1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 E.D., et al., Case No. 20-cv-03014-SK (JSW)

8 Plaintiffs,

ORDER DENYING MOTION TO

9 v. WITHDRAW MAGISTRATE JUDGE

CONSENT

10 COUNTY OF CONTRA COSTA, et al., Re: Dkt. No. 149 Defendants. 11

12 13 Now before the Court for consideration is Plaintiff’s motion to withdraw consent to 14 magistrate jurisdiction. The Court has considered the papers, relevant legal authority, and the 15 record in the case, and it finds this motion suitable for disposition without oral argument. See 16 N.D. Civ. L.R. 7-1(b). For the following reasons, the Court DENIES Plaintiff’s motion. 17 BACKGROUND 18 Plaintiff and his father, Oleksiy Demidov, filed this action on May 1, 2020. (Dkt. No. 1.) 19 The case was assigned to Magistrate Judge Sallie Kim. (Dkt. No. 6.) On May 8, 2020, Plaintiff’s 20 counsel signed and filed a consent to magistrate jurisdiction through his then-proposed guardian 21 ad litem Demidov. (Dkt. No. 7.) The case progressed, and eventually Demidov was dismissed as 22 a party. (Dkt. No. 27.) A substitution of Plaintiff’s counsel occurred, and Patricia Barraza was 23 appointed as Plaintiff’s guardian ad litem on September 15, 2020. (Dkt. Nos. 30, 33.) 24 On February 1, 2021, the parties submitted a joint case management statement, in which 25 the parties expressly stated that they “consented to Magistrate Judge Sallie Kim.” (Dkt. No. 44, ¶ 26 13.) The parties submitted two additional joint case management statements affirming their 27 consent to Judge Kim. (See Dkt. No. 72, ¶ 13; Dkt. No. 82, ¶ 13.) 1 complaint and permitted Plaintiff to add two new defendants, Mira Yune and Mario Bandes, to his 2 existing state law negligence claim. (Dkt. No. 117.) Plaintiff filed the second amended complaint 3 on December 21, 2021. (Dkt. No. 118.) Defendants Yune and Bandes appeared and filed a 4 motion to dismiss on January 28, 2022. (Dkt. No. 139.) 5 On January 31, 2022, Judge Kim held a case management conference. At the case 6 management conference, the parties set a trial date, and Judge Kim stated that Plaintiff would not 7 be allowed to introduce certain documents that were previously excluded at trial. The day after 8 the case management conference, Plaintiff filed a declination of consent to magistrate jurisdiction 9 form through Barraza as guardian ad litem. (Dkt. No. 142.) Judge Kim ordered Plaintiff to file a 10 motion to withdraw consent by no later than February 15, 2022. (Dkt. No. 144.) That same day, 11 Yune and Bandes filed a written consent to magistrate jurisdiction. (Dkt. No. 145.) 12 Plaintiff filed a motion to withdraw consent to magistrate jurisdiction on February 15, 13 2022. (Dkt. No. 149.) Defendants opposed, and Plaintiff filed a reply. On March 9, 2022, Judge 14 Kim issued an order referring Plaintiff’s motion to a district judge for disposition. (Dkt. No. 153.) 15 On March 10, 2022, the motion was randomly referred to the undersigned. (Dkt. No. 155.) 16 ANALYSIS 17 A. The Court Denies Plaintiff’s Motion to Withdraw Consent. 18 Plaintiff moves to withdraw his consent to magistrate jurisdiction on the basis that (1) 19 Plaintiff never consented to magistrate jurisdiction through his guardian ad litem Barraza, and (2) 20 even if Barraza consented to magistrate jurisdiction, defendants Yune and Bandes did not consent 21 to magistrate jurisdiction at the time Plaintiff sought to withdraw consent. 22 If all parties to a civil action consent, all proceedings including trial and entry of judgment 23 may be conducted by a magistrate judge. 28 U.S.C. § 636(c)(1); Branch v. Umphenour, 936 F.3d 24 994, 1000 (9th Cir. 2019). Under both the United States Code and the Federal Rules of Civil 25 Procedure, once a civil case is referred to a magistrate judge under 28 U.S.C. section 636(c) 26 (“Section 636(c)”), the reference can be withdrawn by the court only “for good cause on its own 27 motion, or under extraordinary circumstances shown by any party.” 28 U.S.C. § 636(c)(4); Fed. 1 are high bars that are difficult to satisfy. Branch, 936 F.3d at 1004. “Neither mere dissatisfaction 2 with a magistrate judge's decisions, nor unadorned accusations that such decisions reflect judicial 3 bias, will suffice.” Id. A motion to withdraw consent or reference is to be decided by the district 4 judge, not the magistrate judge. Id. at 1003. 5 Plaintiff first argues that he never consented to magistrate jurisdiction through his 6 guardian ad litem Barraza. To be effective, a party’s consent to magistrate jurisdiction need not 7 follow a specific form or be express. Allen v. Centillium Communs, Inc., No. C-06-06153 (EDL), 8 2008 U.S. Dist. LEXIS 49328, at *3 (N.D. Cal. June 17, 2008) (citing Roell v. Withrow, 538 U.S. 9 580, 586-87 (2003). 10 Here, Plaintiff expressly and impliedly consented to magistrate jurisdiction. Plaintiff 11 expressly consented to magistrate jurisdiction in three joint case management statements. (See 12 Dkt. Nos. 44, 72, 82.) Consent through a joint case management statement is “more than 13 adequate.” Allen, 2008 U.S. Dist. LEXIS, at *3. Moreover, the general rule that a client is bound 14 by the acts of his attorney applies to an attorney’s consent to proceed before a magistrate judge. 15 Id. (citing Frank v. County of Hudson, 962 F. Supp. 41, 43 (D.N.J. 1997). For this reason, the 16 declaration of Barraza filed in connection with Plaintiff’s motion does not invalidate the express 17 consent to magistrate jurisdiction given by and through Plaintiff’s counsel in the joint case 18 management statements. (See Dkt. No. 149-2, Declaration of Patricia Barraza.) Plaintiff does not 19 address the joint case management statements or offer any argument for why the Court should not 20 accept these statements of consent, and the Court sees none. Thus, Plaintiff, through guardian ad 21 litem Barraza, expressly consented to magistrate jurisdiction on at least three occasions. Plaintiff 22 also implicitly consented to magistrate jurisdiction through his conduct by extensively litigating 23 the case and agreeing to a trial date before Judge Kim. See Allen, 2008 U.S. Dist. LEXIS 49328, 24 at*3. For these reasons, the Court finds that Plaintiff consented to magistrate jurisdiction. 25 Plaintiff next argues that because Defendants Yunes and Bandes did not consent to 26 magistrate jurisdiction prior to the filing of Plaintiff’s declination of consent on February 1, 2022, 27 a showing of good cause to withdraw consent is not required. Plaintiff argues that under Gilmore 1 magistrate jurisdiction. 936 F.3d 857 (9th Cir. 2019). 2 The Court finds Plaintiff’s argument unconvincing. At the time Plaintiff filed the motion 3 to withdraw consent on February 15, 2022, Yune and Bandes had already filed a written consent 4 to magistrate jurisdiction. Contrary to Plaintiff’s assertion, the earlier filing of the declination 5 form did not constitute an effective withdrawal of Plaintiff’s consent to magistrate jurisdiction. 6 Rather, the court required Plaintiff to submit a motion to withdraw consent so that a district judge 7 could consider the request. See Stuckey v. Juarez, No. 1:18-cv-01557-SAB(PC), Dkt. No. 40 pp. 8 1-2 (E.D. Cal. Mar. 19, 2020) (finding it insufficient for a plaintiff who previously consented to 9 magistrate judge jurisdiction to withdraw consent by filing a consent form and instead requiring 10 the plaintiff file a motion to withdraw consent). Thus, all parties had consented to magistrate 11 jurisdiction when Plaintiff moved to withdraw consent.1 12 For this reason, Plaintiff’s reliance on Gilmore is misplaced. The magistrate judge in 13 Gilmore had jurisdiction pursuant to Section 636(b) to address certain pretrial motions. 936 F.3d 14 at 860. The plaintiff sought to withdraw his consent to magistrate jurisdiction following the 15 judge’s adverse ruling on a motion to compel. Id. The magistrate judged applied the good cause 16 standard set forth in Section 636(c)(4) and denied the plaintiff’s motion. Id. at 861. The Ninth 17 Circuit disagreed with the magistrate judge’s decision and found that “a party need not satisfy the 18 good cause or extraordinary circumstances standard provided in § 636(c)(4) in order to withdraw 19 consent before all parties have consented.” Id. at 863. The Ninth Circuit directed that in those 20 instances, a district court should use its discretion to determine a request to withdraw consent. Id. 21 Here, unlike in Gilmore, all parties consented to magistrate jurisdiction before Plaintiff filed his 22 motion to withdraw consent. 23 Because all parties consented to magistrate jurisdiction, the Court will consider whether 24 Plaintiff has shown either “good cause” or “extraordinary circumstances” to withdraw consent. 25 Branch v. Umphenour, 936 F.3d 994, 1004 (9th Cir. 2019) (citing 28 U.S.C. § 636(c)(4)). 26 1 Even if the Court were to construe Plaintiff’s February 1st filing as a motion to withdraw 27 consent, Yunes and Bandes had already appeared and filed a motion to dismiss before Judge Kim ] Plaintiff has not met the high bar required to show good cause or extraordinary circumstances 2 || exist to withdraw consent. Apart from arguing that the good cause standard should not apply to 3 his request, Plaintiff does not address the standard at all. Nor does the record support a finding 4 || that extraordinary circumstances exist warranting withdrawal of consent. Thus, the Court finds 5 || that neither good cause nor extraordinary circumstances weigh in favor of permitting the 6 || withdrawal of consent and reassignment of the case to a district judge.” Plaintiffs motion is 7 || DENIED. 8 B. The Court Will Not Impose Sanctions on Plaintiff. 9 Defendants argue that Plaintiffs attempt to withdraw magistrate jurisdiction consent 10 || constitutes a sanctionable abuse of the judicial process. Defendants contend that Plaintiff is 11 attempting to “judge shop” following Judge Kim’s imposition of sanctions and denial of Plaintiffs a 12 motion for leave to amend. Based on the record before it, the Court cannot conclude that «13 Plaintiff's motion is an improper attempt to judge shop, and it declines to impose sanctions on this

14 || basis. 15 CONCLUSION A 16 For the foregoing reasons, Plaintiffs motion to withdraw consent to magistrate jurisdiction

17 || is DENIED. 18 IT IS SO ORDERED. 19 || Dated: April 5, 2022 /} 20 \ l □□ / uy ~

JEFFREY/S. WHITE

2] United Sthtes strict Judge 22 23 24 25 26 || 2 The Court notes that even if it adopted the discretionary approach advanced by Plaintiff, the 27 || Outcome would not change. Given the length of time this case has been pending before Judge Kim, her rulings on substantive issues, and the parties’ willingness to participate in proceedings 2g || before Judge Kim without objection until now, the exercise of discretion weighs against reassignment in this case.