OBJECTIONS TO THE REPORT

Eun Jung Lim

17192 Murphy Avenue #17723

Irvine, California [92623]

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA- SOUTHERN DIVISION

COMES NOW, Plaintiff, EUN JUNG LIM, pursuant to F. R. Civ. P. 72 (b)(2), and hereby files her Objection to the Report and Recommendation of United States Magistrates Court Judge issued on June 8, 2023. This objection is based on the following grounds. First, Plaintiff never consented to appear before a United States Magistrate Judge. Next, the Court abused its discretion when it misapplied the law and went ahead to impose Plaintiff’s consent. Plaintiff asserts as follows:

LEGAL STANDARD

When a party objects to a magistrate judge’s report and recommendation, the district court judge “shall make a de novo determination of those portions of the [report and recommendation] to which objection is made.” See 28 U.S.C. § 636(b)(1).

In this action, Plaintiff objects to the entirety of the Report and Recommendation.

DISCUSSION

1. THE MAGISTRATE JUDGE ERRED BY FAILING TO CONSIDER THAT PLAINTIFF NEVER GAVE HER CONSENT

Local Rule 73-3 provides in clear terms that “[i]n any case assigned to a district judge and referred to a magistrate judge, pursuant to 28 U.S.C. §636(b), for a report and recommendation, the parties may, at any time prior to the entry of judgment, consent that the assigned magistrate judge may handle the case for all purposes.”   (Emphasis added)

Under the Federal Magistrate Judges Act [“Act”], a Magistrate Judge’s jurisdiction may arise through the consent of the parties. See 28 U.S.C. § 636(c). It follows; lack of consent denies the Magistrate Judge discretion, hence all decisions issuing forth are void.

“[S]o long as consent [to Magistrate Judge jurisdiction] is clear and unambiguous, it is effective.” In re Search of Scranton Hous. Auth., 487 F.Supp.2d 530, 535 (M. D. Pa. 2007); see also Roell v. Withrow, 538 U.S. 580, 591 (2003) (consent may be inferred from parties’ actions).

Plaintiff asserts that she filed a no-consent form, where she clearly expressed her intention not to have the Magistrate Judge hear the case. It follows; Plaintiff did consent to the Magistrate Judge, either voluntarily or involuntarily. Plaintiff withholds her consent because the Magistrate Judge is not an Article 3 Judge.

Next, the Magistrate Judge recommends the dismissal of Plaintiff’s case on the ground inter alia, that Plaintiff failed to prosecute the case. The Magistrate Judge notes that Plaintiff has never filed her Third Amended Complaint as required by a previous court order. Plaintiff refers this Court to Roell, where the U.S. Supreme Court provided that consent (or lack of it) may be inferred from parties’ actions. Since Plaintiff never consented to the Magistrate Judge’s jurisdiction, she has no obligation to obey a void court order. Besides, Plaintiff avoided filing the Third Amended Complaint because doing so would be acquiescing to the Magistrate Judge’s jurisdiction, which Plaintiff does not recognize in this case.

In light of the foregoing, Plaintiff objects to the Magistrate Court’s Report and Recommendation in its entirety because she never gave her consent, and never recognized the jurisdiction of the Magistrate Judge in the instant case.

1. THE COURT ABUSED ITS DISCRETION

The Supreme Court has held that a district court abuses its discretion when it makes an error of law. See Cooter Gell v. Hartmarx Corp., 496 U.S. 384, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990) (“A district court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law…”).

The first step of the abuse of discretion test is to determine de novo whether the trial court identified the correct legal rule to apply to the relief requested. If the trial court failed to do so, it abused its discretion. See U.S. v. Hinkson, 585 F.3d 1247, 1261-62 (9th Cir. 2009).

The second step of the abuse of discretion test is to determine whether the trial court’s application of the correct legal standard was (1) “illogical,” (2) “implausible,” or (3) without “support in inferences that may be drawn from the facts in the record.” Anderson v. City of Bessemer City, N.C., 470 U.S. 577, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). If any of these three apply, only then is the reviewing Court able to have a “definite and firm conviction” that the trial court reached a conclusion that was a “mistake” or was not among its “permissible” options, and thus that it abused its discretion by making a clearly erroneous finding of fact. See U.S. v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009).

In the instant case, this Court totally failed to apply 28 U.S.C. § 636(b) and (c). The Report and Recommendation made no reference to said laws. The Magistrate Judge only addressed the alleged delays of filing the Third Amended Complaint. Plaintiff had filled in the no-consent form. It is notable that the Magistrate Judge never addressed the fact that Plaintiff filed a no-consent form, which essentially voided the Magistrate Judge’s jurisdiction in the matter. This fact itself shows how the Magistrate Judge abused its discretion.

Even if this Court holds that the Magistrate Judge met the first test, the second test was not met. Notably, the Magistrate Judge’s decision was not supported by inferences drawn from the facts in the record. The record clearly shows Plaintiff’s no-consent form. This shows that Plaintiff had withheld her consent. She was therefore not bound by any decision of the Magistrate Judge. This explains the alleged delay in responding to the Magistrate Judge’s orders. The Magistrate Judge’s therefore relied on the said inactivity to conclude that Plaintiff failed to prosecute the case.

Next, Plaintiff has challenged the jurisdiction of the Magistrate Judge by filing a Motion to Disqualify. The District Court Judge, Hon. Stanley Blumenfeld, Jr. issued an Order denying Plaintiff’s motion. The judge failed to note that the Magistrate Judge had no jurisdiction for want of Plaintiff’s consent. The Magistrate Judge had also denied Plaintiff’s motion to extend time to file an Amended Complaint, which denial was unreasonable. The decisions of the Magistrate Judge and that of the District Court Judge shows the bias that Plaintiff is being subjected to.

CONCLUSION

For the foregoing reasons and reasons set forth herein, Plaintiff prays that this Honorable Court grants Plaintiff’s Objection to the Magistrate Judge’s Report and Recommendation. Plaintiff also requests that the Chief District Judge Honorable Philip S. Gutierrez, hear and determine this Objection. Next, Plaintiff prays this Court grants Plaintiff leave to file her Third Amended Complaint. Lastly, Plaintiff prays this Court grant any other relief as it deems just, in Plaintiff’s favor.

Respectfully submitted this [ENTER DATE]

________________________

EUN JUNG LIM, Pro Se

CERTIFICATE OF SERVICE

Plaintiff affirms that a copy of the above was served upon all the parties to this action by electronic and/or U.S. mail to their respective addresses as stated below:

[ENTER ADDRESSES]

DATE: ________________

________________________

EUN JUNG LIM, Pro Se

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