872 F. 2d 1026 - Estate McBride v. McBride
872 F2d 1026 Estate McBride v. McBride
872 F.2d 1026
ESTATE of Edward McBRIDE, deceased, by Edward McBride, Jr.,
its personal representative, Plaintiff-Appellee,
v.
Mary McBRIDE, Defendant-Appellant,
Physicians Mutual Insurance Company, a Nebraska Corporation,
Defendant.
No. 88-2207.
United States Court of Appeals, Sixth Circuit.
March 31, 1989.
Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Before BOYCE F. MARTIN, JR., KRUPANSKY and MILBURN, Circuit Judges.
ORDER
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The defendant appeals the final judgment for the plaintiff in this civil action to recover insurance proceeds. The plaintiff now moves to dismiss the appeal on the grounds that the defendant did not properly petition this Court for leave to appeal under 28 U.S.C. Sec. 636(c)(5) and on the grounds that the defendant's notice of appeal was untimely. The defendant opposes this motion. Both parties request sanctions.
By consent of the parties, this case was referred to a magistrate by the district court under 28 U.S.C. Sec. 636(c). Section 636(c) authorizes a magistrate to conduct any or all proceedings in a civil matter and order the entry of judgment in the case. Upon entry of judgment, an aggrieved party may appeal directly to the court of appeals. 28 U.S.C. Sec. 636(c)(3). If the parties wish to appeal to the district court instead of the court of appeals, they must consent to that option on the record. 28 U.S.C. Sec. 636(c)(4). Here, the magistrate filed a report and recommendation and the district court entered judgment. The parties did not choose an optional appeal route. Under Sec. 636(c), the magistrate had authority to enter judgment; the district court lacked jurisdiction to do so.
Upon consideration, it is ORDERED that the judgment of the district court is vacated and that the case is remanded in order to permit the magistrate to enter judgment in this case. Rule 9(b)(6), Rules of the Sixth Circuit. The parties may then appeal directly to this Court pursuant to 28 U.S.C. Sec. 636(c)(3). The motion to dismiss is rendered moot.