, on grounds of lack of subject matter jurisdiction. On December 28, 2005, this Court ordered that Lloyd's motion to dismiss would be decided by the panel deciding the merits of this appeal.

 

STATEMENT OF ISSUES

 

1. Whether this Court lacks appellate subject matter jurisdiction over this appeal under 28 U.S.C. ¤ 1291, because it is not an appeal from a final order of the District Court.

 

2. Whether 28 U.S.C. ¤¤ 636(b)(1)(A) and 636(b)(3) gave the Magistrate Judge the authority to extend the Morgan Stanley Writ of Garnishment, because the *3 extension was nondispositive. Bennett raised this issue in the District Court, and the District Court ruled upon it (Aplt. App., Vol. 2, pp. 258-259, 329, 354).

 

3. Whether, even if the extension of the Writ of Garnishment was dispositive, the Magistrate Judge had the authority to grant the extension under 28 U.S.C. ¤ 636(c)(1), based upon the consent of the parties. This issue was raised in and ruled upon in the District Court (Aplt. App., Vol. 2, pp. 324, 330, 474).

 

STATEMENT OF THE CASE AND STATEMENT OF FACTTS

 

This is a diversity action by Lloyd's to enforce English judgments against the defendants (ÒUtah NamesÓ), based on common law principles of comity under Utah law (Aplt. App., Vol. 1, pp. 66-83). The District Court's November 12, 2002 Order (ÒSummary Judgment OrderÓ) granted Lloyd's motion for summary judgment against Bennett and the other Utah Names (Aplt. App., Vol. 1, p. 21, Doc No. 98). Based on the Summary Judgment Order, Judgments in English pounds sterling were entered against Bennett (Aplt. App., Vol. 1, pp. 124-127) and the other Utah Names on March 19, 2003.[FN3] Those Judgments were affirmed in Reinhart, supra.

 

    FN3. The District Court docket shows that the Judgments were filed on March 18 and entered on March 19 (Aplt. App., Vol. 1, pp. 28-30, Doc Nos. 156-164).

 

On November 19, 2003, the District Court entered an Order of Reference under 28 U.S.C. ¤ 636(b)(1)(A) directing the Magistrate Judge Ò... to hear and determine any nondispositive matters pending before the CourtÓ (Aplt. App., Vol. 1, p. 128). Because the Judgments against Bennett and the other Utah Names had been *4 entered eight months earlier, the only Òmatters pendingÓ at the time the Order of Reference was entered were postjudgment matters.

 

On June 28, 2004, the Clerk of the District Court issued a Writ of Garnishment of Bennett's interest in the Morgan Stanley brokerage account at issue (Aplt. App., Vol. 1, pp. 130-133). Bennett filed objections to the writ and a request for hearing (Aplt. App., Vol. 1, pp. 134-143). On August 23, 2004, the Magistrate Judge entered an Order regarding Bennett's objections (Aplt. App., Vol. 1, pp. 144-148), which, among other things, ordered that discovery be conducted with respect to the respective interests of Bennett and his wife Evalyn in the brokerage account (Aplt. App., Vol. 1, p. 147).[FN4] The Order also stayed release of the writ until further order of the Court, based on the Bennetts' stipulation [Aplt. App., Vol. 1, p. 48 (Doc No. 297), p. 148].[FN5]

 

    FN4. The parties ultimately stipulated that Bennett and his wife each had a 50% interest in the account [Aplt. App., Vol. 1, p. 50 (Doc No. 311), Vol. 2, p. 415].

 

    FN5. Bennett never objected to the Order pursuant to Fed. R. Civ. P. 72, and instead first raised his objection in Bankruptcy Court, as discussed below.

 

On December 2, 2004, Bennett filed a Chapter 7 bankruptcy petition in the United States Bankruptcy Court for the District of Utah, Central Division (Aplt. App., Vol. 1, p. 223). In the bankruptcy proceedings, Bennett contended that, despite his stipulation, the Magistrate Judge lacked the authority to stay the release of the Writ of Garnishment (Aplt. App., Vol. 1, pp. 231-251). The Bankruptcy Court referred the *5 issue to the District Court (Aplt. App., Vol. 1, p. 254),[FN6] which entered an Order on April 22, 2005, determining that the Magistrate Judge had the authority to stay release of the writ (Aplt. App., Vol. 2, pp. 258-259).

 

    FN6. The reason for the referral is that if the Writ of Garnishment remained in effect at the time of Bennett's bankruptcy filing, Lloyd's had a security interest in Bennett's 50% interest in the garnished account (Aplt. App., Vol. 1, p. 254).

 

On May 6, 2005, Bennett filed a motion asking the District Court to reconsider its April 22, 2005 Order (Aplt. App., Vol. 2, pp. 260-290). On May 10, 2005, the Bankruptcy Court granted Lloyd's relief from the automatic stay, for purposes of obtaining a garnishee judgment on Bennett's 50% interest in the Morgan Stanley account (Aplt. App., Vol. 2, pp. 300-303). On May 24, 2005, the District Court entered the Garnishee Judgment, based upon the Report and Recommendation of the Magistrate Judge[FN7] (Aplt. App., Vol. 1, pp. 167-174, Vol. 2, pp. 337-339). The District Court denied Bennett's motion to reconsider the April 22, 2005 Order from the bench on May 24, 2005 [Aplt. App., Vol. 1, p. 63 (Doc No. 426), Vol. 2, p. 479], which the Court reaffirmed by written Order on July 5, 2005 (Aplt. App., Vol. 2, pp. 353-358).

 

    FN7. Unlike the extension of the Writ of Garnishment, the Garnishee Judgment was a dispositive order (Aplt. App. Vol. 1, pp. 155-158c, 167), as to which the Magistrate Judge issued a report and recommendation pursuant to a second Order of Reference under 28 U.S.C. ¤ 636(b)(1)(B), issued by the District Court on October 20, 2004 (Aplt. App., Vol. 1, p. 166). *6 The July 5, 2005 Order is the Order that is the subject of the present appeal (Case No. 05-4208). Bennett filed his notice of appeal from that Order on July 31, 2005 (Aplt. App., Vol. 2, pp. 359-360).

 

On May 24, 2005, Bennett filed a motion under Fed. R. Civ. P. 59(e) with respect to the Garnishee Judgment (Aplt. App., Vol. 2, pp. 340-342), which the Court denied on August 26, 2005 (Aplt. App., Vol. 2, pp. 361-363). Bennett filed his notice of appeal from the August 26, 2005 Order on September 5, 2005 (Aplt. App., Vol. 2, pp. 364-365) (Case No. 05-4239).

 

SUMMARY OF ARGUMENT

 

Because the July 5, 2005 Order was not a final order of the District Court, this Court has no subject matter jurisdiction over this appeal under 28 U.S.C. ¤ 1291.

 

The Magistrate Judge had the authority under 28 U.S.C. ¤ 636(b)(1)(A) to extend the Morgan Stanley Writ of Garnishment. The statute's use of the term Òpretrial matterÓ is intended to include all nondispositive matters, including nondispositive postjudgment collection matters. Authority for the Magistrate Judge's handling of nondispositive postjudgment collection matters is also provided by ¤ 636(b)(3), conferring duties upon magistrate judges that are not inconsistent with the laws of the United States.

 

The Magistrate Judge's extension of the Writ of Garnishment was not a dispositive matter. The Clerk of the Court originally issued the Writ, as a ministerial act, based upon Lloyd's Judgment against Bennett. The Magistrate Judge's extension *7 of the Writ, based upon the stipulation of the parties, was similarly ministerial, and not analogous to an injunction.

 

Even if the extension of the Writ of Garnishment was a dispositive matter, ¤ 636(c)(1) gave the Magistrate Judge authority to grant the extension, based upon the parties' consent. It is undisputed in the record that Bennett consented to the extension, and thereby also waived any objection to the Magistrate Judge's authority to grant the extension.

 

Thus, this appeal should be dismissed. Alternatively, the District Court's Orders determining that the Magistrate Judge had the authority to extend the Writ of Garnishment should be affirmed.

 

ARGUMENT

 

I. THIS COURT LACKS APPELLATE SUBJECT MATTER JURISDICTION OVER THIS APPEAL FROM THE DISTRICT COURT'S NON-FINAL JULY 5, 2005 ORDER.

 

Standard of Review. There is no standard of review applicable to this argument.

 

As argued in Lloyd's motion to dismiss this appeal, incorporated herein by reference, the District Court's July 5, 2005 Order was not a final order of the District Court within the meaning of 28 U.S.C. ¤ 1291. Thus, this appeal should be dismissed.

*8 II. 28 U.S.C. ¤¤ 636(b)(1)(A) AND 636(b)(3) GAVE THE MAGISTRATE JUDGE THE AUTHORITY TO DECIDE ALL NONDISPOSITIVE POSTJUDGMENT ISSUES, INCLUDING EXTENSION OF THE MORGAN STANLEY WRIT OF GARNISHMENT.

 

Standard of Review. This argument is based on an issue of statutory interpretation reviewed de novo. See, Thiry v. Carlson, 78 F.3d 1491, 1495 (10th Cir. 1996), cert. den., 519 U.S. 821 (1996).

 

28 U.S.C. ¤ 636(b)(1)(A) states as follows:

 

(b)(1) Notwithstanding any provision of law to the contrary-

 

(A) a judge may designate a magistrate judge to hear and determine any pretrial matter pending before the court, except a motion for injunctive relief, for judgment on the pleadings, for summary judgment, to dismiss or quash an indictment or dismiss or to permit maintenance of a class action, to dismiss for failure to state a claim upon which relief can be granted, and to involuntarily dismiss an action. A judgment of the court may reconsider any pretrial matter under this subparagraph (A) where it has been shown that the magistrate judge's order is clearly erroneous or contrary to law.

 

Bennett interprets the phrase Òpretrial matterÓ literally, as preventing a Magistrate Judge from deciding nondispositive postjudgment matters involved in the judgment collection process. However, Bennett's interpretation is wrong.

 

In U.S. v. Flaherty, 668 F.2d 566 (1st Cir. 1981), the Court interpreted Òpretrial matters,Ó within the meaning of the above statute, as not being limited to matters literally occurring before trial. Instead (as the District Court here noted at Aplt. App., Vol. 2, pp. 476-477), Flaherty interpreted this term as referring to matters *9 Òunconnected to issues litigated at trial.Ó 668 F.2d at 586. Thus, the term Òpretrial mattersÓ was intended to be synonymous with Ònondispositive matters,Ó whether occurring before, during or after trial.[FN8]

 

    FN8. A later First Circuit case also addressed the issue of what is a Òpretrial matterÓ within the meaning of ¤ 636(b)(1)(A). See, Conetta v. National Hair Care Centers, Inc., 236 F.3d 67, 72-75 (1st Cir. 2001). While Conetta's approach to the issue is not entirely clear, Conetta did not reject the approach taken in Flaherty. Also, the present case was decided by summary judgment in the District Court, before any trial. Thus, under the literal interpretation Bennett espouses, everything that happened in the District Court, including postjudgment, was a Òpretrial matter.Ó

 

In addition to matters covered by ¤ 636(b)(1)(A), the November 19, 2003 Order of Reference (Aplt. App., Vol. 1, p. 128) permitted the Magistrate Judge to decide nondispositive issues as allowed by the District Court's Rules. D. U. Civ. R. 72-2 authorizes Magistrate Judges to decide postjudgment collection issues. Authority for this rule, in addition to ¤ 636(b)(1)(A), is found in ¤ 636(b)(3), allowing Magistrate Judges to be assigned Ò... such additional duties as are not inconsistent with the Constitution and laws of the United States.Ó In Bache Halsey Stuart Shields Inc. v. Killop, 589 F. Supp. 390, 393 (E.D. Mich. 1984), the Court held that this provision authorized Òsupervision of the collection efforts of a judgment creditorÓ by the Magistrate Judge.[FN9] See also, FDIC v. LeGrand, 43 F.3d 163, 167 (5th Cir. 1995) [magistrate judge had authority under *10 ¤ 636(b)(3) to decide nondispositive discovery dispute in postjudgment collection proceedings]; Fuddruckers, Inc. v. KCOB I, LLC, 31 F. Supp. 2d 1274, 1276, n.1 (D. Kan. 1998)(same).

 

    FN9. At the time the November 19, 2003 Order of Reference was entered, the only Òmatters pending,Ó as referenced in the Order, were postjudgment matters. In Colorado Bldg. and Constr. Trades Council v. B.B. Andersen Constr. Co., Inc., 879 F.2d 809 (10th Cir. 1999), this Court held that magistrate judges may not decide dispositive postjudgment collection matters (such as the Garnishee Judgment here issued by the District Court), without the parties' consent. However, the Court implied that ¤ 636(b)(3) gives magistrate judges the authority to decide nondispositive postjudgment collection matters.

 

Thus, ¤¤ 636(b)(1)(A) and 636(b)(3) allowed the Magistrate Judge to decide nondispositive postjudgment collection matters, such as the extension of the Writ of Garnishment here.

 

Bennett also argues that a postjudgment writ of garnishment is the equivalent of an injunction, which a Magistrate Judge is not authorized to issue or extend under ¤ 636(b)(1)(A). Again, Bennett is wrong.

 

A writ of garnishment is issued by the Clerk of the District Court, not an Article III Judge. The Clerk of the Court obviously cannot issue injunctions (or other dispositive orders).

 

The issuance of a postjudgment writ of garnishment by the Clerk of the Court is purely ministerial and nondispositive. A judgment creditor is entitled to a writ of garnishment as a matter of law, upon the filing of a proper application. See, Utah R. Civ. P. 64D (incorporated by reference in Fed. R. Civ. P. 69).

 

In Bache, supra, the defendant argued that a Magistrate Judge's postjudgment appointment of a receiver was the equivalent of an injunction because of the receiver's power to take over the defendant's assets and apply them to the judgment. The Court rejected that argument because the rights and obligations of the parties had already been established by the underlying judgment, and the appointment of a receiver merely determined how that judgment would be enforced. 589 F. Supp. at 393-394. That same *11 rationale applies here, which is why the Clerk of the District Court was authorized to issue the Morgan Stanley Writ of Garnishment, and the Magistrate Judge was authorized to extend it [based upon the good cause established by Mr. and Mrs. Bennett's stipulation to extend it, Aplt. App., Vol. 1, p. 48 (Doc No. 297), p. 148].[FN10]

 

    FN10. At p. 28 of Bennett's opening brief, he complains about the effect the Writ of Garnishment had on the interest of his wife, Evalyn, in the garnished account. However, Mrs. Bennett is not a party to this appeal, and she consented to extend the Writ of Garnishment. The parties ultimately stipulated to a 50/50 partitioning of the account [Aplt. App., Vol. 1, p. 50 (Doc. No. 311), Vol. 2, p. 415], two months after the garnishment was extended.

 

Also the fact that the Court entered a later Order of Reference (Aplt. App., Vol. 1, p. 166) under 28 U.S.C. ¤ 636(b)(1)(B), for purposes of the Magistrate Judge's Report and Recommendation on the Garnishee Judgment (which was a dispositive order), is no indication that the Magistrate Judge lacked the authority to grant the nondispositive extension of the Writ of Garnishment under the earlier ¤ 636(b)(1)(A) Order of Reference (Aplt. App., Vol. 1, p. 128). As the District Court stated:

 

..[T]he reason for the (B) reference is in no way indicative of any sort of acknowledgment or belief on my part that Judge Nuffer did not have initial jurisdiction.

 

(Aplt. App., Vol. 2, p. 474)[FN11]

 

    FN11. At pp. 4-5 of Bennett's opening brief, he cites to several portions of the record for the proposition that the parties, the Magistrate Judge and the District Court all had doubts about the Magistrate Judge's authority to extend the Writ of Garnishment. However, the cited portions of the record relate to whether the Magistrate Judge had the authority to enter a final dispositive garnishee judgment, not to whether the Magistrate Judge had the authority to extend the Writ of Garnishment.

 

*12 III. EVEN IF THE EXTENSION OF THE MORGAN STANLEY WRIT OF GARNISHMENT WAS DISPOSITIVE, THE MAGISTRATE JUDGE HAD THE AUTHORITY TO GRANT THE EXTENSION UNDER 28 U.S.C. ¤ 636(c)(1), BASED UPON THE PARTIES' CONSENT.

 

Standard of Review. This argument is based on an issue of statutory interpretation reviewed de novo. See, Thiry v. Carlson, 78 F.3d 1491, 1495 (10th Cir. 1996), cert. den., 519 U.S. 821 (1996).

 

Even if the extension of the Morgan Stanley Writ of Garnishment was dispositive, the Magistrate Judge had the authority to grant it if the parties consented. See, 28 U.S.C. ¤ 636(c)(1). It is undisputed that the parties consented. The District Court's August 6, 2004 Minute Entry reflects that counsel for all parties stipulated to the extension [Aplt. App., Vol. 1, p. 48 (Doc No. 297)], and the Magistrate Judge so found:

 

... the Magistrate Judge finds that each of the parties stipulated and agreed, on the record, that the Account remain frozen until the current dispute regarding the respective interests of Mr. and Mrs. Bennett is resolved. Therefore, the Magistrate Judge finds that, with reference to Utah R. Civ. P. 64D(s), good cause exists to stay the release of the Writ of Garnishment ...

 

(Aplt. App., Vol. 1, p. 148, emphasis added) Thus, Bennett also waived any objection to the Magistrate Judge's authority to grant the extension. See, Clark v. Poulton, 963 F.2d 1361, 1366-1367 (10th Cir. 1992), cert. den., 506 U.S. 1014 (1992).

 

*13 CONCLUSION

 

Based upon the foregoing, this Court should dismiss the present appeal for lack of subject matter jurisdiction. Alternatively, the Court should affirm the District Court's Orders determining that the Magistrate Judge had the authority to extend the Morgan Stanley Writ of Garnishment.