Stevens, Hinds & White, P.C. v. Fisher, Byrialsen & Kreizer, PLLC

832 F.3d 150, 2016 U.S. App. LEXIS 14218, 2016 WL 4123852
CourtCourt of Appeals for the Second Circuit
DecidedAugust 3, 2016
DocketNo. 15-1887
StatusPublished
Cited by1 cases

This text of 832 F.3d 150 (Stevens, Hinds & White, P.C. v. Fisher, Byrialsen & Kreizer, PLLC) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Stevens, Hinds & White, P.C. v. Fisher, Byrialsen & Kreizer, PLLC, 832 F.3d 150, 2016 U.S. App. LEXIS 14218, 2016 WL 4123852 (2d Cir. 2016).

Opinion

KEARSE, Circuit Judge:

Appellant Stevens, Hinds & White, P.C. (“SHW”), which from 2003 to 2009 served as attorneys for plaintiffs Kharey Wise (aka Korey Wise) and other members of his family (collectively “Wise”) in a wrongful imprisonment action following his exoneration in a case that had come to be known as the “Central Park Jogger” case, appeals from orders of the United States District Court for the Southern District of New York, Ronald L. Ellis, Magistrate Judge, granting SHW $231,212.50 in attorneys’ fees plus $6,785 in expenses and denying motions to, inter alia, increase those amounts and to award interest. Appellee Fisher, Byrialsen & Kreizer, PLLC, current attorneys for Wise, has moved to dismiss the appeal, contending that because SHW did not consent pursuant to 28 U.S.C. § 636(c) for all proceedings to be conducted before a magistrate judge, Judge Ellis’s orders must be treated as recommendations to be reviewed by the [152]*152district court, and that appeal directly to this Court from those orders is unauthorized. Because § 636(c)’s consent requirement applies to parties (and to persons who move to become parties, see New York Chinese TV Programs, Inc. v. U.E. Enterprises, Inc., 996 F.2d 21, 25 (2d Cir. 1993) (“Chinese TV”)), and the parties here gave the requisite consent, we conclude that the consent of SHW as counsel or former counsel was not required, and we deny the motion to dismiss.

Kharey Wise was one of five persons convicted of the 1989 assault and rape of a jogger in New York City’s Central Park. After spending years in prison, he and the other four were exonerated after DNA testing confirmed that the crime had been committed by someone else. In 2003, Wise, represented by SHW, commenced an action pursuant to 42 U.S.C. §§ 1983 and 1985 against the City of New York (the “City”) and numerous other defendants, alleging civil rights violations in connection with Kharey Wise’s wrongful conviction and imprisonment. In 2007, the Wise action was consolidated with the similar actions brought by the other four exonerated individuals and their families.

In 2009, Wise replaced SHW with a firm that was a predecessor to Fisher, Byrial-sen & Kreizer, PLLC (collectively “FBK”). SHW notified FBK of its intention to seek attorneys’ fees and costs in the event that Wise obtained a favorable, judgment.

In September 2014, after pretrial proceedings in which claims of some plaintiff family members had been dismissed for failure to prosecute, all of the remaining parties to the consolidated action consented in writing pursuant to 28 U.S.C. § 636(c) “to have a United States magistrate judge conduct all [further] proceedings in th[e] case including trial, the entry of final judgment, and all post-trial proceedings” (Parties’ Consent To Proceed Before United States Magistrate Judge (“Consent”) at 2.) The Consent, “So-Ordered” by the district judge, stated that “Any appeal from a judgment entered in this case will lie to the Court of Appeals for the Second Circuit as from any other judgment of the district court pursuant to 28 U.S.C. § 636(c)(3) and Fed. R. Civ. P. 73(c).” (Consent at 1.)

The parties immediately settled the litigation, entering into a Stipulation and Order of Settlement and Dismissal that, inter alia, disposed of all remaining claims, stated that the City would pay certain specified sums, and stated that the consolidated “action is hereby dismissed.” On September 5, 2014, the Stipulation and Order of Settlement and Dismissal was “So-Ordered” and entered by the magistrate judge (the “So-Ordered Settlement”), and the case was marked “Terminated” as of that date.

The So-Ordered Settlement provided that Kharey Wise, “in full satisfaction of all his claims against” the defendants, “including ... attorneys’ fees,” would receive $12,250,000, and that he assigned his rights to attorneys’ fees, expenses, and costs to FBK. SHW promptly filed a petition with the magistrate judge seeking the reasonable value of the services it had provided to Wise in the litigation. An escrow fund for fees was created.

The magistrate judge decided SHW’s motion and denied a motion by SHW.for reconsideration (the “SHW Orders”); the ■ details of those orders are not material to this motion to dismiss. SHW has appealed both orders to this Court. FBK has moved to dismiss the appeal for lack of appellate jurisdiction on the ground that the magistrate judge’s SHW Orders are not final decisions within the meaning of 28 U.S.C. § 1291 because SHW did not consent to have all proceedings conducted before a magistrate judge. FBK argues that in the [153]*153absence of such consent, a magistrate judge’s orders are merely recommendations to be ruled on by a district judge. For the reasons that follow, we reject FBK’s premise that SHW’s consent was required, and we deny the motion to dismiss.

Section 636(c) provides, in part, that when “specially designated to exercise [civil] jurisdiction by the district court ... he [or she] serves,” a “United States magistrate judge ... may”

(1) Upon the consent of the parties, ... conduct any or all proceedings in a jury or nonjury civil matter and order the entry of judgment in the case....

18 U.S.C. § 636(c)(1) (emphasis added); see also id. § 636(c)(3) (“The consent of the parties allows a magistrate judge designated to exercise civil jurisdiction under paragraph (1) of this subsection to direct the entry of a judgment of the district court in accordance with the Federal Rules of Civil Procedure”).

“If a magistrate judge is designated to exercise civil jurisdiction under paragraph (1) of [§ 636(c)],” and is available, the parties are to be so advised by the clerk of court when the action is filed, and they may be so advised again thereafter by the district court judge or the magistrate judge, but they must also be

advise[d] ... that they are free to withhold consent without adverse substantive consequences. Rules of court for the reference of civil matters to magistrate judges shall include procedures to protect the voluntariness of the parties’ consent.

Id. § 636(c)(2). Such consent may be express or implied, see, Roell v. Withrow, 538 U.S. 580, 585, 588, 123 S.Ct. 1696, 155 L.Ed.2d 775 (2003); but unless there is such consent by all of the parties, “the Magistrate Judge lack[s] authority to enter judgment,” Yeldon v. Fisher, 710 F.3d 452, 453-54 (2d Cir. 2013).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
832 F.3d 150, 2016 U.S. App. LEXIS 14218, 2016 WL 4123852, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stevens-hinds-white-pc-v-fisher-byrialsen-kreizer-pllc-ca2-2016.