Estate of Jones Ex Rel. Jones v. City of Martinsburg

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-2135

ESTATE OF WAYNE A. JONES BY ROBERT L. JONES AND BRUCE A.
JONES, Administrators of the Estate of Wayne A. Jones,

Plaintiff - Appellant,

v.

CITY OF MARTINSBURG, WEST VIRGINIA; PFC. ERIK HERB; PFC.
DANIEL NORTH; PTLM. WILLIAM STAUBS; PTLM. PAUL LEHMAN; PFC.
ERIC NEELY,

Defendants – Appellees,

and

MARTINSBURG POLICE DEPARTMENT; DOES 1 TO 25,

Defendants.

Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. Gina M. Croh, Chief
District Judge. (3:13-cv-00068-GMG-JES)

Argued: March 22, 2016 Decided: July 6, 2016

Before GREGORY and DUNCAN, Circuit Judges, and Richard L.
VOORHEES, United States District Judge for the Western District
of North Carolina, sitting by designation.

Remanded by unpublished order. Judge Gregory directed entry of
the order with the concurrence of Judge Duncan. Judge Voorhees
wrote a dissent from the order of remand.
ARGUED: Christopher Edwin Brown, BROWN FIRM, PLLC, Alexandria,
Virginia, for Appellant. Philip W. Savrin, FREEMAN MATHIS
& GARY, LLP, Atlanta, Georgia, for Appellees. ON BRIEF:
Rocco J. DeLeonardis, CONSUMER LAW, PLLC, Reston, Virginia, for
Appellant.

ORDER

GREGORY, Circuit Judge:

In the unique circumstances presented, because the facts

admitted as a result of the requests for admission, which formed

the basis of the underlying motion to deem requests for

admissions admitted, constructively resolved all of the material

issues in dispute, giving the motion a dispositive effect, and

because this Court is unable to determine the extent of the

district court’s reliance on the admissions, this Court remands

the matter to the district court for consideration of the

discretionary factors in Rule 36(b) in determining whether to

allow the withdrawal of the admissions. This order in no way

opines on the merits of such consideration.

REMANDED

2
VOORHEES, District Judge, dissenting:

I respectfully dissent from the order entered in this case.

My disagreement with the majority’s action extends to the form,

as recognized by the substantial variance in length between the

majority’s order and my dissent, as well as the substance of the

disposition reached in this case.

In late December of 2013, the City of Martinsburg and the

related individual defendants (collectively, the City) served

requests for admission (RFAs) upon the Estate. On the day the

responses were due, the City filed a “Motion to Deem Requests

for Admissions to Plaintiffs Admitted.” J.A. 48. This motion

was referred to the magistrate judge who ultimately denied the

motion because it was premature. J.A. 99. During oral argument

before the magistrate judge, counsel for the City explicitly

mentioned that “[i]f a party wants to have his admissions

withdrawn, then he should file a motion under [Federal Rule of

Civil Procedure] 36(b).” J.A. 86:21-23. The plain language of

Rule 36(b) states that “[a] matter admitted under this rule is

conclusively established unless the court, on motion, permits

the admission to be withdrawn or amended.” On appeal, neither

party seriously contests the fact that the plain meaning of Rule

36 posits that it is self-executing: “A matter is admitted,

unless, within 30 days after being served, the party to whom the

3
request is directed serves on the requesting party a written

answer.” Fed. R. Civ. P. 36(a)(3).

Nevertheless, the City filed a “Second Motion to Deem

Requests for Admissions to Plaintiffs Admitted.” J.A. 100. The

Estate responded by asserting incorrect arguments regarding the

time period it had to respond to the requests. J.A. 122-23.

However, the Estate also argued that “there is sufficient

evidence to contradict any purported admissions” and that it

would not serve the purpose of Rule 36 to deem the RFAs admitted

because the Estate could dispute the facts contained therein.

J.A. 124. The Estate also attached its responses to the RFAs.

J.A. 128-131. At no point, however, did the Estate mention Rule

36(b) or the word “withdraw” until it filed its appeal with this

court.

The Estate asked this panel to cobble together these two

filings and construe them as the functional equivalent of a

motion under Rule 36(b). Prior unpublished decisions of this

court have not strictly interpreted the motion requirement under

Rule 36(b) and have allowed late responses or a motion for

extension of time to serve as the functional equivalent of a

motion under Rule 36(b). Bailey v. Christian Broad. Network,

No. 11-2348, 483 F. App'x 808, 810 (4th Cir. June 15, 2012)

(filing a motion for extension of time “was, in essence, a

motion to withdraw deemed admissions”); Metpath, Inc. v. Modern

4
Med., No. 90-2234, 934 F.2d 319, 1991 WL 87534, at *2 (4th Cir.

May 29, 1991) (per curiam) (late response). These decisions are

based in part upon the reasoning by the Supreme Court that “if a

litigant files papers in a fashion that is technically at

variance with the letter of a procedural rule, a court may

nonetheless find that the litigant has complied with the rule if

the litigant’s action is the functional equivalent of what the

rule requires.” Torres v. Oakland Scavenger Co., 487 U.S. 312,

316-17 (1988). Rule 36(b) is the pertinent rule and states that

the required motion or “functional equivalent” thereof should

contain a discussion of whether withdrawal “would promote the

presentation of the merits” or prejudice the opposing party.

Fed. R. Civ. P. 36(b). Under Torres and the prior unpublished

decisions of this court, it is appropriate to treat the related

filings responding to the second motion to deem the RFAs

admitted as the functional equivalent of a motion to withdraw

under Rule 36(b).

The magistrate judge in the underlying case considered the

second motion filed by the City, the Estate’s response to the

motion, and the attached response to the RFAs. J.A. 161-64.

The magistrate judge granted the underlying motion in an order

without explicitly considering the Rule 36(b) factors. Id.

However, as explained infra, the result of the magistrate

5
judge’s actions was to deny implicitly any constructive motion

to withdraw.

At no point in this litigation did the Estate object to the

form or substance of the magistrate judge’s disposition of the

motion. Ultimately, the City moved for and received summary

judgment. Specifically, the district court found that “[m]any

material facts in this case are undisputed because a magistrate

court order deemed admitted requests for admission” and “the

evidence in the record independently supports the facts

admitted.” J.A. 552.

The Estate timely appealed the grant of summary judgment.

In the “Issues Presented for Review” it stated that this panel

should consider (1) whether the district judge, as opposed to

the magistrate judge, erred in granting the second motion to

deem RFAs admitted without consideration of the Rule 36(b)

factors; and (2) whether the district court properly granted

summary judgment based on the deemed admissions. (Appellant’s

Initial Br., at 1). Later in the brief, the Estate argued that

the magistrate judge’s failure to consider Rule 36(b)

constituted an abuse of discretion. (Id. at 21-22, 25). Much,

if not all, of the discussion contained in the initial brief

argued that the actions of the district court judge and

magistrate judge were functionally indistinguishable.

6
 On appeal, the City argued that the Estate failed to

preserve the Rule 36(b) issue for appellate review by failing to

object to the magistrate judge’s order. Only in its reply did

the Estate argue that the magistrate judge was required to issue

a report and recommendation (R&R) and that the ruling “on these

clearly dispositive matters without providing a [R&R] should be

subject to review by this Court.” (Appellant’s Reply Br., at

3).

On March 22, 2016, this court heard oral arguments from

counsel. Around six weeks later, on May 4, 2016, the panel

ordered supplemental briefing on the following:

(1) Whether, under 28 U.S.C. § 636, the
City of Martinsburg’s “second motion to
deem requests for admissions to plaintiffs
admitted” should be characterized as
dispositive or non-dispositive of
plaintiffs’ claims?;

(2) Whether, under 28 U.S.C. § 636, the
magistrate judge had authority to “hear
and determine” the City of Martinsburg’s
motion?; and

(3) Whether there is an exception to the
general rule of waiver when a magistrate
judge issues an order beyond his statutory
authority in 28 U.S.C. § 636?

A. The First Level of Waiver
Today the panel has remanded by way of an order because the

magistrate judge’s order and the motion itself were “dispositive

in effect.” To reach this issue, the panel necessarily had to

7
find that it was appropriate to consider the Estate’s newly

advanced argument in its reply. However, “it is a well settled

rule that contentions not raised in the argument section of the

opening brief are abandoned.” A Helping Hand, LLC v. Baltimore

County, MD, 515 F.3d 356, 369 (4th Cir. 2008) (quoting United

States v. Al-Hamdi, 356 F.3d 564, 571 n.8 (4th Cir. 2004)).

“[I]n rare circumstances, appellate courts, in their discretion,

may overlook this rule and others like it if they determine that

a ‘miscarriage of justice’ would otherwise result.” Id.

Perhaps the majority found that the supplemental briefing

ordered obviated any prejudice to the City. See Brown v. Nucor

Corp., 785 F.3d 895, 921 (4th Cir. 2015) (stating the purpose of

this doctrine “is to avoid unfairness to an appellee and

minimize the ‘risk of an improvident or ill-advised opinion

being issued on an unbriefed issue.’”) (quoting United States v.

Leeson, 453 F.3d 631, 638 n.4 (4th Cir. 2006)). Nevertheless,

as explained below, this is but one instance of the Estate’s

failure to fully present its arguments to the appropriate

judicial body. Accordingly, I would find that this is not the

rare exception to this rule of waiver.

B. The Second Level of Waiver

Assuming the panel found the requisite miscarriage of

justice, it would still have to determine that a second and

separate rule of waiver is inapplicable to remand this matter to

8
the district court. As early as 1997, this court has stated,

“[o]ur cases are replete with warnings that the consequences of

failing to file objections is waiver of the right to appeal.”

Wells v. Shriners Hosp., 109 F.3d 198, 199 (4th Cir. 1997). The

text of Federal Rule of Civil Procedure 72 warns parties of the

failure to object. Regarding nondispositive matters, “[a] party

may not assign as error a defect in the order not timely

objected to.” Fed. R. Civ. 72(a). Regarding dispositive

matters, to which the magistrate judge must file a R&R, the

aggrieved party must file objections within fourteen days and

“[t]he district judge must determine de novo any part of the

magistrate judge’s disposition that has been properly objected

to.” Fed. R. Civ. P. 72(b)(2)-(3) (emphasis added). This court

has extended the waiver rule to both dispositive and non-

dispositive matters. Solis v. Malkani, 638 F.3d 269, 274 (4th

Cir. 2011) (Gregory, J.).

The order entered by the majority appears to indicate that

it considered the order entered by the magistrate judge to be

dispositive and, for that reason, remand was warranted. There

are two types of referrals under 28 U.S.C. § 636(b)(1).

Specifically, under § 636(b)(1)(A) a magistrate judge may “hear

and determine” any pending pretrial matter and issue an order,

so long as the matter does not involve a set of listed motions.

Under § 636(b)(1)(B), a magistrate judge may consider the

9
motions listed in § 636(b)(1)(A) but has to issue a R&R instead

of an order.

Several unpublished decisions of this court have indicated

that a motion that is the functional equivalent of a listed

motion under § 636(b)(1)(A) is deemed dispositive and that a

district court should apply a de novo standard of review instead

of a clearly erroneous standard of review to timely filed

objections. See, e.g., Reddick v. White, No. 08-2286, 456 F.

App'x 191, 193-94 (4th Cir. Dec. 1, 2011); see also Gomez v.

United States, 490 U.S. 858, 868 (1989) (classifying the listed

motions as “dispositive”). Federal Rule of Civil Procedure 72,

a corollary to § 636, makes the distinction between (A) and (B)

referrals by reference to whether a particular matter is

dispositive or nondispositive. Fed. R. Civ. P. 72.

To the knowledge of the undersigned, no case in this court

has addressed directly the situation posed in this appeal: what

happens when a magistrate judge enters an order on a matter that

is deemed functionally dispositive and said order is never

objected to? Should the court refuse to apply the general rule

of waiver because the magistrate judge was supposed to enter a

R&R?

The Solis case is actually instructive on this point. In

Solis, the district court judge referred a request for fees to

the magistrate judge without specifying whether the magistrate

10
judge should issue a R&R or an order. 638 F.3d at 272. The

magistrate judge ultimately issued findings on a document

entitled “order of the Court.” Id. In Solis, neither party

objected to the magistrate judge’s order within the required

period. Id. Instead, the aggrieved litigant appealed directly

to the Fourth Circuit. The Fourth Circuit dismissed this first

appeal for lack of jurisdiction. 1 On remand, the district court

judge held that § 636(b)(1)’s list of motions was not exhaustive

and instead extended to all dispositive motions. Chao v.

Malkani, mem. op., No. 8:00-cv-03491, at *4 (D. Md. Feb. 25,

2009). It then held that the motion requesting fees was

1The panel reasoned that “[i]t is unclear from the record
whether the district court’s referral to the magistrate judge
was pursuant to § 636(c) or § 636(b).” Chao v. Malkani, No. 07-
1828, at *2 (4th Cir. June 5, 2008) (unpublished order). Given
the ambiguity, the court found that it was without jurisdiction
because a party may not directly appeal a R&R or a magistrate
judge’s order because of the application of the final judgment
rule. See id. (such an order “cannot be directly appealed to
this Court”) (citing Reynaga v. Cammissa, 972 F.2d 414, 416-18
(9th Cir. 1992) (discussing the final judgment rule and deciding
to issue a writ of mandamus to avoid determining whether
appellate jurisdiction existed)). If the magistrate judge’s
order was under § 636(c), consent was not evident from the
record. Id. Given the uncertainty of whether a final judgment
was present, the panel remanded the matter to the district court
and did “not address the issue of whether appellants have waived
their right to appeal, as that is not before us at this time.”
Id. Here, it is abundantly clear that the court has
jurisdiction over the final judgment entered by the district
court in its grant of summary judgment. Moreover, the waiver
issue is directly before this court.

11
dispositive under § 636. The district court judge then

considered whether the parties waived the right to object to the

magistrate judge’s filing denominated as an “order.” The

district court judge stated that the only way the magistrate

judge could have heard the motion was under § 636(b)(1)(B). Id.

at 7. 2 Accordingly, the district court recharacterized the

“order” as a R&R and determined that the parties waived the

right to appeal the matter to him. Id. Finally, the district

judge “adopted the report without further review.” Id. at 8.

On appeal, the Solis panel decided de novo whether the aggrieved

party “waived its rights to challenge the findings of the

magistrate judge by failing to file objections with the district

court.” 638 F.3d at 273. The court held that it was immaterial

that the magistrate judge entered an order as opposed to a R&R:

“Counsel should have known that their failure to act waived the

right of their clients to district court review of

recommendations, and that, thereafter, the court would be free

to adopt the recommendations wholesale.” Id. at 274. There is

no reason not to apply Solis to the instant case. Assuming

2The district court judge also held that the defendants
knew of the distinction because they objected to the referral of
the matter to the magistrate judge on the
dispositive/nondispositive distinction. Chao, mem. op., No.
8:00-cv-03491, at *7. However, the panel did not cite this
evidence as a basis for upholding the district court’s decision.

12
arguendo that the matters decided by the magistrate judge can be

declared dispositive as stated by the majority, a clear line of

precedent from this court indicates that filing objections is

imperative to preserving review even at the district court

level. Moreover, Solis posits that waiver applies no matter how

the magistrate judge denominates his order.

Perhaps Solis and the general rule of waiver can be

distinguished in the instant case, but that task has not been

undertaken by the majority. The arguments distinguishing

application of this second level of waiver were themselves

waived by failing to include them in the initial brief.

Assuming the majority has declined to apply the first level of

waiver, it could perhaps have considered distinguishing the

second level of waiver discussed above. In Thomas v. Arn, the

Supreme Court expressly approved of the use of waiver when a

party fails to object to a magistrate judge’s R&R. 474 U.S.

140, 146-47 (1985). This rule derives from the courts of

appeals’ supervisory powers and serves (1) to focus the district

court judge’s attention on disputed matters; and (2) to promote

judicial economy. Id. Without the rule of waiver, an aggrieved

litigant could sandbag the district court judge by raising its

objections on appeal. Id. at 147-48. As a consequence, either

district court judges would have to consider carefully every

single unobjected-to matter before their magistrate judges to

13
ensure that no error is present or appellate panels would have

to perform this duty. Id. at 148. This court has suggested

that an opportunistic litigant might even attempt to “bypass the

district court entirely, even though Congress had lodged the

primary responsibility for supervision of federal magistrates’

functions with that judicial body.” United States v. Schronce,

727 F.2d 91, 94 (4th Cir. 1984).

The Supreme Court held that this enormous waste of the

parties’ and the judicial system’s resources can properly be

avoided by utilizing the appellate courts’ supervisory powers.

Arn, 106 U.S. at 47. However, the Supreme Court cautioned that

these supervisory powers could not be applied if they “conflict

with constitutional or statutory provisions.” Id. at 148. The

Ninth Circuit holds that waiver is inappropriate when a

magistrate judge issues an order on a dispositive motion as

opposed to a R&R because it implicates structural principles of

Article III. Bastidas v. Chappell, 791 F.3d 1155, 1159 (9th

Cir. 2015) (“The line Congress drew between dispositive and

nondispositive motions was not a result of happenstance.

Rather, it reflects the very real concern that, at least absent

consent, delegating the final disposition of cases to magistrate

judges would run afoul of the Constitution.”). The Ninth

Circuit did not rest its holding on Article III but rather

determined that the Magistrates Act amounted to a “statutory

14
provision that embodies a strong policy concerning the proper

administration of judicial business.” Bastidas, 791 F.3d at

1160 (quoting Nguyen v. United States, 539 U.S. 69, 78 (2003)).

Following Nguyen, the Ninth Circuit stated that “the importance

of policing the proper designation of judicial officers in

Article III courts convinces us that review is warranted despite

[the] failure to object.” Id. at 1160. If the majority’s order

implies that this rule applies here, it should make that

determination explicit in order to avoid the time consuming

process that occurred in the instant case.

Moreover, this court should carefully examine Bastidas

before adopting its reasoning. I will not attempt to

exhaustively examine the Bastidas opinion, but I will pose

several issues that deserve further examination before it is

applied in this court.

First, Nguyen concerned the improper assignment of a non-

Article III judge to a panel in clear violation of 28 U.S.C. §

292. 539 U.S. at 79-80. The violation of § 636 is not so

clear. It relies upon a construction of § 636 that is more

restrictive of the magistrate judge’s powers than supplied in

the text Congress enacted. In this case, the motion ruled upon

by the magistrate judge is not a listed motion under §

636(b)(1)(A).

15
 Secondly, the majority’s order states that the magistrate

judge’s order itself was dispositive of the matter, but, the

question then arises, when was it dispositive? How is a

district court judge or magistrate judge to determine when

particular discovery matters are dispositive of a claim? The

answer to this question would seem to not be after an appellate

panel returns these matters for further review.

Third, Nguyen concerned entry of a final ruling in a case

by an improperly formed panel. However, here the magistrate

judge’s order never amounted to a final ruling that was

appealable to this court. Rather, the final order on appeal is

the grant of summary judgment. This is not a distinction

without merit. The magistrate judge never purported to be the

final arbiter of the viability of the claims advanced by the

Estate and the district court always retained its supervisory

role to hear any objections. Congress provided a mechanism for

ensuring that aggrieved litigants receive Article III review of

a magistrate judge’s disposition of particular matters.

Congress envisioned a system where the district court judge is

the primary supervisor of the magistrate judge and § 636

supplies dissatisfied parties an avenue to ensure that the

desired amount of supervision is available. See Schronce, 727

F.2d at 94. Any inclination here to adopt the Ninth Circuit’s

position without seriously examining Congress’ other strong

16
policy favoring district court review of magistrate judge

matters is inappropriate.

C. There is Not a Putative Rule 36(b) Motion Pending
Before the District Court

Finally, the majority’s order appears to aver that the

district court judge failed to rule upon an otherwise ripe Rule

36(b) motion. However, as stated above, the magistrate judge

considered the entirety of the filings before him, including (1)

the Estate’s response to the motion to deem the RFAs admitted,

and (2) its response to the RFAs. The essence of the majority’s

ruling implies comfort with conjuring an implicit motion but

discomfort with allowing an implicit denial.

When the magistrate judge entered the order deeming the

RFAs admitted, he implicitly denied any implied purported

pending motions attending the Estate’s response. Ruling

otherwise would require a district court judge to comb through

the materials presented to a magistrate judge to determine if

some implicit matter was raised but not directly addressed in

the magistrate judge’s order or R&R. Our adversarial system

stands as a check on such an effect. Moreover, a contrary

holding would run afoul of the Magistrates Act’s purposes as

articulated by this court in numerous decisions as well as by

the Supreme Court in Arn.

17
 Unpublished precedent indicates that putative, un-ruled

upon motions do not exist in this type of situation. By way of

example, in Bailey, the magistrate judge was presented with a

request for extension of time to answer requests for admission.

483 F. App’x 808, 809-10. The magistrate judge erroneously

believed that he was constrained by Rule 36(a) and did not treat

the motion for extension of time as the functional equivalent of

a motion under Rule 36(b). Id. at 810. Critically, Bailey

objected to this motion. Id. The district court summarily

denied the objection. Id. Nowhere in the opinion does the

Bailey panel intimate that the motion remained pending even

after appeal. See id. Rather, the panel concluded that the

district court itself erred by summarily rejecting the

objections to the magistrate judge’s disposition. Id. If the

motion remained pending, the Bailey panel would not have needed

to hold that the district court judge erred and would have

instead, like the majority in this case, remanded the matter to

the district court judge.

Moreover, the rule that a judge necessarily and implicitly

denies all relief requested when he disposes of the matters

presented to him without granting said relief is applied to

other judicial officers. See Poindexter v. Mercedes-Benz Credit

Corp., 792 F.3d 406, 411 (4th Cir. 2015) (affirming the district

court’s “implicit denial of” litigant’s Rule 56(d) motion);

18
Varghese v. Honeywell Intern., Inc., 424 F.3d 411, 415 n.6 (4th

Cir. 2005) (district court’s rulings “stand[] as an implicit

rejection of [litigant’s] summary judgment argument”); United

States v. Benenhaley, No. 06-6117, 240 F. App’x 581, 582 & n.*

(4th Cir. July 10, 2007) (“affirm[ing] the district court’s

implicit denial” of a claim it admittedly did not address: “[b]y

omitting this claim from its opinion, the district court

implicitly rejected it.”); Marcellin v. Kupferer, No. 02-2157,

60 F. App'x 513, 514 (4th Cir. Apr. 15, 2003) (“We conclude the

district court’s summary judgment order implicitly denied

Marcellin’s request to have its requests for admissions deemed

admitted under Rule 36(a).”). The majority’s order is an

example of this doctrine applied in the appellate context. By

not addressing the arguments advanced by the City, it has

rejected them, albeit without providing sustaining rationale.

Finally, the Estate’s response to the City’s motion for

summary judgment cannot be considered the functional equivalent

of a motion under Rule 36(b). Attempting to dispute admitted

facts at summary judgment cannot be considered the functional

equivalent of a motion under Rule 36(b) without entirely

eviscerating the motion requirement. Moreover, such a ruling

would necessarily excise a portion of Rule 56 itself. See Fed.

R. Civ. P. 56(c)(1)(A) (indicating that a party can show an

absence of a dispute regarding factual matters by citing

19
admissions). Unpublished precedent from this court supports the

proposition that a party’s attempt to dispute admitted facts at

summary judgment does not constitute the functional equivalent

of a motion under Rule 36(b). Adventis, Inc. v. Consol. Prop.

Holdings, Inc., Nos. 04-1405, 05-1411, 124 F. App'x 169, 173

(4th Cir. Mar. 2, 2005) (“Rule 36 admissions are conclusive for

purposes of the litigation and are sufficient to support summary

judgment.”) (quoting Langer v. Monarch Life Ins. Co., 966 F.2d

786, 803 (3d Cir. 1992)); Foxworth v. World Book Encyclopedia,

Inc., No. 87-2128, 838 F.2d 466, 1988 WL 6814, at *1 (4th Cir.

Jan. 27, 1988) (failing to give pro se litigant Roseboro notice

prior to entering summary judgment for defendant was harmless

error because the litigant had failed to timely respond to

RFAs). Published and persuasive precedent from other Circuits

hold likewise. Koszola v. Bd. of Educ. of City of Chicago, 385

F.3d 1104, 1109 (7th Cir. 2004); Karras v. Karras, 16 F.3d 245,

247 (8th Cir. 1994). Finally, such a motion would necessarily

be filed well outside the discovery period. J.A. 39, 239.

In conclusion, I do not believe that the facts presented in

this case are so exceptional as to fall outside the general rule

that a party waives arguments not advanced in its initial brief.

Moreover, I do not believe the facts presented in this case

justify deviating from well-settled precedent from this court

that prohibits an aggrieved litigant from raising arguments on

20
appeal when he or she fails to raise the same before the

district court judge. Finally, I do not believe our precedent

has ever required a district court judge to review filings

before a magistrate judge to determine if an unruled-upon

implicit motion is buried in the docket.

The majority’s position necessarily results in an undue

restriction on a magistrate judge’s ability to effectively

perform his delegated tasks and imposes additional duties upon a

delegating district court judge. Consequently, as envisioned by

Arn, it has required the panel to address matters never

addressed by the district court judge and has caused a

substantial waste of judicial resources. The purpose of the

Magistrates Act was to assist the judiciary as a whole to

“reduce increasingly unmanageable caseloads.” Schronce, 727

F.2d at 93. The Supreme Court has recognized that the judicial

system would “grind nearly to a halt” without the presence of

magistrate judges at the trial court level. Wellness Intern.

Network, Ltd. v. Sharif, 135 S. Ct. 1932, 1939 (2015).

The majority’s order in this case necessarily traverses

several layers of waiver to conclude that remand of this matter

to the district court is appropriate. The majority’s opinion in

In re Carney best explains why affirming the grant of summary

judgment is the correct result:

21
 For our litigation system to work
effectively, litigants must comply with the
Federal Rules of Civil Procedure. [The
Estate’s] plight in this case exemplifies
how repeated failures to do so ultimately
preclude a party from presenting the merits
of his case.
In re Carney, 258 F.3d 415, 422 (5th Cir. 2001). Given the

aforementioned reasons, I must respectfully dissent.

22