United States of America and Michael W. Mida, Plaintiffs-appellees, v. Sue Coup, Defendant-appellant, 139 F.3d 908 (9th Cir. 1998)

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US Court of Appeals for the Ninth Circuit - 139 F.3d 908 (9th Cir. 1998)

Submitted Feb. 9, 1998**.Decided Feb. 20, 1998


Appeal from the United States District Court for the District of Alaska James K. Singleton, District Judge, Presiding.

Before CANBY, LEAVY and SILVERMAN, Circuit Judges.


MEMORANDUM* 

Sue Coup appeals pro se the magistrate judge's order requiring her, as a third party recordkeeper, to comply with a summons by the Internal Revenue Service. We dismiss this appeal for lack of jurisdiction.

The power of federal magistrate judges is limited by 28 U.S.C. § 636. A district judge may authorize a magistrate judge to decide nondispositive pretrial matters and to prepare findings and recommendations on dispositive matters. See 28 U.S.C. § 636(b) (1); Estate of Conners v. O'Connor, 6 F.3d 656, 658 (9th Cir. 1993). However, a magistrate judge lacks the authority to issue a dispositive order, including an order enforcing a summons, unless the parties consent to a decision by a magistrate judge. See 28 U.S.C. § 636(c) (1); Reynaga v. Cammisa, 971 F.2d 414, 416 (9th Cir. 1992).

Here, the parties did not consent to the magistrate judge's exercise of plenary authority. The magistrate judge therefore lacked the authority to do other than issue findings and a recommendation on the IRS request. See Reynaga, 971 F.2d at 416. Because the magistrate judge did not have the authority to enter a final order, Coup's notice of appeal from that order "was a nullity and did not divest the district court of jurisdiction." See Estate of Conners, 6 F.3d at 659. In the interest of justice, we transfer this appeal to the district court for further action.

TRANSFERRED.

 **

The panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a); 9th Cir. R. 34-4

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3