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Glendora v. Press

November 2, 2007

GLENDORA, PLAINTIFF,
v.
ERIC W. PRESS, DEFENDANT.



The opinion of the court was delivered by: Norman A. Mordue, Chief U.S. District Judge

DECISION AND ORDER

I. Background

Currently before the Court is a motion from plaintiff Glendora (1) objecting to the Order signed by Magistrate Judge Randolph F. Treece striking plaintiff's motion for default judgment (Dkt. No. 5 at 1-25); (2) objecting to the return of certain papers she submitted to the Clerk of the Court and seeking a refund of the filing fee (id. at 26-32) and (3) for reconsideration of this Court's Order dated October 9, 2007. Id. at 33-97. In addition to these requests, plaintiff has included in her submission what appear to be discovery requests, or notices to admit, addressed to Magistrate Judge Treece, the Clerk of the Court, and the undersigned. See Dkt. No. 5 at 3-11, 18-23, 25-29, 37-61, and 67-97.

Plaintiff commenced this action by filing a pro se Complaint against defendant Press, a City Court Judge in the City of White Plains, New York, regarding plaintiff's dissatisfaction with court proceedings presided over by Judge Press in August 2007. See Dkt. No. 1. In its October 9, 2007 Order, the Court found that:

With respect to Eric Press, the law in this Circuit clearly provides that "[j]udges enjoy absolute immunity from personal liability for 'acts committed within their judicial jurisdiction.' " Young v. Selsky, 41 F.3d 47, 51 (2d Cir. 1994) (emphasis added) (quoting Pierson v. Ray, 386 U.S. 547 (1967)). "The absolute immunity of a judge applies however erroneous the act may have been, and however injurious in its consequences it may have proved to the plaintiff." Young, 41 F.3d at 51 (internal quotations omitted).

Dkt. No. 3 at 2. Accordingly, Judge Press was dismissed as a party to this action. Id. at 3. In light of plaintiff's pro se status, and because it was unclear whether plaintiff was attempting to assert claims against other parties,*fn1 plaintiff was provided with an opportunity to submit an amended complaint to the Court. Id. After submitting her original complaint, plaintiff also submitted to the Court for filing a motion seeking default judgment against defendant Press. By Order of Magistrate Judge Randolph F. Treece filed on October 10, 2007, plaintiff's motion for default judgment was stricken from the docket as prematurely filed because defendant Press had yet to be served with the summons and complaint. Dkt. No. 4. Plaintiff has now submitted the present motion. Dkt. No. 5.

II. Discussion

A. Objection to Magistrate Judge Treece's Order

Plaintiff objects to the Order of Magistrate Judge Treece filed on October 10, 2007, see Dkt. No. 4, which directed that plaintiff's motion for default judgment be stricken from the docket as premature. Dkt. No. 5 at 5-23. Federal Rule of Civil Procedure ("Fed. R. Civ. P.") 72(a) states:

Within ten (10) days after being served with a copy of the magistrate judge's order [on a nondispositive issue], a party may serve and file objections to the order; a party may not thereafter assign as error a defect in the magistrate judge's order to which objection was not timely made. The district judge to whom the case is assigned shall consider such objections and shall modify or set aside any portion of the magistrate judge's order found to be clearly erroneous or contrary to law.

Fed. R. Civ. P. 72(a).

The Court has reviewed the Order dated October 10, 2007, and finds that it is not clearly erroneous or contrary to law. See 28 U.S.C. § 636(b)(1)(A). Plaintiff contends that her motion for a default judgment against defendant Press was not premature because she herself served defendant Press by first class mail on August 22, 2007, with a copy of her complaint and two copies of a waiver of service. Dkt. No. 5 at 18. Plaintiff's argument is wholly without merit. In the first instance, plaintiff's "service" was itself premature since plaintiff did not actually commence this action until September 9, 2007. Moreover, plaintiff does not allege that defendant Press actually signed and returned the waiver of service to plaintiff. While failure to sign and return a waiver of service may result in a defendant later incurring costs for personal service, such failure does not subject the recalcitrant defendant to the jurisdiction of the Court and does not constitute service. See Fed. R. Civ. P. 4(d)(2). In order to obtain jurisdiction over a defendant who has not signed a waiver of service, a plaintiff is required to actually serve the defendant with a summons and complaint; something that plaintiff in this case did not do. See Fed. R. Civ. P. 4.

Besides objecting to the terms of Magistrate Judge Treece's Order itself, plaintiff seems to object to Magistrate Judge Treece's jurisdiction to take action in this case. Plaintiff challenges Judge Treece's jurisdiction on the basis that she did not consent in writing to having a magistrate judge act in her case. Plaintiff's argument is misplaced. While it is true that a magistrate judge has no authority to deal with dispositive matters in an action unless all of the parties to the action consent to such jurisdiction in writing, see 28 U.S.C.§ 636(c), the same does not hold true as to non-dispositive matters. 28 U.S.C. § 636(b)(1)(A) states that, with certain exceptions not relevant to the present discussion, "a judge may designate a magistrate judge to hear and determine any pretrial matter pending ...


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