Estate of Wayne Jones v. City of Martinsburg , 655 F. App'x 948 ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-2135
ESTATE OF WAYNE A. JONES BY ROBERT L. JONES AND BRUCE A.
JONES, Administrators of the Estate of Wayne A. Jones,
Plaintiff - Appellant,
v.
CITY OF MARTINSBURG, WEST VIRGINIA; PFC. ERIK HERB; PFC.
DANIEL NORTH; PTLM. WILLIAM STAUBS; PTLM. PAUL LEHMAN; PFC.
ERIC NEELY,
Defendants – Appellees,
and
MARTINSBURG POLICE DEPARTMENT; DOES 1 TO 25,
Defendants.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. Gina M. Croh, Chief
District Judge. (3:13-cv-00068-GMG-JES)
Argued: March 22, 2016 Decided: July 6, 2016
Before GREGORY and DUNCAN, Circuit Judges, and Richard L.
VOORHEES, United States District Judge for the Western District
of North Carolina, sitting by designation.
Remanded by unpublished order. Judge Gregory directed entry of
the order with the concurrence of Judge Duncan. Judge Voorhees
wrote a dissent from the order of remand.
ARGUED: Christopher Edwin Brown, BROWN FIRM, PLLC, Alexandria,
Virginia, for Appellant. Philip W. Savrin, FREEMAN MATHIS
& GARY, LLP, Atlanta, Georgia, for Appellees. ON BRIEF:
Rocco J. DeLeonardis, CONSUMER LAW, PLLC, Reston, Virginia, for
Appellant.
ORDER
GREGORY, Circuit Judge:
In the unique circumstances presented, because the facts
admitted as a result of the requests for admission, which formed
the basis of the underlying motion to deem requests for
admissions admitted, constructively resolved all of the material
issues in dispute, giving the motion a dispositive effect, and
because this Court is unable to determine the extent of the
district court’s reliance on the admissions, this Court remands
the matter to the district court for consideration of the
discretionary factors in Rule 36(b) in determining whether to
allow the withdrawal of the admissions. This order in no way
opines on the merits of such consideration.
REMANDED
2
VOORHEES, District Judge, dissenting:
I respectfully dissent from the order entered in this case.
My disagreement with the majority’s action extends to the form,
as recognized by the substantial variance in length between the
majority’s order and my dissent, as well as the substance of the
disposition reached in this case.
In late December of 2013, the City of Martinsburg and the
related individual defendants (collectively, the City) served
requests for admission (RFAs) upon the Estate. On the day the
responses were due, the City filed a “Motion to Deem Requests
for Admissions to Plaintiffs Admitted.” J.A. 48. This motion
was referred to the magistrate judge who ultimately denied the
motion because it was premature. J.A. 99. During oral argument
before the magistrate judge, counsel for the City explicitly
mentioned that “[i]f a party wants to have his admissions
withdrawn, then he should file a motion under [Federal Rule of
Civil Procedure] 36(b).” J.A. 86:21-23. The plain language of
Rule 36(b) states that “[a] matter admitted under this rule is
conclusively established unless the court, on motion, permits
the admission to be withdrawn or amended.” On appeal, neither
party seriously contests the fact that the plain meaning of Rule
36 posits that it is self-executing: “A matter is admitted,
unless, within 30 days after being served, the party to whom the
3
request is directed serves on the requesting party a written
answer.” Fed. R. Civ. P. 36(a)(3).
Nevertheless, the City filed a “Second Motion to Deem
Requests for Admissions to Plaintiffs Admitted.” J.A. 100. The
Estate responded by asserting incorrect arguments regarding the
time period it had to respond to the requests. J.A. 122-23.
However, the Estate also argued that “there is sufficient
evidence to contradict any purported admissions” and that it
would not serve the purpose of Rule 36 to deem the RFAs admitted
because the Estate could dispute the facts contained therein.
J.A. 124. The Estate also attached its responses to the RFAs.
J.A. 128-131. At no point, however, did the Estate mention Rule
36(b) or the word “withdraw” until it filed its appeal with this
court.
The Estate asked this panel to cobble together these two
filings and construe them as the functional equivalent of a
motion under Rule 36(b). Prior unpublished decisions of this
court have not strictly interpreted the motion requirement under
Rule 36(b) and have allowed late responses or a motion for
extension of time to serve as the functional equivalent of a
motion under Rule 36(b). Bailey v. Christian Broad. Network,
No. 11-2348, 483 F. App'x 808, 810 (4th Cir. June 15, 2012)
(filing a motion for extension of time “was, in essence, a
motion to withdraw deemed admissions”); Metpath, Inc. v. Modern
4
Med., No. 90-2234, 934 F.2d 319, 1991 WL 87534, at *2 (4th Cir.
May 29, 1991) (per curiam) (late response). These decisions are
based in part upon the reasoning by the Supreme Court that “if a
litigant files papers in a fashion that is technically at
variance with the letter of a procedural rule, a court may
nonetheless find that the litigant has complied with the rule if
the litigant’s action is the functional equivalent of what the
rule requires.” Torres v. Oakland Scavenger Co., 487 U.S. 312,
316-17 (1988). Rule 36(b) is the pertinent rule and states that
the required motion or “functional equivalent” thereof should
contain a discussion of whether withdrawal “would promote the
presentation of the merits” or prejudice the opposing party.
Fed. R. Civ. P. 36(b). Under Torres and the prior unpublished
decisions of this court, it is appropriate to treat the related
filings responding to the second motion to deem the RFAs
admitted as the functional equivalent of a motion to withdraw
under Rule 36(b).
The magistrate judge in the underlying case considered the
second motion filed by the City, the Estate’s response to the
motion, and the attached response to the RFAs. J.A. 161-64.
The magistrate judge granted the underlying motion in an order
without explicitly considering the Rule 36(b) factors. Id.
However, as explained infra, the result of the magistrate
5
judge’s actions was to deny implicitly any constructive motion
to withdraw.
At no point in this litigation did the Estate object to the
form or substance of the magistrate judge’s disposition of the
motion. Ultimately, the City moved for and received summary
judgment. Specifically, the district court found that “[m]any
material facts in this case are undisputed because a magistrate
court order deemed admitted requests for admission” and “the
evidence in the record independently supports the facts
admitted.” J.A. 552.
The Estate timely appealed the grant of summary judgment.
In the “Issues Presented for Review” it stated that this panel
should consider (1) whether the district judge, as opposed to
the magistrate judge, erred in granting the second motion to
deem RFAs admitted without consideration of the Rule 36(b)
factors; and (2) whether the district court properly granted
summary judgment based on the deemed admissions. (Appellant’s
Initial Br., at 1). Later in the brief, the Estate argued that
the magistrate judge’s failure to consider Rule 36(b)
constituted an abuse of discretion. (Id. at 21-22, 25). Much,
if not all, of the discussion contained in the initial brief
argued that the actions of the district court judge and
magistrate judge were functionally indistinguishable.
6
On appeal, the City argued that the Estate failed to
preserve the Rule 36(b) issue for appellate review by failing to
object to the magistrate judge’s order. Only in its reply did
the Estate argue that the magistrate judge was required to issue
a report and recommendation (R&R) and that the ruling “on these
clearly dispositive matters without providing a [R&R] should be
subject to review by this Court.” (Appellant’s Reply Br., at
3).
On March 22, 2016, this court heard oral arguments from
counsel. Around six weeks later, on May 4, 2016, the panel
ordered supplemental briefing on the following:
(1) Whether, under 28 U.S.C. § 636, the
City of Martinsburg’s “second motion to
deem requests for admissions to plaintiffs
admitted” should be characterized as
dispositive or non-dispositive of
plaintiffs’ claims?;
(2) Whether, under 28 U.S.C. § 636, the
magistrate judge had authority to “hear
and determine” the City of Martinsburg’s
motion?; and
(3) Whether there is an exception to the
general rule of waiver when a magistrate
judge issues an order beyond his statutory
authority in 28 U.S.C. § 636?
A. The First Level of Waiver
Today the panel has remanded by way of an order because the
magistrate judge’s order and the motion itself were “dispositive
in effect.” To reach this issue, the panel necessarily had to
7
find that it was appropriate to consider the Estate’s newly
advanced argument in its reply. However, “it is a well settled
rule that contentions not raised in the argument section of the
opening brief are abandoned.” A Helping Hand, LLC v. Baltimore
County, MD, 515 F.3d 356, 369 (4th Cir. 2008) (quoting United
States v. Al-Hamdi, 356 F.3d 564, 571 n.8 (4th Cir. 2004)).
“[I]n rare circumstances, appellate courts, in their discretion,
may overlook this rule and others like it if they determine that
a ‘miscarriage of justice’ would otherwise result.” Id.
Perhaps the majority found that the supplemental briefing
ordered obviated any prejudice to the City. See Brown v. Nucor
Corp., 785 F.3d 895, 921 (4th Cir. 2015) (stating the purpose of
this doctrine “is to avoid unfairness to an appellee and
minimize the ‘risk of an improvident or ill-advised opinion
being issued on an unbriefed issue.’”) (quoting United States v.
Leeson, 453 F.3d 631, 638 n.4 (4th Cir. 2006)). Nevertheless,
as explained below, this is but one instance of the Estate’s
failure to fully present its arguments to the appropriate
judicial body. Accordingly, I would find that this is not the
rare exception to this rule of waiver.
B. The Second Level of Waiver
Assuming the panel found the requisite miscarriage of
justice, it would still have to determine that a second and
separate rule of waiver is inapplicable to remand this matter to
8
the district court. As early as 1997, this court has stated,
“[o]ur cases are replete with warnings that the consequences of
failing to file objections is waiver of the right to appeal.”
Wells v. Shriners Hosp., 109 F.3d 198, 199 (4th Cir. 1997). The
text of Federal Rule of Civil Procedure 72 warns parties of the
failure to object. Regarding nondispositive matters, “[a] party
may not assign as error a defect in the order not timely
objected to.” Fed. R. Civ. 72(a). Regarding dispositive
matters, to which the magistrate judge must file a R&R, the
aggrieved party must file objections within fourteen days and
“[t]he district judge must determine de novo any part of the
magistrate judge’s disposition that has been properly objected
to.” Fed. R. Civ. P. 72(b)(2)-(3) (emphasis added). This court
has extended the waiver rule to both dispositive and non-
dispositive matters. Solis v. Malkani, 638 F.3d 269, 274 (4th
Cir. 2011) (Gregory, J.).
The order entered by the majority appears to indicate that
it considered the order entered by the magistrate judge to be
dispositive and, for that reason, remand was warranted. There
are two types of referrals under 28 U.S.C. § 636(b)(1).
Specifically, under § 636(b)(1)(A) a magistrate judge may “hear
and determine” any pending pretrial matter and issue an order,
so long as the matter does not involve a set of listed motions.
Under § 636(b)(1)(B), a magistrate judge may consider the
9
motions listed in § 636(b)(1)(A) but has to issue a R&R instead
of an order.
Several unpublished decisions of this court have indicated
that a motion that is the functional equivalent of a listed
motion under § 636(b)(1)(A) is deemed dispositive and that a
district court should apply a de novo standard of review instead
of a clearly erroneous standard of review to timely filed
objections. See, e.g., Reddick v. White, No. 08-2286, 456 F.
App'x 191, 193-94 (4th Cir. Dec. 1, 2011); see also Gomez v.
United States, 490 U.S. 858, 868 (1989) (classifying the listed
motions as “dispositive”). Federal Rule of Civil Procedure 72,
a corollary to § 636, makes the distinction between (A) and (B)
referrals by reference to whether a particular matter is
dispositive or nondispositive. Fed. R. Civ. P. 72.
To the knowledge of the undersigned, no case in this court
has addressed directly the situation posed in this appeal: what
happens when a magistrate judge enters an order on a matter that
is deemed functionally dispositive and said order is never
objected to? Should the court refuse to apply the general rule
of waiver because the magistrate judge was supposed to enter a
R&R?
The Solis case is actually instructive on this point. In
Solis, the district court judge referred a request for fees to
the magistrate judge without specifying whether the magistrate
10
judge should issue a R&R or an order. 638 F.3d at 272. The
magistrate judge ultimately issued findings on a document
entitled “order of the Court.” Id. In Solis, neither party
objected to the magistrate judge’s order within the required
period. Id. Instead, the aggrieved litigant appealed directly
to the Fourth Circuit. The Fourth Circuit dismissed this first
appeal for lack of jurisdiction. 1 On remand, the district court
judge held that § 636(b)(1)’s list of motions was not exhaustive
and instead extended to all dispositive motions. Chao v.
Malkani, mem. op., No. 8:00-cv-03491, at *4 (D. Md. Feb. 25,
2009). It then held that the motion requesting fees was
1The panel reasoned that “[i]t is unclear from the record
whether the district court’s referral to the magistrate judge
was pursuant to § 636(c) or § 636(b).” Chao v. Malkani, No. 07-
1828, at *2 (4th Cir. June 5, 2008) (unpublished order). Given
the ambiguity, the court found that it was without jurisdiction
because a party may not directly appeal a R&R or a magistrate
judge’s order because of the application of the final judgment
rule. See id. (such an order “cannot be directly appealed to
this Court”) (citing Reynaga v. Cammissa, 972 F.2d 414, 416-18
(9th Cir. 1992) (discussing the final judgment rule and deciding
to issue a writ of mandamus to avoid determining whether
appellate jurisdiction existed)). If the magistrate judge’s
order was under § 636(c), consent was not evident from the
record. Id. Given the uncertainty of whether a final judgment
was present, the panel remanded the matter to the district court
and did “not address the issue of whether appellants have waived
their right to appeal, as that is not before us at this time.”
Id. Here, it is abundantly clear that the court has
jurisdiction over the final judgment entered by the district
court in its grant of summary judgment. Moreover, the waiver
issue is directly before this court.
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dispositive under § 636. The district court judge then
considered whether the parties waived the right to object to the
magistrate judge’s filing denominated as an “order.” The
district court judge stated that the only way the magistrate
judge could have heard the motion was under § 636(b)(1)(B). Id.
at 7. 2 Accordingly, the district court recharacterized the
“order” as a R&R and determined that the parties waived the
right to appeal the matter to him. Id. Finally, the district
judge “adopted the report without further review.” Id. at 8.
On appeal, the Solis panel decided de novo whether the aggrieved
party “waived its rights to challenge the findings of the
magistrate judge by failing to file objections with the district
court.” 638 F.3d at 273. The court held that it was immaterial
that the magistrate judge entered an order as opposed to a R&R:
“Counsel should have known that their failure to act waived the
right of their clients to district court review of
recommendations, and that, thereafter, the court would be free
to adopt the recommendations wholesale.” Id. at 274. There is
no reason not to apply Solis to the instant case. Assuming
2The district court judge also held that the defendants
knew of the distinction because they objected to the referral of
the matter to the magistrate judge on the
dispositive/nondispositive distinction. Chao, mem. op., No.
8:00-cv-03491, at *7. However, the panel did not cite this
evidence as a basis for upholding the district court’s decision.
12
arguendo that the matters decided by the magistrate judge can be
declared dispositive as stated by the majority, a clear line of
precedent from this court indicates that filing objections is
imperative to preserving review even at the district court
level. Moreover, Solis posits that waiver applies no matter how
the magistrate judge denominates his order.
Perhaps Solis and the general rule of waiver can be
distinguished in the instant case, but that task has not been
undertaken by the majority. The arguments distinguishing
application of this second level of waiver were themselves
waived by failing to include them in the initial brief.
Assuming the majority has declined to apply the first level of
waiver, it could perhaps have considered distinguishing the
second level of waiver discussed above. In Thomas v. Arn, the
Supreme Court expressly approved of the use of waiver when a
party fails to object to a magistrate judge’s R&R. 474 U.S.
140, 146-47 (1985). This rule derives from the courts of
appeals’ supervisory powers and serves (1) to focus the district
court judge’s attention on disputed matters; and (2) to promote
judicial economy. Id. Without the rule of waiver, an aggrieved
litigant could sandbag the district court judge by raising its
objections on appeal. Id. at 147-48. As a consequence, either
district court judges would have to consider carefully every
single unobjected-to matter before their magistrate judges to
13
ensure that no error is present or appellate panels would have
to perform this duty. Id. at 148. This court has suggested
that an opportunistic litigant might even attempt to “bypass the
district court entirely, even though Congress had lodged the
primary responsibility for supervision of federal magistrates’
functions with that judicial body.” United States v. Schronce,
727 F.2d 91, 94 (4th Cir. 1984).
The Supreme Court held that this enormous waste of the
parties’ and the judicial system’s resources can properly be
avoided by utilizing the appellate courts’ supervisory powers.
Arn, 106 U.S. at 47. However, the Supreme Court cautioned that
these supervisory powers could not be applied if they “conflict
with constitutional or statutory provisions.” Id. at 148. The
Ninth Circuit holds that waiver is inappropriate when a
magistrate judge issues an order on a dispositive motion as
opposed to a R&R because it implicates structural principles of
Article III. Bastidas v. Chappell, 791 F.3d 1155, 1159 (9th
Cir. 2015) (“The line Congress drew between dispositive and
nondispositive motions was not a result of happenstance.
Rather, it reflects the very real concern that, at least absent
consent, delegating the final disposition of cases to magistrate
judges would run afoul of the Constitution.”). The Ninth
Circuit did not rest its holding on Article III but rather
determined that the Magistrates Act amounted to a “statutory
14
provision that embodies a strong policy concerning the proper
administration of judicial business.” Bastidas, 791 F.3d at
1160 (quoting Nguyen v. United States, 539 U.S. 69, 78 (2003)).
Following Nguyen, the Ninth Circuit stated that “the importance
of policing the proper designation of judicial officers in
Article III courts convinces us that review is warranted despite
[the] failure to object.” Id. at 1160. If the majority’s order
implies that this rule applies here, it should make that
determination explicit in order to avoid the time consuming
process that occurred in the instant case.
Moreover, this court should carefully examine Bastidas
before adopting its reasoning. I will not attempt to
exhaustively examine the Bastidas opinion, but I will pose
several issues that deserve further examination before it is
applied in this court.
First, Nguyen concerned the improper assignment of a non-
Article III judge to a panel in clear violation of 28 U.S.C. §
292. 539 U.S. at 79-80. The violation of § 636 is not so
clear. It relies upon a construction of § 636 that is more
restrictive of the magistrate judge’s powers than supplied in
the text Congress enacted. In this case, the motion ruled upon
by the magistrate judge is not a listed motion under §
636(b)(1)(A).
15
Secondly, the majority’s order states that the magistrate
judge’s order itself was dispositive of the matter, but, the
question then arises, when was it dispositive? How is a
district court judge or magistrate judge to determine when
particular discovery matters are dispositive of a claim? The
answer to this question would seem to not be after an appellate
panel returns these matters for further review.
Third, Nguyen concerned entry of a final ruling in a case
by an improperly formed panel. However, here the magistrate
judge’s order never amounted to a final ruling that was
appealable to this court. Rather, the final order on appeal is
the grant of summary judgment. This is not a distinction
without merit. The magistrate judge never purported to be the
final arbiter of the viability of the claims advanced by the
Estate and the district court always retained its supervisory
role to hear any objections. Congress provided a mechanism for
ensuring that aggrieved litigants receive Article III review of
a magistrate judge’s disposition of particular matters.
Congress envisioned a system where the district court judge is
the primary supervisor of the magistrate judge and § 636
supplies dissatisfied parties an avenue to ensure that the
desired amount of supervision is available. See Schronce, 727
F.2d at 94. Any inclination here to adopt the Ninth Circuit’s
position without seriously examining Congress’ other strong
16
policy favoring district court review of magistrate judge
matters is inappropriate.
C. There is Not a Putative Rule 36(b) Motion Pending
Before the District Court
Finally, the majority’s order appears to aver that the
district court judge failed to rule upon an otherwise ripe Rule
36(b) motion. However, as stated above, the magistrate judge
considered the entirety of the filings before him, including (1)
the Estate’s response to the motion to deem the RFAs admitted,
and (2) its response to the RFAs. The essence of the majority’s
ruling implies comfort with conjuring an implicit motion but
discomfort with allowing an implicit denial.
When the magistrate judge entered the order deeming the
RFAs admitted, he implicitly denied any implied purported
pending motions attending the Estate’s response. Ruling
otherwise would require a district court judge to comb through
the materials presented to a magistrate judge to determine if
some implicit matter was raised but not directly addressed in
the magistrate judge’s order or R&R. Our adversarial system
stands as a check on such an effect. Moreover, a contrary
holding would run afoul of the Magistrates Act’s purposes as
articulated by this court in numerous decisions as well as by
the Supreme Court in Arn.
17
Unpublished precedent indicates that putative, un-ruled
upon motions do not exist in this type of situation. By way of
example, in Bailey, the magistrate judge was presented with a
request for extension of time to answer requests for admission.
483 F. App’x 808, 809-10. The magistrate judge erroneously
believed that he was constrained by Rule 36(a) and did not treat
the motion for extension of time as the functional equivalent of
a motion under Rule 36(b). Id. at 810. Critically, Bailey
objected to this motion. Id. The district court summarily
denied the objection. Id. Nowhere in the opinion does the
Bailey panel intimate that the motion remained pending even
after appeal. See id. Rather, the panel concluded that the
district court itself erred by summarily rejecting the
objections to the magistrate judge’s disposition. Id. If the
motion remained pending, the Bailey panel would not have needed
to hold that the district court judge erred and would have
instead, like the majority in this case, remanded the matter to
the district court judge.
Moreover, the rule that a judge necessarily and implicitly
denies all relief requested when he disposes of the matters
presented to him without granting said relief is applied to
other judicial officers. See Poindexter v. Mercedes-Benz Credit
Corp., 792 F.3d 406, 411 (4th Cir. 2015) (affirming the district
court’s “implicit denial of” litigant’s Rule 56(d) motion);
18
Varghese v. Honeywell Intern., Inc., 424 F.3d 411, 415 n.6 (4th
Cir. 2005) (district court’s rulings “stand[] as an implicit
rejection of [litigant’s] summary judgment argument”); United
States v. Benenhaley, No. 06-6117, 240 F. App’x 581, 582 & n.*
(4th Cir. July 10, 2007) (“affirm[ing] the district court’s
implicit denial” of a claim it admittedly did not address: “[b]y
omitting this claim from its opinion, the district court
implicitly rejected it.”); Marcellin v. Kupferer, No. 02-2157,
60 F. App'x 513, 514 (4th Cir. Apr. 15, 2003) (“We conclude the
district court’s summary judgment order implicitly denied
Marcellin’s request to have its requests for admissions deemed
admitted under Rule 36(a).”). The majority’s order is an
example of this doctrine applied in the appellate context. By
not addressing the arguments advanced by the City, it has
rejected them, albeit without providing sustaining rationale.
Finally, the Estate’s response to the City’s motion for
summary judgment cannot be considered the functional equivalent
of a motion under Rule 36(b). Attempting to dispute admitted
facts at summary judgment cannot be considered the functional
equivalent of a motion under Rule 36(b) without entirely
eviscerating the motion requirement. Moreover, such a ruling
would necessarily excise a portion of Rule 56 itself. See Fed.
R. Civ. P. 56(c)(1)(A) (indicating that a party can show an
absence of a dispute regarding factual matters by citing
19
admissions). Unpublished precedent from this court supports the
proposition that a party’s attempt to dispute admitted facts at
summary judgment does not constitute the functional equivalent
of a motion under Rule 36(b). Adventis, Inc. v. Consol. Prop.
Holdings, Inc., Nos. 04-1405, 05-1411, 124 F. App'x 169, 173
(4th Cir. Mar. 2, 2005) (“Rule 36 admissions are conclusive for
purposes of the litigation and are sufficient to support summary
judgment.”) (quoting Langer v. Monarch Life Ins. Co., 966 F.2d
786, 803 (3d Cir. 1992)); Foxworth v. World Book Encyclopedia,
Inc., No. 87-2128, 838 F.2d 466, 1988 WL 6814, at *1 (4th Cir.
Jan. 27, 1988) (failing to give pro se litigant Roseboro notice
prior to entering summary judgment for defendant was harmless
error because the litigant had failed to timely respond to
RFAs). Published and persuasive precedent from other Circuits
hold likewise. Koszola v. Bd. of Educ. of City of Chicago, 385
F.3d 1104, 1109 (7th Cir. 2004); Karras v. Karras, 16 F.3d 245,
247 (8th Cir. 1994). Finally, such a motion would necessarily
be filed well outside the discovery period. J.A. 39, 239.
In conclusion, I do not believe that the facts presented in
this case are so exceptional as to fall outside the general rule
that a party waives arguments not advanced in its initial brief.
Moreover, I do not believe the facts presented in this case
justify deviating from well-settled precedent from this court
that prohibits an aggrieved litigant from raising arguments on
20
appeal when he or she fails to raise the same before the
district court judge. Finally, I do not believe our precedent
has ever required a district court judge to review filings
before a magistrate judge to determine if an unruled-upon
implicit motion is buried in the docket.
The majority’s position necessarily results in an undue
restriction on a magistrate judge’s ability to effectively
perform his delegated tasks and imposes additional duties upon a
delegating district court judge. Consequently, as envisioned by
Arn, it has required the panel to address matters never
addressed by the district court judge and has caused a
substantial waste of judicial resources. The purpose of the
Magistrates Act was to assist the judiciary as a whole to
“reduce increasingly unmanageable caseloads.” Schronce, 727
F.2d at 93. The Supreme Court has recognized that the judicial
system would “grind nearly to a halt” without the presence of
magistrate judges at the trial court level. Wellness Intern.
Network, Ltd. v. Sharif, 135 S. Ct. 1932, 1939 (2015).
The majority’s order in this case necessarily traverses
several layers of waiver to conclude that remand of this matter
to the district court is appropriate. The majority’s opinion in
In re Carney best explains why affirming the grant of summary
judgment is the correct result:
21
For our litigation system to work
effectively, litigants must comply with the
Federal Rules of Civil Procedure. [The
Estate’s] plight in this case exemplifies
how repeated failures to do so ultimately
preclude a party from presenting the merits
of his case.
In re Carney, 258 F.3d 415, 422 (5th Cir. 2001). Given the
aforementioned reasons, I must respectfully dissent.
22