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Zerega Avenue Realty Corp. and Fred Todino & Sons, Inc v. Hornbeck Offshore Transportation

January 10, 2011

ZEREGA AVENUE REALTY CORP. AND FRED TODINO & SONS, INC., PLAINTIFFS,
v.
HORNBECK OFFSHORE TRANSPORTATION, LLC, DEFENDANT.



The opinion of the court was delivered by: Wood, U.S.D.J.:

Opinion & Order

Defendant Hornbeck Offshore Transportation, LLC ("Hornbeck") has moved to vacate the reference of the above-captioned matter to a Magistrate Judge (hereinafter "motion to vacate" or "motion"). Hornbeck also claims that Plaintiffs committed perjury and fraud at trial, and asks this Court to refer Plaintiffs' conduct to the U.S. Attorney's Office for investigation. Plaintiffs oppose the motion.

For the reasons stated below, the Court DENIES Hornbeck's motion in its entirety. I. Background and Procedural History The facts and procedural history of this case are detailed in prior decisions, familiarity with which is assumed. See, e.g., Zerega Avenue Realty Corp. v. Hornbeck Offshore Transp., LLC, No. 04 Civ. 9651, 2007 WL 3125318 (S.D.N.Y. Oct. 27, 2007), and 571 F.3d 206 (2d Cir. 2009). The Court reviews only the procedural history relevant to the instant motion.

In brief, Plaintiffs allege that Hornbeck's barge allided with a relieving platform on Plaintiffs' property, thereby damaging the platform and an adjacent office building. (See generally Am. Compl.; see also Pl. Mem., Dkt. Entry No. 148, at 2.) By stipulation dated March 21, 2006 ("2006 Stipulation"), the parties consented to conduct all proceedings, including any trial and entry of final judgment, before a Untied States Magistrate Judge. (See Dkt. Entry No. 55.) Thereafter, the Magistrate Judge found Hornbeck liable to Plaintiffs, see Zerega Avenue Realty Corp., 2007 WL 3125318, at *6, and is currently presiding over proceedings on remand from the Second Circuit.

Following remand, Hornbeck sought to introduce "evidence and witnesses that would establish [that P]laintiffs' claims in this case were fraudulent, and in significant part based upon perjury." (Def. Mem. at 7.) By Memorandum and Order dated June 2, 2010, the Magistrate Judge granted in part and denied in part Hornbeck's request. See Zerega Avenue Realty Corp. v. Hornbeck Offshore Transp., LLC, No. 04 Civ. 9651, 2010 WL 2365866, at *6 (S.D.N.Y. June 2, 2010). In the same Memorandum and Order, the Magistrate Judge also denied Hornbeck's request to withdraw its consent to proceed before a magistrate judge. See id. at *6. The Magistrate Judge instructed Hornbeck that such a request "must be directed to the district judge who referred this matter to the undersigned . . . ." Id.

By Order dated December 14, 2010, the Magistrate Judge set trial to commence on January 12, 2011. (See Dkt. Entry No. 143.) On the eve of that trial-and more than six months after the Magistrate Judge informed Hornbeck that its motion to vacate should be directed to this Court-Hornbeck filed the instant motion, alleging that a number of the rulings in the Magistrate Judge's June 2010 Memorandum and Order "evidence[ ] an inability to be impartial . . . ." (Def. Mem. at 12.) Hornbeck also asks this Court to refer "this matter . . . to the United States Attorney's Office for investigation into the fraudulent acts and perjury by [P]laintiffs and their principals." (Def. Mem. at 12.)

II. Motion to Vacate

Hornbeck argues that this Court should vacate the reference to the Magistrate Judge because (a) "Hornbeck did not authorize its prior attorney to consent to proceed before a Magistrate Judge," (Def. Mem. at 12; see also id. at 1 n.4); and (b) the Magistrate Judge's adverse evidentiary rulings show that he is unable "to serve impartially," (id. at 1).

A. Authorization of Consent

1. Applicable Law

Section 636(c)(1) of Title 28 provides that a District Court judge may, upon consent of the parties, refer all proceedings in a civil matter to a magistrate judge. 28 U.S.C. § 636(c)(1). Rule 73 of the Federal Rules of Civil Procedure implements Section 636, and governs proceedings that have been referred to a magistrate judge. See, e.g., Anderson v. Woodcreek Venture Ltd., 351 F.3d 911, 917 (9th Cir. 2003).

In order to "signify their consent" to proceed before a magistrate judge, "the parties must jointly or separately file a statement consenting to the referral." Fed. R. Civ. P. 73(b)(1). An attorney's consent on behalf of his or her client binds the client: "the general rule that an attorney has the authority as an agent to bind a client on actions taken within the scope of the attorney's authority applies, and an attorney's consent to proceed before a magistrate judge is sufficient under the statute." Frank v. County of Hudson, 962 F. Supp. 41, 43 (D.N.J. 1997). See also United States v. Muhammad, 165 F.3d 327, 331 (5th Cir. 1999) (upholding an attorney's consent to proceed before a magistrate judge as binding upon the party; "As the Supreme Court [has] recognized . . ., our judicial system is based on 'representative litigation, in which each party is deemed bound by the acts of his lawyer-agent.' . . . One can only imagine the havoc that would ensue should we allow otherwise.") (internal citations omitted); Woo v. City of New York, No. 93 Civ. 7007, 1997 WL 277368, at *4-5 (S.D.N.Y. May 27, 1997); De Ponce v. Buxbaum, No. 90 Civ. 6344, 1995 WL 51098, at *5 (S.D.N.Y. Feb. 9, 1995) (party's "conclusory assertion that her attorney was not authorized to consent on her behalf [to proceed before a magistrate judge] is without merit. The general rule is that a party who voluntarily selects counsel is bound by the actions taken on the party's behalf.").

2. Application of Law to Facts

The Court rejects Hornbeck's contention that its attorney's alleged lack of actual authority to consent to proceed before a magistrate judge vitiates the 2006 Stipulation. The applicable authorities clearly permit counsel to consent on behalf of a client to proceed before a magistrate judge; an ...


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