Unpublished Dispositionralph Dunlap, Plaintiff-appellant, v. Albert L. Borton, Lt.; Joseph G. Cavencdy, Officer,defendants-appellees, 899 F.2d 1221 (6th Cir. 1990)

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US Court of Appeals for the Sixth Circuit - 899 F.2d 1221 (6th Cir. 1990) April 11, 1990

Before RALPH B. GUY, Jr. and ALAN E. NORRIS, Circuit Judges; and CONTIE, Senior Circuit Judge.


This matter is before the court upon consideration of the appellant's motion to remand the case to the district court to permit him to amend his complaint.

A review of the record indicates that by order filed November 2, 1989, the magistrate granted a stay of discovery pending resolution of a motion to dismiss. Appellant appealed from that order on November 9, 1989 (appeal no. 89-2300). The magistrate filed a report and recommendation on November 30, 1989, recommending that the complaint be dismissed. The district court adopted the report and recommendation and dismissed the action by order entered December 13, 1989. Appellant appealed from the December 13, 1989, decision on December 19, 1989 (appeal no. 89-2429).

Generally, orders regarding discovery are not immediately appealable and cannot be reviewed until after entry of the final decision. In re Recticel Foam Corp., 859 F.2d 1000, 1002-03 (1st Cir. 1988); In re Willy, 831 F.2d 545, 549 (5th Cir. 1987); Cochran v. Birkel, 651 F.2d 1219, 1221 (6th Cir. 1981), cert. denied, 454 U.S. 1152 (1982). In addition, an order of the magistrate is not appealable unless the magistrate is given plenary jurisdiction by the district court and by consent of the parties pursuant to 28 U.S.C. § 636(c) (1). Tripati v. Rison, 847 F.2d 548 (9th Cir. 1988) (per curiam); McGraw v. Connelly (In re Bell & Beckwith), 838 F.2d 844, 848 n. 5 (6th Cir. 1988); Ambrose v. Welch, 729 F.2d 1084, 1085 (6th Cir. 1984) (per curiam). The magistrate was not given plenary jurisdiction in this case.

It is ORDERED that appeal no. 89-2300 be, and it hereby is, dismissed for lack of jurisdiction. Rule 9(b) (1), Rules of the Sixth Circuit. The motion to remand is denied as moot.