00-2949 Kalan v. City of St. Francis

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“[W]e have held that when a new party intervenes in a case proceeding before a magistrate judge by consent of the original parties, ‘[u]nless the latecomer, too, consents, the whole proceeding before the magistrate judge may be set at naught.’ Gruber, 38 F.3d at 370 (citing Jaliwala, 945 F.2d 221). This rule derives from the axiom that the consent of the intervenor cannot be inferred. Id. Here, we have a new magistrate judge instead of a new party. But we can no more infer that consent to a specific, named magistrate judge constitutes consent to a different magistrate judge than we would infer the consent of an intervening party from the consent of the original parties. ‘We see no virtue in permitting our jurisdiction to depend on inferences where both the statute and common sense call for precision.'”

“[N]othing in the record shows that the parties ever consented to Magistrate Judge Gorence’s plenary authority over this lawsuit. We cannot construe the language of a consent that is limited on its face to Magistrate Judge Bittner to include Magistrate Judge Gorence. Magistrate Judge Gorence therefore had no authority to rule on Kalan’s Rule 60(b) motion, and the judgment is a nullity. Absent a final decision, we lack jurisdiction to consider the merits of this appeal.”

Dismissed.

Appeal from the United States District Court for the Eastern District of Wisconsin, Gorence, Mag. J., Per Curiam.