Fleming v. Town of Rancho Viejo ( 1996 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-40428
TOM FLEMING,
Plaintiff-Appellee,
versus
TOWN OF RANCHO VIEJO, TEXAS, ET AL.,
Defendants,
TOWN OF RANCHO VIEJO, TEXAS,
Defendant-Appellant,
versus
GASPAR ALVAREZ HERNANDEZ,
Intervenor Defendant-
Appellee.
Appeal from the United States District Court for the
Southern District of Texas
(B-90-CV-152)
December 9, 1996
Before REAVLEY, GARWOOD and BENAVIDES, Circuit Judges.*
*
Pursuant to Local Rule 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
PER CURIAM:
As defendant-appellant correctly points out, the magistrate
judge, who purported to enter a final judgment in this case, lacked
jurisdiction to do so because several of the parties, including the
defendant Town of Rancho Viejo and the five individual defendants
other than Halleman, did not consent to entry of judgment by the
magistrate judge as provided in 28 U.S.C. § 636(c)(1) and Fed. R.
Civ. P. 73(b). This was pointed out below by objections to the
magistrate judge’s purported judgment. We note that although
individual defendant Halleman did consent, and was the mayor of the
Town of Rancho Viejo, he did not purport to consent on its behalf,
or sign the consent as “Mayor,” or otherwise than simply in his own
name. See EEOC v. West La. Health Services, Inc., 959 F.2d 1277,
1281-82 (5th Cir. 1992); Caprera v. Jacobs, 790 F.2d 442, 445-46
(5th Cir. 1986); Parks v. Collins, 761 F.2d 1101, 1106 (5th Cir.
1985). Accordingly, the purported final judgment entered by the
magistrate judge is vacated and the cause is remanded.
VACATED and REMANDED
2