Mcleod, Alexander, Powel & Apffel, P.c., Plaintiffs-appellees, v. Fred H. Quarles, Defendant-appellant, 925 F.2d 853 (5th Cir. 1991)

Fred H. Quarles moved in the district court to vacate an earlier judgment entered against him. The district court denied his motion, and Quarles appeals. Finding no error, this Court will affirm the judgment of the district court.

This case has an unpleasantly long history. While a full statement of the facts that gave rise to this litigation is set out in this Court's prior opinion, McLeod, Alexander, Powel & Apffel, P.C. v. Quarles, 894 F.2d 1482, 1488 (5th Cir. 1990), it is necessary to provide a brief summary of the prior proceedings in this Court and the district court. In 1987 the lawfirm of McLeod, Alexander, Powel & Apffel sued Quarles in state court, seeking recovery of approximately $12,000 in attorney's fees. Quarles removed the case to federal district court. When Quarles persistently refused to respond to the lawfirm's discovery requests and engaged in other obstructive tactics, the district entered a default judgment against Quarles. This Court affirmed that judgment, and remanded the case for a determination of the reasonable amount of attorney's fees due the lawfirm as a result of its efforts to collect its debt from Quarles. 894 F.2d at 1488.

On remand, the district judge referred the case to a magistrate for determination of the amount of attorney's fees. Shortly thereafter, Quarles filed a motion pursuant to Fed. R. Civ. P. 60(b), seeking to vacate the judgment against him on the basis of newly discovered evidence. The magistrate held two hearings; at the second, the magistrate heard argument on Quarles' motion to vacate the judgment against him. The magistrate recommended to the district court that Quarles' motion be denied. Quarles filed objections to the magistrate's recommendations, arguing for the first time that the magistrate did not have authority to hear a Rule 60(b) motion. The district court adopted the magistrate's findings and recommendations over Quarles' objections. Once again, Quarles has appealed.

This appeal raises two related issues: first, can a Rule 60(b) motion to vacate a judgment be referred to a magistrate at all, and second, if such a motion can be referred to a magistrate, what is the extent of the magistrate's authority with respect to that motion? It is not entirely clear from Quarles' brief, but he appears to argue that his Rule 60(b) motion could not properly be referred to a magistrate at all, for any purpose. Quarles also argues that even if a Rule 60(b) motion can properly be referred to a magistrate, the reference in this case was inadequate. Neither of these positions has any merit.

The statutes that create the position of United States Magistrate authorize district courts to refer a variety of matters to magistrates. The extent of the magistrate's authority varies, however, from matter to matter. Certain matters may be referred to a magistrate for her to hear and determine--that is, to rule on and enter an order or judgment for the court. On other matters, however, the magistrate is authorized only to hold an evidentiary hearing on the matter, and to propose to the district court findings of fact and to recommend a disposition of the matter. Examples of the first of these--matters which a magistrate may both hear and determine--include those matters described in 28 U.S.C. § 636(b) (1) (A), which authorizes magistrates to "hear and determine" certain non-dispositive pretrial motions, subject to review in the district court only for clear error.¹  Ford v. Estelle, 740 F.2d 374, 377 (5th Cir. 1984). Also, if the parties consent, under 28 U.S.C. § 636(c) a magistrate may conduct any and all proceedings in any civil matter referred to it by the district court, including trial, and enter judgment for the court.²  Parks v. Collins, 761 F.2d 1101, 1106 (5th Cir. 1985).

Examples of those matters as to which the magistrate is authorized only to hold an evidentiary hearing, and to propose to the district court findings of fact and to recommend a disposition of the matter, include the matters described in 28 U.S.C. § 636(b) (1) (B).³  Section 636(b) (1) (B) allows a magistrate to hold hearings, propose findings of fact, and recommend disposition of certain dispositive pretrial and posttrial motions. Ford, 740 F.2d at 377. The magistrate's proposed findings of fact and recommendations are subject to de novo review by the district court, a review which includes an opportunity for the parties to object to the findings and recommendations of the magistrate. Id.

Quarles does not seem to recognize the importance of this distinction in the extent of the authority conferred on magistrates. Although his brief is not entirely clear, he appears to argue that the magistrate had no authority to rule on his motion. Such an argument, whether or not correct, is irrelevant in this case. In this case the magistrate did not rule on Quarles' motion. The magistrate did not enter an order for the court. He only held a hearing, and prepared for the district judge proposed findings of fact and a recommendation for how to rule on Quarles' motion. The district court conducted its own de novo review of Quarles' motion and the magistrate's findings and recommendations, and considered the parties' objections to those findings and recommendations. The district court--not the magistrate--then ruled on the motion. Thus, the only question before this Court is whether a magistrate has authority to hold a hearing on a Rule 60(b) motion and tender to the district court proposed findings of fact and recommendations for the disposition of the motion. The question of whether a magistrate may both hear and determine a Rule 60(b) motion is not before this Court, and this Court does not today decide that question.

B. A Magistrate's Authority to Hear a Rule 60(b) Motion

Section 636(b) (1) does not mention Rule 60(b) or motions to vacate judgments. Accordingly, our cases have held that that section does not authorize a magistrate either to hear or determine a Rule 60(b) motion. Parks, 761 F.2d at 1104-05. Also, although it is clear that a magistrate may hear and determine a Rule 60(b) motion pursuant to Sec. 636(c), it is equally clear that that section is inapplicable to the present case. That section was not invoked by the district court in its order of reference, and reference of any matter under Sec. 636(c) requires the consent of the parties, usually in writing, which was neither sought nor obtained here. See Parker v. Mississippi State Dept. of Public Welfare, 811 F.2d 925, 927-28 (5th Cir. 1987).

Given that a magistrate is not authorized to hear or determine a Rule 60(b) motion under Sec. 636(b) (1), and that on the facts of this case the magistrate did not have authority to hear the motion pursuant to Sec. 636(c), the question presented is whether a magistrate might have jurisdiction of a Rule 60(b) motion under 28 U.S.C. § 636(b) (3). This is a question that this Court has previously avoided. See, e.g., Parker, 811 F.2d at 928, 928 n. 8; Parks, 761 F.2d at 1105 n. 6. The question can no longer be avoided, however, because the lawfirm argues that it is precisely that section--Sec. 636(b) (3)--which authorizes the district court to assign a Rule 60(b) motion to a magistrate for an evidentiary hearing, and allows the magistrate to tender to the district court proposed findings of fact and a recommendation as to how to rule on the motion.

Section 636(b) (3) is brief. It provides only that " [a] magistrate may be assigned such additional duties as are not inconsistent with the Constitution and laws of the United States." 28 U.S.C. § 636(b) (3). Indeed, the section is so brief that it yields a rather featureless grant of authority, one which so far has been little used. Nonetheless, it is possible to determine what authority this section confers on magistrates by looking at the other sections of the statutes which confer authority on magistrates. As noted in part II. A. above, those sections include generous provisions authorizing district court judges to refer a variety of matters to magistrates, including several dispositive pretrial and posttrial motions. 28 U.S.C. § 636(b) (1). Indeed, Sec. 636(c) allows a magistrate to hear and determine a Rule 60(b) motion. Parks, 761 F.2d at 1106. In light of these provisions, it seems entirely consistent with a magistrate's other duties to allow her to hear a Rule 60(b) motion and to prepare proposed findings and recommendations.⁴  Accordingly, this Court holds that Sec. 636(b) (3) authorizes a district court to refer to a magistrate a motion made pursuant to Rule 60(b), at least for the limited purpose of holding an evidentiary hearing and preparing for the district court proposed findings of fact and recommendations for the disposition of the motion.⁵ 

C. The Reference of the Rule 60(b) Motion in This Case

Quarles also argues, however, that even if referral of his Rule 60(b) motion is authorized, in this case it was not properly made. Quarles points to two flaws in the reference of his Rule 60(b) motion to the magistrate. He asserts that 1) he did not consent to the reference, and 2) the order referring the case to the magistrate was defective in that it mentioned only the determination of attorneys' fees, and not the Rule 60(b) motion. The crucial flaw in Quarles' first argument is that even if consent is required for a reference under Sec. 636(b) (3),⁶  it is the law of this circuit that when judgment on a matter is entered by the district court, and not the magistrate, failure to obtain the consent of the parties to the proceeding before the magistrate is only a procedural error, not a jurisdictional error. Archie v. Christian, 808 F.2d 1132, 1134-35 (5th Cir. 1987) (en banc) . Cf. Sockwell v. Phelps, 906 F.2d 1096, 1099 (5th Cir. 1990). Quarles second argument is similarly flawed: a defect in the order referring the case to the magistrate is merely procedural. Parker, 811 F.2d at 929. Finally, given that the errors complained of are only procedural, any objection to them may be waived if not timely raised. A party waives his objection when he participates in a proceeding before a magistrate and fails to make known his lack of consent or fails to object to any other procedural defect in the order referring the matter to the magistrate until after the magistrate has issued her report and recommendations. Id. at 928-29; Archie, 808 F.2d at 1137 (Higginbotham, J., concurring); Cruz v. Hauck, 515 F.2d 322, 331 (5th Cir. 1975), cert. denied, 424 U.S. 917, 96 S. Ct. 1118, 47 L. Ed. 2d 322 (1976).⁷  By waiting to object until after the magistrate had issued its proposed findings of fact and its recommendation that the Rule 60(b) motion be denied, Quarles waived his objection.

For the reasons stated, the judgment of the district court is affirmed.

AFFIRMED.