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.