Robert & Nina Puryear v. Ede's Ltd., Etc., Charles Eilert and Edith Eilert, Individually

731 F.2d 1153

Robert & Nina PURYEAR, Plaintiffs-Appellees,
v.
EDE'S LTD., etc., et al., Defendants,
Charles Eilert and Edith Eilert, individually, Defendants-Appellants.

No. 83-4312

Summary Calendar.

United States Court of Appeals,
Fifth Circuit.

April 30, 1984.

Clyde Hurlbert, Biloxi, Miss., for defendants-appellants.

Acevedo & Tisdale, Robert M. Acevedo, Biloxi, Miss., for plaintiffs-appellees.

Appeal from the United States District Court for the Southern District of Mississippi.

Before TATE, GARWOOD and HIGGINBOTHAM, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

1

After consent by all parties, this diversity case was referred to a magistrate for trial and the entry of final judgment. 28 U.S.C. Sec. 636(c). Appellants, relying on Pacemaker Diagnostic Clinic of America, Inc. v. Instromedix, 712 F.2d 1305 (9th Cir.1983), claim that magistrates in trying such cases exercise powers reserved under the Constitution to Article III judges.

2

Pacemaker, however, was vacated en banc, 725 F.2d 537 (9th Cir.1984) (en banc). That court found Sec. 636(c) of the Magistrates Act saved from any constitutional infirmity by its requirement that all parties consent to such transfer and by the power of the district court to vacate the reference to the magistrate on its own motion. Sec. 636(c)(1), (6). Each circuit facing this question has reached a similar conclusion. Goldstein v. Kelleher, 728 F.2d 32 (1st Cir.1984); Collins v. Foreman, 729 F.2d 108 (2d Cir.1984); Wharton-Thomas v. United States, 721 F.2d 922 (3d Cir.1983).

3

For essentially the reasons stated by our sister circuits, we find that Sec. 636(c) of the Magistrates Act does not suffer the asserted constitutional infirmity. We publish only part II of this opinion because this breach of contract case otherwise presents no issues of precedential value.

4

AFFIRMED.