NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 23 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HENRY MALASKY, No. 17-15117
Plaintiff-Appellant, D.C. No. 4:16-cv-04102-DMR
v.
MEMORANDUM*
ROBERT A. JULIAN; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Donna M. Ryu, Magistrate Judge, Presiding
Submitted March 13, 2018**
Before: LEAVY, M. SMITH, and CHRISTEN, Circuit Judges.
Henry Malasky appeals pro se from the magistrate judge’s order dismissing
his action alleging federal claims. We have jurisdiction under 28 U.S.C. § 1291.
We review de novo whether the magistrate judge had jurisdiction. Allen v. Meyer,
755 F.3d 866, 867-68 (9th Cir. 2014). We vacate and remand.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Plaintiff and defendants Julian and Plastiras consented to proceed before a
magistrate judge. See 28 U.S.C. § 636(c). The magistrate judge then dismissed
plaintiff’s action before the other named defendants had been served. See Fed. R.
Civ. P. 4(m), 12(b)(6). Because all parties, including unserved defendants, must
consent to proceed before the magistrate judge for jurisdiction to vest, Williams v.
King, 875 F.3d 500, 503-04 (9th Cir. 2017), we vacate the magistrate judge’s order
and remand for further proceedings.
Henry Malasky’s and Julian’s requests for oral argument, set forth in their
briefs, are denied.
Appellees Martin and Garrett Malasky’s motion to dismiss the appeal
(Docket Entry No. 9), joined by Appellee Jennifer Esposito (Docket Entry No. 12),
is denied.
The parties shall bear their own costs on appeal.
VACATED and REMANDED.
2 17-15117