January 22, 2018 Top Story

Magistrate May Not Dismiss Without Consent of Unserved Defendant

Posner, in one of the last dissents, writes, “A bigger waste of time … is thus hard to imagine”

By Candice A. Garcia-Rodrigo

A divided federal court of appeals widens a circuit split and restricts a magistrate judge's authority to dismiss cases, absent consent of all parties, even unserved defendants. ABA Section of Litigation leaders caution against a wide applicability of this case, due to its pro se, in forma pauperis status. They urge litigators to consider, however, the potential use in other contexts of the case's definition of "party."

An employee stipulated to a dismissal of his initial complaint for wrongful termination based on discrimination filed in U.S. District Court for the Eastern District of Wisconsin. The employee then filed a claim in the state Labor and Industry Review Commission's Equal Rights Division. The administrative law judge dismissed the case for the employee's failure to meet deadlines. The employee finally filed his second pro se suit in federal court claiming the commission denied him due process rights. He requested permission to proceed in forma pauperis (IFP) and consented to an Article I magistrate judge deciding the case.

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