United States District Court, W.D. Missouri, Southern Division
P. RUSH, UNITED STATES MAGISTRATE JUDGE
the Court is Plaintiff's Motion to Rescind Consent for
Magistrate, filed on June 14, 2019. (Doc. 11.) Plaintiff has
also filed an Objection to Defendant's Consent to
Magistrate Assignment. (Doc. 14.) As follows, the relief
requested will be denied.
Motion to Rescind Consent for Magistrate (doc. 11)
moves for a transfer of this case to another Magistrate Judge
or Judge, asserting she “rescinds consent to this
particular Magistrate Judge, David P. Rush.” Plaintiff
states that she “agrees to have her claim be heard by a
Magistrate Judge that can be ethical, nonpartisan, unbiased
and without a conflict of interest.” In support, she
argues the undersigned “ordered Plaintiff to prove her
claim, before proceeding.” There is no absolute right
to withdraw consent to proceed before a magistrate judge in a
civil case once such consent is given. Dixon v.
Ylst, 990 F.2d 478, 480 (9th Cir.1993). Instead, 28
U.S.C. § 636(c)(4) provides that a party must show
“extraordinary circumstances” to withdraw
magistrate consent. Id.; see also Carter v. Sea
Land Services, Inc., 816 F.2d 1018, 1020-21 (5th
Cir.1987); Fed.R.Civ.P. 73(b)(3).
matter, Plaintiff signed and returned the consent form on or
about May 20, 2019, expressly waiving the right to proceed
before a United States District Judge and voluntarily
consenting to the exercise of jurisdiction by the
undersigned. (Doc. 13.) Plaintiff does not deny that this
consent was valid when made. Rather, it appears that she is
unhappy that she was subsequently ordered to amend her
complaint to adequately state a claim upon which relief can
be granted. Adverse rulings against a party, however, do not
constitute “extraordinary circumstances” for
purposes of withdrawing consent under Section 636(c)(4).
See Mello v. Unum Corp., No. 4:13CV2543 NCC, 2014 WL
360610 at *1 (E.D. Mo. Feb. 3, 2014); Reed v. City of
Springfield, Missouri, No. 05-3133-CV-S-SWH, 2006 WL
8435716 at *3 (W.D. Mo. May 11, 2006). As a result, Plaintiff
has not presented any extraordinary circumstances as required
to withdraw consent.
motion also implies that she believes the undersigned has a
bias or prejudice against her. To the extent Plaintiff is
arguing the undersigned should recuse himself because of bias
or prejudice, the Court will briefly address this issue.
Plaintiff has presented no facts or reasons whatsoever for
any belief that bias or prejudice exists, apart from the
aforementioned adverse ruling. “An unfavorable judicial
ruling, however, does not raise an inference of bias or
require the trial judge's recusal.” Harris v.
Missouri, 960 F.2d 738, 740 (8th Cir. 1992).
Accordingly, to the extent Plaintiff is seeking the
undersigned's recusal, she has presented no basis for
such a request.
the Motion to Rescind Consent for Magistrate will be denied.
Objection to Defendant's Consent to Magistrate Assignment
has also filed a document titled “Objection to
Defendant's Consent to Magistrate Assignment.” She
argues that Defendant's signed consent to magistrate
jurisdiction is untimely because it was not filed before June
4, 2019. Thus, according to Plaintiff, Defendant's
consent is “null and void.” The Court construes
Plaintiff's filing as a motion to strike Defendant's
Defendant did not enter the case until June 7, 2019, when it
filed a Waiver of Service of Summons. On June 11, 2019, the
Clerk of Court sent notice of the magistrate assignment to
Defendant via email, advising that a response was due by July
2, 2019. Defendant's signed consent form was
returned to the Clerk on or about June 13, 2019, then
docketed on June 24, 2019, well in advance of the initial
July 2, 2019 return date for Defendant.
result, Plaintiff's assertion that Defendant was required
to consent by June 4, 2019, even though Defendant had neither
been served with process nor entered the case voluntarily as
of that date, is simply incorrect. Rather, Defendant's
consent was due 21 days after the Clerk sent notice to it on
June 11, 2019. And, as set forth above, Defendant returned
the consent form within this initial 21-day period.
Therefore, the Court finds no basis to strike Defendant's
on the foregoing, Plaintiff's Motion to Rescind Consent
for Magistrate is DENIED. Furthermore,
Plaintiff's Objection to Defendant's Consent to
Magistrate Assignment, construed as a motion to strike
Defendant's consent, is DENIED.