Richard E. Holbert, Plaintiff-appellant, v. Idaho Power Company, Defendant-appellee, 195 F.3d 452 (9th Cir. 1999)

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U.S. Court of Appeals for the Ninth Circuit - 195 F.3d 452 (9th Cir. 1999)

Submitted September 15, 1999* Seattle, WashingtonFiled November 8, 1999


Ray E. Smith, Boise, Idaho, for the plaintiff-appellant.

Rex Blackburn and Thomas B. Humphrey, Evans, Keane, Boise, Idaho, for the defendant-appellee.

Appeal from the United States District Court for the District of Idaho; Larry M. Boyle, Magistrate Judge, Presiding. D.C. No. CV-96-00472-LMB

Before: Mary M. Schroeder and Robert R. Beezer, Circuit Judges, and William W Schwarzer,**  District Judge.

ORDER

Richard E. Holbert appeals the magistrate judge's order denying his motion for partial summary judgment, and granting Idaho Power Company's ("IPC") motion for summary judgment. We lack jurisdiction.

A magistrate judge has authority to enter a final judgment only where all parties to the litigation have consented to the magistrate judge's jurisdiction. See 28 U.S.C. S 636(c) (1); Fed. R. Civ. P. 73(b); Nasca v. Peoplesoft, 160 F.3d 578, 579 (9th Cir. 1999). Such consent must be "explicit, clear and unambiguous" and "will not be inferred from the silence or conduct of the parties." Nasca, 160 F.3d at 579; see also Hajek v. Burlington N. R.R. Co., No. 97-36152, 1999 WL 569363, at *6 (9th Cir. August 5, 1999). Section 636(c) (2) requires that such consent "be communicated to the clerk of the court," and Fed. R. Civ. P. 73(b) requires that all parties "execute and file a joint form of consent or separate forms of consent."

Our examination of the district court file fails to disclose an "explicit, clear and unambiguous" consent by IPC to the jurisdiction of the magistrate judge, nor did IPC do so in the manner required by 28 U.S.C. S 636(c) and Fed. R. Civ. P. 73(b)1 .The magistrate judge acted without jurisdiction in purporting to enter a final, appealable judgment in this case. The magistrate judge's "lack of jurisdiction a fortiori deprives this court of appellate jurisdiction." Nasca, 160 F.3d at 580; see 28 U.S.C. S 636(c) (3); Fed. R. Civ. P. 73(c). We dismiss this appeal and each party shall bear their own costs.

DISMISSED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) (2).

 **

The Honorable William W Schwarzer, Senior United States District Judge for the Northern District of California, sitting by designation.

 1

Noting the absence of express consent in the record to the magistrate judge's authority we raised sua sponte the question of our own jurisdiction. See Nasca, 160 F.3d at 579.