Excel Industries, Incorporated v. Eastern Express, Incorporated Malachi Chapman, Jr. , 72 F.3d 126 ( 1995 )

72 F.3d 126
NOTICE: Fourth Circuit Local Rule 36(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

EXCEL INDUSTRIES, INCORPORATED, Plaintiff-Appellant,
v.
EASTERN EXPRESS, INCORPORATED; Malachi Chapman, Jr.,
Defendants-Appellees.

No. 95-1948.

United States Court of Appeals, Fourth Circuit.

Submitted Nov. 7, 1995.
Decided Dec. 14, 1995.

Stephen Lee Barden, III, Asheville, North Carolina, for Appellant. Frank Parrott Graham, ROBERTS, STEVENS & COGBURN, P.A., Asheville, North Carolina; Malachi Chapman, Jr., Greensboro, North Carolina, for Appellees.

Before MURNAGHAN, HAMILTON, and LUTTIG, Circuit Judges.

PER CURIAM:

1

Appellant appeals the magistrate judge's order granting summary judgment to the Appellees. This case was before the magistrate judge without the express consent of both parties. The district court inferred the parties' consent to the jurisdiction of the magistrate judge pursuant to 28 U.S.C. Sec. 636(c) (1988), because the parties failed to expressly decline such jurisdiction by notifying the clerk of the court. Consent must be clear and unambiguous because consent is "the linchpin of the constitutionality of 28 U.S.C. Sec. 636(c)."1 Further, the parties "are free to withhold consent without adverse substantive consequences."2 The district court's action of inferring the parties' consent because they failed to decline the jurisdiction of the magistrate judge does not protect the voluntariness of their consent.3

2

Because both parties never affirmatively consented to the jurisdiction of the magistrate judge, magistrate judge's order is not an appealable final order. Accordingly, we dismiss the appeal for lack of jurisdiction. This dismissal is without prejudice to the filing of a notice of appeal from any final, appealable order entered by the district court. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

DISMISSED

1

Adams v. Heckler, 794 F.2d 303, 307 (7th Cir.1986)

2

Id

3

See Wimmer v. Cook, 774 F.2d 68, 76 (4th Cir.1985)