Milligan v. W&M Properties Inc, No. 05-2062 (4th Cir. 2006)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 05-2062 JOHNNY L. MILLIGAN, individually and on behalf of I.L.M. (minor) and I.L.M. (minor); CAROLYN A. MILLIGAN, Plaintiffs - Appellants, versus W&M PROPERTIES, INCORPORATED OF VIRGINIA, d/b/a Merrifield Village Apartment Company; ANDREW GREENLEAF LAWRENCE, Defendants - Appellees. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Claude M. Hilton, District Judge. (CA-04-1517) Submitted: January 31, 2006 Decided: March 7, 2006 Before NIEMEYER and GREGORY, Circuit Judges, and HAMILTON, Senior Circuit Judge. Dismissed and remanded by unpublished per curiam opinion. Johnny L. Milligan, Carolyn A. Milligan, Appellants Pro Se. Jennifer Ann Guy, John David Wilburn, MCGUIREWOODS, LLP, McLean, Virginia, for Appellee W&M Properties; Andrew Greenleaf Lawrence, Fairfax, Virginia, Appellee Pro Se. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). - 2 - PER CURIAM: Johnny L. and Carolyn A. Milligan appeal from the magistrate judge s order denying their motion for a ruling on their motion for sanctions pursuant to Fed. R. Civ. P. 11(b)(3). Because we find that the magistrate judge did not have authority to enter a final, appealable order on this matter, we dismiss the appeal without prejudice for lack of jurisdiction and remand to the district court for further proceedings. Pursuant to 28 U.S.C. § 636(c) (2000), a magistrate judge may enter a final order directly appealable to the court of appeals upon consent of all parties. Otherwise, under § 636(b), a district court must initially review the magistrate judge s order or proposed findings under either a de novo or clearly erroneous standard of appealed. review depending upon the nature of the ruling Absent an express adoption, modification, or rejection of the magistrate judge s ruling by the district court, the ruling is generally not reviewable by the court of appeals. See Reynaga v. Cammisa, 971 F.2d 414, 416-18 (9th Cir. 1992). In this case, we find nothing in the record showing that the parties agreed to have the motion for sanctions decided by the magistrate judge. As a result, the magistrate judge lacked the authority to enter a final order terminating the case. See Gleason v. Sec y of Health & Human Serv., 777 F.2d 1324 (8th Cir. 1985). Accordingly, we dismiss this appeal and remand to the - 3 - district court for further proceedings. See Massey v. City of Ferndale, 7 F.3d 506, 510-11 (6th Cir. 1993) (dismissing appeal from unauthorized order issued by magistrate judge but remanding to district court for corrective action). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. DISMISSED AND REMANDED - 4 -
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