Harry Smith v. Francis Rebstock

GLD-258 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
Nos. 12-2722 & 12-3000
___________
HARRY F. SMITH,
Appellant
v.
FRANCIS F. REBSTOCK; EUGENE EDWARD T. MAIER; DAMIEN SAMMONS;
KATHERINE LEWIS; FELINA GUSTOSON
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania of
(D.C. Civil No. 2-10-cv-01515)
District Judge: Honorable Gene E. K. Pratter
____________________________________
Submitted for Possible Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P.
10.6
August 16, 2012
Before: FUENTES, GREENAWAY, JR., and BARRY, Circuit Judges
(Opinion filed: September 12, 2012)
_________
OPINION
_________
PER CURIAM
Harry F. Smith, proceeding pro se, appeals from two orders of the District Court.
For the reasons that follow, we will summarily affirm.
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Because we write primarily for the parties, who are fully familiar with the
background of this case, we set forth only the facts and procedural history that are of
central relevance to our decision. Smith filed a pro se civil rights complaint in District
Court against five defendants, including Assistant District Attorney Damien Sammons
and Philadelphia Department of Human Services social worker Felina Gustoson.
According to the complaint, Smith had been charged with various sex offenses in state
court; a jury found him not guilty of all criminal charges in April 2009. Smith then filed
the civil rights suit against the defendants related to his prosecution. The District Court
granted Smith leave to proceed in forma pauperis. The U.S. Marshals Service effected
service, or attempted to effect service, of the complaint, but was unable to locate and
serve defendants Gustoson and Sammons. The three served defendants subsequently
moved for dismissal of the claims against them. The District Court granted their motions
for dismissal, and we affirmed those decisions.
Most recently, the District Court denied Smith’s requests for entry of default
judgment against defendants Gustoson and Sammons and vacated the referral to the
magistrate judge. Smith timely appealed both of these orders.
We review for abuse of discretion the denial of Smith’s requests for default
judgment against the two defendants upon whom the U.S. Marshals Service was unable
to effect service. See Chamberlain v. Giampapa, 210 F.3d 154, 164 (3d Cir. 2000). We
find none here. The District Court properly explained that a default judgment cannot be
entered on a complaint that has not been validly served. See Petrucelli v. Bohringer and
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Ratzinger, 46 F.3d 1298, 1304 (3d Cir. 1995) (citing Gold Kist, Inc. v. Laurinburg Oil
Co., 756 F.2d 14, 19 (3d Cir. 1985)).
Smith also appeals the order vacating referral of the case to a magistrate judge.
The District Court designated the Magistrate Judge to preside over the case pursuant to
Section 636(b)(1)(A). Under Section 636(b), “magistrates may be designated to . . . hear
and determine any pretrial matter, except for eight categories of ‘dispositive’ pretrial
matters; and conduct hearings and recommend dispositions with regard to the eight
excepted matters.” Taberer v. Armstrong World Indus., Inc., 954 F.2d 888, 902 (3d Cir.
1992). During the pendency of Smith’s lawsuit, the Magistrate Judge issued only non-
dispositive orders, such as the one directing Smith to file a response to a motion to
dismiss, while the District Court Judge decided all dispositive motions, such as the
motions to dismiss. Section 636(b) contains no limitation on a district court’s power to
resume control over a case that has previously been referred to a magistrate judge. See
28 U.S.C. § 636(b); see also United States v. Wecht, 484 F.3d 194, 217 (3d Cir. 2007)
(holding that district courts have wide discretion in the management of their cases). In
vacating the referral under Section 636(b), the District Court was not required to make
any showing of good cause or extraordinary circumstances in order to do so.
Accordingly, we reject any contention that the District Court committed error under
Section 636.
Smith’s submissions include statements largely irrelevant to the matters before us,
but one of his assertions deserves mention. Smith argues that we did not have
jurisdiction to decide his prior appeal of the decisions granting the motions to dismiss
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because all matters were not resolved as to all parties. As we noted in our decision,
however, the two defendants who never were served were not made parties to the suit
and, thus, even though the District Court did not adjudicate the claims against these two
defendants, its orders were final and appealable. See De Tore v. Local #245 of the Jersey
City Pub. Emps. Union, 615 F.2d 980, 982 n.2 (3d Cir. 1980); United States v. Studivant,
529 F.2d 673, 674 n.2 (3d Cir. 1976).
Because neither appeal currently before us presents a substantial question, we will
summarily affirm the District Court’s orders entered May 18, 2012, and June 14, 2012.
See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.
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