Thomas Nestor v. Jack Day, et al.

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-10331
Non-Argument Calendar
____________________
THOMAS J. NESTOR,
Plaintiff-Appellant,
versus
VPC3 II, LLP,
a Florida Limited Liability,
N.E. APARTMENTS ASSOCIATES, INC.,
a Florida Corporation,
JUDGE JACK DAY,
In his official capacity,
Defendants-Appellees.
____________________
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2 Opinion of the Court 23-10331
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:20-cv-00265-CEH-TGW
____________________
Before B RASHER , ABUDU , and A NDERSON , Circuit Judges.
PER CURIAM:
Thomas Nestor, proceeding pro se, appeals the magistrate
judge’s order awarding attorneys’ fees pursuant to a settlement
agreement after he voluntarily dismissed his complaint.
We review appellate jurisdictional issues sua sponte and de
novo. In re Walker, 515 F.3d 1204, 1210 (11th Cir. 2008). It is our
duty to determine whether we have jurisdiction over a particular
matter. Id. The parties are incapable of conferring upon us a juris-
dictional foundation we otherwise lack simply by waiver or proce-
dural default. United States v. Harris, 149 F.3d 1304, 1308 (11th Cir.
1998); see also Hertz Corp. v. Alamo Rent-A-Car, Inc.,16 F.3d 1126, 1131
(11th Cir. 1994) (“Subject-matter jurisdiction can never be waived
or conferred by the consent of the parties.”).
Appellate jurisdiction is generally limited to “final decisions
of the district courts.” 28 U.S.C. § 1291. The Federal Magistrates
Act created the position of a federal magistrate judge that could be
assigned to hear and determine nondispositive pretrial matters,
subject to reconsideration by the district court if the order is clearly
erroneous or contrary to law, and to conduct hearings and issue
recommendations as to eight dispositive pretrial motions, subject
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23-10331 Opinion of the Court 3
to the district court’s de novo review. 28 U.S.C. § 636(b)(1)(A)-(B);
see also Fed. R. Civ. P. 72(a)-(b); Gomez v. United States, 490 U.S. 858,
867-69 (1989).
In a narrow exception, if all parties consent, a magistrate
judge “may conduct any or all proceedings in a jury or nonjury civil
matter and order the entry of judgment in the case.” 28 U.S.C.
§ 636(c)(1). “To signify their consent, the parties must jointly or
separately file a statement consenting to the referral.” Fed. R. Civ.
P. 73(b)(1). In this situation, “an aggrieved party may appeal di-
rectly to the appropriate United States court of appeals from the
judgment of the magistrate judge in the same manner as an appeal
from any other judgment of a district court.” 28 U.S.C. § 636(c)(3);
see also Int’l Cosms. Exch., Inc. v. Gapardis Health & Beauty, Inc., 303
F.3d 1242, 1244 n.1 (11th Cir. 2002) (noting that “[t]he fact that the
order was issued by a magistrate [judge] does not affect its appeal-
ability” because “[t]he parties consented to the jurisdiction of a
magistrate judge pursuant to 28 U.S.C. 636(c)(1)”).
However, if there is no specific agreement in place, the dis-
trict court reviews the magistrate judge’s recommendations and
may accept, reject, or modify them. 28 U.S.C. § 636(b)(1). When a
magistrate judge is proceeding under the supervision of a district
court pursuant to 28 U.S.C. § 636(b), his actions “are not final or-
ders and may not be appealed until rendered final by a district
court.” Donovan v. Sarasota Concrete Co., 693 F.2d 1061, 1066-67
(11th Cir. 1982). We lack jurisdiction to hear appeals directly from
magistrate judges, because an appeal from a magistrate judge’s
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4 Opinion of the Court 23-10331
ruling must first be taken to the district court, even as to nondis-
positive decisions. See United States v. Schultz, 565 F.3d 1353, 1359-
60 (11th Cir. 2009) (holding that we lacked jurisdiction to hear the
defendant’s appeal of a magistrate judge’s order denying his mo-
tion for self-representation); see also United States v. Renfro, 620 F.2d
497, 500 (5th Cir. 1980) (“The law is settled that appellate courts are
without jurisdiction to hear appeals directly from federal magis-
trates.”). Moreover, subsequent adoption of a magistrate judge’s
order by the district court does not cure a premature notice of ap-
peal. See Perez-Priego v. Alachua Cnty. Clerk of Ct., 148 F.3d 1272, 1273
(11th Cir. 1998) (holding that a magistrate judge’s report and rec-
ommendation was not final and appealable where the district court
had not adopted it before the notice of appeal was filed).
Here, we lack jurisdiction to review the magistrate judge’s
order because the parties did not consent to dispositive magistrate
judge jurisdiction and Nestor failed to first appeal the order to the
district court. Accordingly, we dismiss Nestor’s appeal for lack of
jurisdiction.
DISMISSED.
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