Alden E. Serine v. Oakley Peterson, Cecil Quesseth, Arloe Quesseth, and State of Oregon Right of Way Department
Opinion
Opinion
ORDER
Appellees move to dismiss this appeal from a magistrate judge’s order for lack of appellate jurisdiction. We grant the motion.
On December 1, 1992, Magistrate Judge Thomas M. Coffin filed a document entitled “Findings and Recommendation and Order” in this case, indicating that the “defendants’ motion to dismiss should be allowed and this action dismissed.” On December 10, 1992, plaintiff filed his response to the magistrate judge’s order with the district court. Without any further action by the magistrate judge or the district court, on December 30, plaintiff filed this notice of appeal. Then, on January 8,1993, the district court adopted the magistrate judge’s findings and recommendation and entered judgment for the defendants. Plaintiff did not file another notice of appeal after final judgment was entered.
Defendants now move to dismiss the appeal. They contend that a magistrate judge’s recommendation of dismissal does not constitute a final, appealable order absent consent by the parties, and therefore that the notice of appeal was premature and ineffective. See, e.g., 28 U.S.C. § 636 (c)(1); In re San Vicente Medical Partners Ltd., 865 F.2d 1128 (9th Cir.1989);…