Wheeler v. American Heritage Bank

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
April 11, 2006
FOR THE TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
BRENNAN WHEELER,
Plaintiff-Appellant,
v. No. 04-2251
(D.C. No. CIV-04-271 WJ-LFG)
AMERICAN HERITAGE BANK; (D. N.M.)
BOB SELLERS,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before TYMKOVICH, McKAY, and BALDOCK, Circuit Judges.
Brennan Wheeler, acting through her counsel, attorney Mike Bello, filed a
complaint against the above-named defendants in the United States District Court
for the District of New Mexico, alleging that defendants had violated certain
federal and state consumer protection acts in connection with the sale of a motor
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
vehicle to Wheeler. In accordance with the District of New Mexico’s standard
practice in civil cases, Wheeler’s case was referred to a magistrate judge, and,
pursuant to 28 U.S.C. § 636(b)(1)(A), the magistrate judge “ha[d] complete
authority and jurisdiction to determine and issue orders with regard to all non-
dispositive issues including scheduling, discovery and settlement.” Memorandum
Opinion and Order Overruling Plaintiff’s Objections to Magistrate Judge’s
Discovery and Scheduling Order (R., Doc. 16 at 6); see also Niehaus v. Kansas
Bar Ass’n, 793 F.2d 1159, 1164 (10th Cir. 1986) (“Section 636(b)(1)(A) . . .
provides that a judge may request that a magistrate hear pre-trial matters pending
before the judge, including discovery motions.”).
Exercising his authority under § 636(b)(1)(A), the magistrate judge
subsequently entered an order directing Wheeler and Bello “to show cause . . .
why . . . sanctions . . . should not be entered as a result of their non-compliance
with the mandatory disclosure requirements of Fed. R. Civ. P. 26, the district
court’s local rule, D.N.M.LR-Civ. 26.3(d), and the specific directive given to
Bello at the Rule 16 conference.” R., Doc. 34 at 1. The magistrate judge further
directed Wheeler and Bello “to show cause why an award of costs and attorney
fees should not be entered against them as a result of their non-compliance.” Id.
Wheeler and Bello subsequently filed a response to the show cause order, and the
magistrate judge also held a show cause hearing.
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On August 17, 2004, the magistrate judge entered a memorandum opinion
and order (order) concerning the show cause order, concluding as follows:
The Court concludes that Wheeler’s and Bello’s failure to comply
with mandatory disclosure obligations, failure to comply with the
Court’s explicit directive to provide disclosures within ten days, and
failure to provide disclosures under Rule 26.3(d) all violate the
Federal Rules of Civil Procedure, the local rules of procedure and the
Court’s explicit directive. The Court determines that sanctions
should be imposed as a result of the violation.
Id. at 4. To remedy the disclosure violations, the magistrate judge ordered
Wheeler to fully comply with D.N.M.LR-Civ. 26.3(d) within ten days. Id. at 8.
The magistrate judge also imposed a monetary sanction of $2,000, plus certain
additional costs, against Bello, individually, and Bello was directed to pay the
monetary sanction to counsel for defendants within thirty days. Id. Neither
Wheeler nor Bello subsequently complied with the magistrate judge’s orders. As
a result, on October 29, 2004, the district judge, acting on the recommendation of
the magistrate judge, entered an order and a related final judgment dismissing
Wheeler’s lawsuit with prejudice “as a sanction for [her] repeated defiance of
orders and rules of the Court.” Id., Doc. 53 at 4; Doc. 54.
Wheeler has not filed an appeal in this court to challenge the district
judge’s October 29, 2004 dismissal order and the related final judgment. Instead,
following the entry of the magistrate judge’s August 17, 2004 order, Wheeler did
two things. First, on September 1, 2004, Wheeler filed timely objections under
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Fed. R. Civ. P. 72(a) to the August 17, 2004 order, and she requested that the
district judge vacate or modify the order. Id., Doc. 36 at 1. Second, on
September 17, 2004, before the district judge had ruled on her Rule 72(a)
objections, Wheeler filed a “Notice of Appeal” in this court, stating that she was
appealing from the magistrate judge’s August 17, 2004 order. Id., Doc. 41 at 1.
On November 3, 2004, Wheeler also submitted a “Brief to Show Jurisdiction” to
this court. In her jurisdictional brief, Wheeler stated that she was applying to this
court “to consider the notice of appeal and her brief as an application for writ of
mandamus under the All Writs Act 28 U.S.C. 1651 directed to the district court to
consider the objection to the [August 17, 2004] magistrate order and issue its
opinion.” Aplt. Jurs. Br. at 23.
We conclude that we do not have jurisdiction to consider Wheeler’s
challenge to the magistrate judge’s August 17, 2004 order. As set forth above,
the magistrate judge’s authority to enter the order was derived from 28 U.S.C.
§ 636(b)(1)(A), and, as this court has previously explained:
Under § 636(b)(1)(A), a magistrate judge may not issue a final order
directly appealable to the court of appeals. Niehaus v. Kansas Bar
Ass’n, 793 F.2d 1159, 1164-65 (10th Cir. 1986); Reynaga v.
Cammisa, 971 F.2d 414, 416 (9th Cir. 1992). Properly filed
objections resolved by the district court are a prerequisite to our
review of a magistrate judge’s order under § 636(b)(1)(A). Moore v.
United States, 950 F.2d 656, 659 (10th Cir. 1991); Boyd Motors, Inc.
v. Employers Ins. of Wausau, 880 F.2d 270, 271 (10th Cir. 1989) (per
curiam); Niehaus, 793 F.2d at 1165.
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Hutchinson v. Pfeil, 105 F.3d 562, 566 (10th Cir. 1997). In other words, “appeals
from magistrates’ rulings [under § 636(b)(1)(A)] must be to the district courts and
. . . appellate courts are without power to hear appeals directly from orders of
federal magistrates.” 1 Niehaus, 793 F.3d at 1165.
We further conclude that Wheeler’s request for mandamus relief is moot.
As noted above, Wheeler made her request for mandamus relief in the
jurisdictional brief that she submitted to this court on November 4, 2004. At that
time, however, the district judge had already dismissed Wheeler’s lawsuit with
prejudice and entered a final judgment in favor of defendants. See R., Docs. 53
and 54. As a result, if Wheeler wanted to challenge the district judge’s failure to
rule on the objections that she submitted to the magistrate judge’s August 17,
2004 order, the proper course of action would have been to appeal from the
district judge’s dismissal order and the related final judgment. Cf. Cole v.
Ruidoso Mun. Schools, 43 F.3d 1373, 1383 n.7 (10th Cir. 1994) (“‘[A] notice of
appeal that names the final judgment is sufficient to support review of all earlier
orders that merge in the final judgment under the general rule that appeal from a
final judgment supports review of all earlier interlocutory orders.’”) (quoting 16
1
In addition, because the district judge never entered an order regarding the
matters that were addressed by the magistrate judge in his August 17, 2004 order,
the collateral order doctrine of Cohen v. Beneficial Indus. Loan Corp., 337 U.S.
541 (1949) is inapplicable here. Wheeler’s reliance on that doctrine is therefore
misplaced.
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Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and
Procedure § 3949 at 440 (Supp. 1994)). As noted above, Wheeler has not filed
such an appeal, and it is well established that “[t]he extraordinary relief of a writ
of mandamus is not a substitute for an appeal.” Weston v. Mann (In re Weston),
18 F.3d 860, 864 (10th Cir. 1994).
This appeal is DISMISSED for lack of jurisdiction. Wheeler’s request for
mandamus relief is DENIED as moot.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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