Benton Ned Bass v. Johnny W. Evans ( 1986 )

793 F.2d 1290

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
BENTON NED BASS, Plaintiff-Appellant,
v.
JOHNNY W. EVANS, Defendant-Appellee.

86-5023

United States Court of Appeals, Sixth Circuit.

5/5/86

APPEAL DISMISSED

W.D.Tenn.

ORDER

BEFORE: ENGEL, CONTIE and MILBURN, Circuit Judges.

1

On July 30, 1985, the parties consented to a magistrate conducting all proceedings in this breach of contract and securities fraud case with an appeal to the district court. On December 17, 1985, judgment (by the magistrate) was entered in favor of appellees Evans and Agape Log Homes, Inc. It is from that judgment that appellant Bass appeals.

2

The consent form, signed by appellant's attorney, clearly indicates that appellant consented to the magistrate's plenary jurisdiction with an appeal to the district court. According to the provisions of the Federal Magistrate's Act, an appeal may be prosecuted to this Court only by a petition for leave to appeal. 28 U.S.C. Sec. 636(c)(5); see also Rule 73(d), Federal Rules of Civil Procedure. Appellant has filed no such petition herein.

3

If the Court construes the notice of appeal as a petition to appeal pursuant to 28 U.S.C. Sec. 636(c)(5), the petition would fall short of the requirements of Penland v. Warren County Jail, 759 F.2d 524, 530 (6th Cir. 1985) (en banc), which requires: (1) a copy of the statement in which the parties consented to the exercise of plenary jurisdiction by the magistrate and to having the appeal as a right lie to the district court; (2) a concise statement of the case containing facts material to the questions presented; (3) a statement of specific objections to the judgment and a concise argument relating to each objection; and (4) an appendix containing the district court Docket Sheet, copies of the final judgments of the district court and the magistrate, copies of opinions rendered with the judgments and a copy of any part of the record referred to in the petition. Appellant failed to meet any of these requirements.

4

For the foregoing reasons, it is ORDERED that the appeal be dismissed.