Henry Malasky v. Robert Julian

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 23 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

HENRY MALASKY, No. 17-15117

Plaintiff-Appellant, D.C. No. 4:16-cv-04102-DMR

v. MEMORANDUM* ROBERT A. JULIAN; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California Donna M. Ryu, Magistrate Judge, Presiding

Submitted March 13, 2018**

Before: LEAVY, M. SMITH, and CHRISTEN, Circuit Judges.

Henry Malasky appeals pro se from the magistrate judge’s order dismissing

his action alleging federal claims. We have jurisdiction under 28 U.S.C. § 1291.

We review de novo whether the magistrate judge had jurisdiction. Allen v. Meyer,

755 F.3d 866, 867-68 (9th Cir. 2014). We vacate and remand.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Plaintiff and defendants Julian and Plastiras consented to proceed before a

magistrate judge. See 28 U.S.C. § 636(c). The magistrate judge then dismissed

plaintiff’s action before the other named defendants had been served. See Fed. R.

Civ. P. 4(m), 12(b)(6). Because all parties, including unserved defendants, must

consent to proceed before the magistrate judge for jurisdiction to vest, Williams v.

King, 875 F.3d 500, 503-04 (9th Cir. 2017), we vacate the magistrate judge’s order

and remand for further proceedings.

Henry Malasky’s and Julian’s requests for oral argument, set forth in their

briefs, are denied.

Appellees Martin and Garrett Malasky’s motion to dismiss the appeal

(Docket Entry No. 9), joined by Appellee Jennifer Esposito (Docket Entry No. 12),

is denied.

The parties shall bear their own costs on appeal.

VACATED and REMANDED.

2 17-15117