Chapter 6: Pretrial and Trial Practice
II. Conferences and Scheduling
Initial scheduling orders are governed by Federal Rule of Civil Procedure 16(b). The conferences which result in initial scheduling orders are typically conducted by telephone conference call with a member of the judge’s staff. While the conferences are relatively informal, care should be taken in preparing for them.
II.A. Scheduling Orders and Pretrial Conferences
Consider your discovery needs and the desirability, if any, for a quick resolution of the case. Subsequent pretrial conferences will result in the formulation of additional scheduling orders./219/ Attention must also be given to any local rule governing pretrial conferences.
Courts permit or deny modification of a scheduling order depending on whether the “good cause” required by Rule 16(b) has been shown./220/ Additional scheduling orders may be issued following any pretrial conference. Rule 16(e) provides that “[t]he order following a final pretrial conference shall be modified only to prevent manifest injustice.” Rule 16(f) authorizes the imposition of sanctions for failing to obey a scheduling or pretrial order, including the ultimate sanction of dismissal./221/ The district court’s decision to impose or refuse sanctions is overturned only for an abuse of discretion./222/
II.B. Assignment of Magistrate Judges
The role and authority of federal magistrate judges is governed by 28 U.S.C. §§ 631 et seq. and Federal Rules of Civil Procedure 72 and 73. Rule 72 permits magistrate judges to decide pretrial matters referred to them by district court judges, and Rule 73 permits them to conduct trials “[w]hen specially designated ...by local rule or order of the district court and when all parties consent.” Magistrate judges may act as special masters,/223/ and may have additional duties established by court order or local rule, so long as these are not “inconsistent with the Constitution and laws of the United States.”/224/ In all of these situations, magistrate judges are authorized to act only to the extent granted by the district court. The advisability of referring matters to a magistrate judge is one of the subjects to be discussed at a pretrial conference. The manner in which cases are allotted to magistrate judges is determined by local rule.
The “pretrial matters” covered by Rule 72 include virtually any motion made before trial and are both “(a) non-dispositive matters” and “(b) dispositive motions and prisoner petitions.” Determining which matters are dispositive is not always easy./225/ As for non-dispositive matters, the magistrate judge has the authority to enter an order deciding the matter unless the order of reference directs her merely to make a recommendation. A party who is displeased with the magistrate judge’s ruling may file objections within ten days of being served with the order./226/ Unless the matter was referred solely for a recommendation, the standard of review set forth in Rule 72(a) is highly deferential: “clearly erroneous or contrary to law.”/227/ Objections are heard by the district judge to whom the case is assigned, and may be made in any manner permitted by local rule. Failure to object constitutes a waiver of the right to review of the magistrate judge’s order, but the district judge may elect to review it nevertheless./228/
With a few exceptions, much of the foregoing discussion also applies to dispositive pretrial motions under Rule 72(b). With respect to dispositive motions, the magistrate judge may make findings and a recommendation, but does not enter an order. The objections thereto must be “specific.”/229/ The party opposing the objection is expressly permitted to file a written response within ten days of service of the objections. The review by the district judge assigned to the case is de novo, which acknowledges the importance of the matter./230/ A record of the proceedings before the magistrate judge is made in order to permit such de novo review, and the party objecting must “promptly arrange” for its transcription./231/ A district judge has no obligation to review the magistrate judge’s recommendation on a dispositive matter in the absence of an objection./232/
Upon review of objections, the district judge “may accept, reject, or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate with instructions.”/233/ The district judge must not, however, merely rubber-stamp the recommended decision./234/ Even so, no specific findings are necessary to satisfy the judge’s review responsibility./235/ In conducting the required de novo review, the district court may be limited only with respect to disregarding the credibility determinations by the magistrate judge, but even that is not entirely clear./236/
Rule 73, implementing 28 U.S.C. § 636(c), gives magistrate judges authority to “conduct any or all proceedings, including a jury or non-jury trial, in a civil case” on two conditions. The first is that they have been “specially designated to exercise such jurisdiction by local rule or order of the district court,” and the second is that all parties consent./237/ To protect against a party feeling coerced into accepting such a referral, subsection (b) of the rule provides that each party’s position on consent is to be filed but not revealed to the judge or magistrate judge unless all parties consent./238/ Implied consent to trial by the magistrate judge is permitted “when the litigant or counsel was made aware of the need for consent and the right to refuse it, and still voluntarily appeared to try the case before the Magistrate Judge.”/239/ If any parties are added to the case after the original parties have consented to trial before the magistrate judge, care must be taken to obtain their consent, too./240/ Once the matter is referred, the order of reference can be vacated by the district judge “for good cause shown on its own motion, or under extraordinary circumstances shown by a party.”/241/ There is some authority that a magistrate judge may also permit withdrawal of consent./242/
The only exception to the magistrate’s plenary power to hear a case referred under Rule 73 is that she may not find parties in contempt. Section 636(e) mandates that the district judge hear such matters when the magistrate issues an order to show cause. A record of the proceedings before the magistrate judge must be kept unless the parties agree otherwise; they may also agree on a method of recording other than the use of a court reporter./243/ Under Rule 73(c), appeal from a judgment entered by a magistrate judge “will lie to the court of appeals as it would from a judgment of the district court.” Review in the court of appeals is the same as if the judgment had been entered by a district judge./244/
219. Examples of subjects for consideration under Rule 16(a) and (c) include amendments to pleadings, controlling discovery, admissions of fact and of documents, identification of witnesses and documents, exchanging pretrial briefs, settlement, and a reasonable limit on the time allowed for presenting evidence.
220. Compare Summers v. Mo. Pac. R.R., 132 F.3d 599, 604-06 (10th Cir. 1997) (permitting modification), and Burton v. United States, 199 F.R.D. 194, 197 (D. W. Va. 2001) (same), with Book v. Nordrill Inc., 826 F.2d 1457, 1461 (5th Cir. 1987) (refusing to permit new expert to testify); Gestetner Corp. v. Case Equip. Co., 108 F.R.D. 138, 140 (D. Me. 1985) (denying modification). See Marmo v. IBP, Inc., No. 8:00CV527, 2005 WL 675809, at *2 (D. Neb. Feb. 3, 2005) (In holding there was no showing of good cause for modification of case management order to allow designation of new expert witness, court noted that the “primary measure” of the Rule 16 good cause standard “is the moving party's diligence in attempting to meet the case management order's requirements.”).
221. Spain v. Bd. of Educ. of Meridian Cmty. United Sch. Dist., 214 F.3d 925, 930 (7th Cir. 2000).
222. See, e.g., Sanders v. Union Pac. R.R., 193 F.3d 1080, 1082 (9th Cir. 1999) (en banc).
223. 28 U.S.C. § 636(b)(2); see Fed. R. Civ. P. 53.
224. 28 U.S.C. § 636(a), (b)(3).
225. See, e.g., Vogel v. U.S. Office Prods. Co., 258 F.3d 509, 517 (6th Cir. 2001) (order of remand is dispositive and can only be entered by district court); Calabro v. Stone, No. CV2003-4522CBAMDG, 2005 U.S. Dist. LEXIS 5527, at *1, 2005 WL 327547, at *1 (E.D.N.Y. Jan. 27, 2005) (ruling on motion to amend complaint treated as dispositive, but acknowledging contrary case law); Benedict v. Zimmer, Inc., 232 F.R.D. 305 (N.D. Iowa 2005) (motion for leave to provide expert report is nondispositive matter); Yang v. Brown Univ., 149 F.R.D. 440, 442-43 (D.R.I. 1993) (order precluding testimony of expert witness as discovery sanction deemed dispositive). Cf. Fed. R. Civ. P. 54(d)(2)(D) (district court “may refer a motion for attorneys' fees to a magistrate judge under Rule 72(b) as if it were a dispositive pretrial matter.”).
226. Fed. R. Civ. P. 72(b).
227. Particularly in the discovery context, this is viewed as an abuse-of-discretion standard. See, e.g., Anjelino v. N.Y. Times Co., 200 F.3d 73, 88 (3d Cir. 1999). As to matters referred for recommendation only, the review is de novo. See European Cmty. v. RJR Nabisco Inc., 134 F. Supp. 2d 297, 302 (E.D.N.Y. 2001).
228. Fed. R. Civ. P. 72(a). See Douglass v. United Services Auto. Assoc., 79 F.3d 1415, 1429 (5th Cir. 1996) (“We note that it is often the case, especially in pro se cases, that, even though objections are not filed to all of the magistrate judge's proposed findings and conclusions, the district judge engages in de novo review of all of the proposals, because he is not certain which ones are challenged, or on what basis.”).
229. Fed. R. Civ. P. 72(b). The right to de novo review is confined to the specific issues raised by the objection. See, e.g., Whitehead v. Okla. Gas & Elec. Co., 187 F.3d 1184, 1190 (10th Cir. 1999).
230. Fed. R. Civ. P. 72(b). See McCombs v. Meijer, 395 F.3d 346, 360 (6th Cir. 2005) (district court cannot simply “concur” in the magistrate’s findings, but must conduct its own review).
231. Fed. R. Civ. P. 72(b).
232. See, e.g., Thomas v. Arn, 474 U.S. 140, 153 (1985).
233. Fed. R. Civ. P. 72(b).
234. See, e.g., Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991). See also, McCombs, 395 F.3d at 360.
235. Garcia v. City of Albuquerque, 232 F.3d 760, 766 (10th Cir. 2000).
236. See United States v. Raddatz, 447 U.S. 667, 673 (1980); see generally Charles A. Wright & Arthur R. Miller, 12 Federal Practice and Procedure§ 3070.2 (3d ed. 1998) (“In sum, the district judge’s power to reject the magistrate judge’s recommendation is almost unlimited.”). See also, Thomas v. Guardsmark, Inc., No. 02C8848, 2006 U.S. Dist. LEXIS 1307, at *5-6, 2006 WL 59358, at *2 (N.D. Ill. Jan. 4, 2006) (district court “is not required to conduct a hearing to review the magistrate's findings and credibility determinations.”) (citing Goffman v. Gross, 59 F.3d 668, 671 (7th Cir. 1995)).
237. See Roell v. Withrow, 538 U.S. 580, 585 (2003).
238. See also, 28 U.S.C. § 636(c)(2). Parties are to be advised “that they are free to withhold consent without adverse substantive consequences.” Id.
239. Roell, 538 U.S. at 590.
240. Mark I Inc. v. Gruber, 38 F.3d 369, 370 (7th Cir. 1994).
241. Fed. R. Civ. P. 73(b); 28 U.S.C. § 636(c)(4). See also, Manion v. American Airlines, Inc., 251 F. Supp.2d 171, 175 (D.D.C. 2003) (allegation of magistrate bias found insufficient to meet “extraordinary circumstances” standard required to vacate referral with consent of parties).
242. Sockwell v. Phelps, 906 F.2d 1096, 1097 n.1 (5th Cir. 1990).
243. 28 U.S.C. § 636(c)(5).
244. See, e.g., Lady v. Neal Glaser Marine Inc., 228 F.3d 598, 601 (5th Cir. 2000), cert. denied, 532 U.S. 941 (2001).