Opinion
05-0277-2-VAM.
September 20, 2006
ORDER
This matter arises on Defendant's Motion For Return Of Property (docket # 17), filed on September 18, 2006. No Response has been filed to date by the Government.
A review of the file indicates that this criminal case was dismissed without prejudice upon the Government's motion on April 26, 2006 and the bench warrant issued for Defendant's arrest was quashed.
When no criminal case is pending, like this case, there is authority that a magistrate judge lacks subject matter jurisdiction to rule on a former defendant's Fed.R.Crim.P. 41(e) motion which seeks purely a civil remedy (return of property seized by the FBI) absent consent of the parties. In re Search of S S: Custom Cycle Shop, 372 F.Supp. 2d 1048 (S.D. Ohio 2003); but see Matter of 4330 N. 35th St., Milwaukee, Wisconsin, 142 F.R.D. 161 (E.D.Wis. 1992) (magistrate judge holding that a Rule 41(e) motion could be filed as a stand-alone civil action and decided by the magistrate judge without referral from a district court judge under the catch-all provision of 28 U.S.C. § 636(b)(3)).
In light of the unsettled law on a magistrate judge's jurisdiction in similar cases and the District of Arizona Clerk's written policy memorandum, dated October 30, 1992, the pending motion without prejudice. Thereafter, Mr. Duron-Rivas may thereafter file a civil motion akin to a new civil lawsuit with a CV number, pay the current filing fee or seek an in form pauperis waiver thereof. If a magistrate judge is drawn as the assigned trial judge in the new civil case, the parties may freely consent to magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c) or one party may elect to have the case reassigned to a district judge. Of course, if a district judge is drawn, the district judge may choose to resolve the matter himself or herself, refer the motion to a magistrate judge for a report and recommendation or the parties may consent to a magistrate judge pursuant to 28 U.S.C. § 636(c).
IT IS ORDERED that Defendant's Motion For Return Of Property (docket # 17) is DENIED without prejudice.