869 F. 2d 1493 - Shumaker v. Combined Insurance Company of America

Before KENNEDY and NATHANIEL R. JONES, Circuit Judges, and EUGENE E. SILER, Jr., Chief District Judge*.

These appeals have been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit.

Review of the papers before the court indicates that on May 18, 1988, appellant filed a complaint in a civil action in the District Court for the Eastern District of Michigan. Appellant thereafter filed a motion seeking both the entry of default judgment against appellee and a change of venue to another division of the district court. The district court referred the motion to a magistrate who denied both requests for relief in an order entered September 1, 1988. Appellant filed two notices of appeal from that order on January 11, 1989. As of this date, the district court has not entered a final order or judgment on the merits of appellant's cause of action.

This court must dismiss the appeals for lack of jurisdiction. An order of a magistrate is not appealable unless he has been given plenary jurisdiction by the district court and the consent of the parties under 28 U.S.C. Sec. 636(c)(1). Ambrose v. Welch, 729 F.2d 1084, 1085 (6th Cir.1984) (per curiam); Trufant v. Autocon, Inc., 729 F.2d 308, 309 (5th Cir.1984). The magistrate was not given plenary jurisdiction in these cases, but was only acting pursuant to his authority to dispose of pre-trial motions under 28 U.S.C. Sec. 636(b)(1). Moreover, even if a district court judge had caused the entry of the order which is the subject of these appeals, this court would still lack jurisdiction as orders denying motions for a default judgment or a change of venue are not final and appealable. Adult Film Ass'n, Inc. v. Thetford, 776 F.2d 113, 115 (5th Cir.1985) (per curiam); McNutt v. Cardox Corp., 329 F.2d 107, 108 (6th Cir.1964) (per curiam); Philip Carey Mfg. Co. v. Taylor, 286 F.2d 782, 784 (6th Cir.), cert. denied, 366 U.S. 948 (1961).

Accordingly, it is ORDERED that the appeals be and hereby are dismissed for lack of jurisdiction. Rule 9(b)(1), Rules of the Sixth Circuit.