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FRANK v. COUNTY OF HUDSON

April 17, 1997

ROSEMARY FRANK, et al., Plaintiffs,
v.
COUNTY OF HUDSON, et al., Defendants.



The opinion of the court was delivered by: WOLIN

 WOLIN, District Judge

 This case is before the Court on the motion of plaintiff Rose Frank to vacate this Court's Order referring this civil matter to Magistrate Judge Joel A. Pisano for trial. The Court has decided the matter under Federal Rule of Civil Procedure 78. For the reasons stated herein, the plaintiff's motion will be denied.

 Plaintiff argues that this Court should vacate its referral of this case to Judge Pisano for trial: (1) because plaintiff Frank allegedly did not consent to the referral; and (2) because Frank withdraws any apparent consent because Judge Pisano allegedly appears biased against plaintiff. The Court finds, however, that vacation of the referral is not warranted because plaintiff Frank consented to this Court's referral of this matter to Judge Pisano for trial and there is no good cause, let alone the "extraordinary circumstances" requisite to vacate the referral. *fn1"

 The Court referred this case to Judge Pisano for trial with the consent of the parties pursuant to 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73.

 A. Frank Validly Consented to Trial Before Magistrate Judge Pisano

 Frank first asserts that she never consented to trial of the case before Judge Pisano and that the referral was invalid. The Court finds otherwise. Section 636(c)(1) provides that this Court may refer any or all proceedings in any civil matter to a magistrate judge with the consent of the parties:

 
Upon the consent of the parties, a full-time United States magistrate or a part-time United States magistrate who serves as a full-time judicial officer may conduct any or all proceedings in a jury or nonjury civil matter and order the entry of judgment in the case, when specially designated to exercise such jurisdiction by the district court or courts he serves. . . .

 28 U.S.C. § 636(c)(1). Likewise, Federal Rule of Civil Procedure 73(b) indicates:

 
When a magistrate judge has been designated to exercise civil trial jurisdiction, the clerk shall give written notice to the parties of their opportunity to consent to the exercise by a magistrate of civil jurisdiction over the case, as authorized by Title 28, U.S.C. § 636(c). . . .

 Fed. R. Civ. P. 73(b).

 By its own terms, section 636(c)(1) does not require a specific form or time of consent or even that it be in writing, unless the proceeding is before a part-time magistrate. See, e.g., Jurado v. Klein Tools, Inc., 755 F. Supp. 368, 369 (D. Kan. 1991) (citing King v. Ionization Intern., Inc., 825 F.2d 1180, 1185 (7th Cir. 1987); Lovelace v. Dall, 820 F.2d 223, 226 (7th Cir. 1987)).

 Nor does section 636(c)(1) by its terms require the party itself to give consent or foreclose the party's counsel from consenting on behalf of the party. Rather, the general rule that an attorney has the authority as an agent to bind a client on actions taken within the scope of the attorney's authority applies, and an attorney's consent to proceed before a magistrate judge is sufficient under the statute. See, e.g., Freeman v. Petsock, 820 F.2d 628, 629 (3d Cir. 1987) (counsel signed consent on behalf of all defendants); Jurado, 755 F. Supp. at 371 ("A court in conducting its ...


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