Milligan Ex Rel. I.L.M. v. W & M Properties, Inc. ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-2062
JOHNNY L. MILLIGAN, individually and on behalf
of I.L.M. (minor) and I.L.M. (minor); CAROLYN
A. MILLIGAN,
Plaintiffs - Appellants,
versus
W&M PROPERTIES, INCORPORATED OF VIRGINIA,
d/b/a Merrifield Village Apartment Company;
ANDREW GREENLEAF LAWRENCE,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, District
Judge. (CA-04-1517)
Submitted: January 31, 2006 Decided: March 7, 2006
Before NIEMEYER and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed and remanded by unpublished per curiam opinion.
Johnny L. Milligan, Carolyn A. Milligan, Appellants Pro Se.
Jennifer Ann Guy, John David Wilburn, MCGUIREWOODS, LLP, McLean,
Virginia, for Appellee W&M Properties; Andrew Greenleaf Lawrence,
Fairfax, Virginia, Appellee Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
Johnny L. and Carolyn A. Milligan appeal from the
magistrate judge’s order denying their motion for a ruling on their
motion for sanctions pursuant to Fed. R. Civ. P. 11(b)(3). Because
we find that the magistrate judge did not have authority to enter
a final, appealable order on this matter, we dismiss the appeal
without prejudice for lack of jurisdiction and remand to the
district court for further proceedings.
Pursuant to 28 U.S.C. § 636(c) (2000), a magistrate judge
may enter a final order directly appealable to the court of appeals
upon consent of all parties. Otherwise, under § 636(b), a district
court must initially review the magistrate judge’s order or
proposed findings under either a de novo or clearly erroneous
standard of review depending upon the nature of the ruling
appealed. Absent an express adoption, modification, or rejection
of the magistrate judge’s ruling by the district court, the ruling
is generally not reviewable by the court of appeals. See
Reynaga v. Cammisa, 971 F.2d 414, 416-18 (9th Cir. 1992).
In this case, we find nothing in the record showing that
the parties agreed to have the motion for sanctions decided by the
magistrate judge. As a result, the magistrate judge lacked the
authority to enter a final order terminating the case. See
Gleason v. Sec’y of Health & Human Serv., 777 F.2d 1324 (8th Cir.
1985). Accordingly, we dismiss this appeal and remand to the
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district court for further proceedings. See Massey v. City of
Ferndale, 7 F.3d 506, 510-11 (6th Cir. 1993) (dismissing appeal
from unauthorized order issued by magistrate judge but remanding to
district court for corrective action). 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 AND REMANDED
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