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Attorneys Appeal Rule 11 Sanctions

Kiobel v. Millson, Case No. 07-3903 (C.A. 2, Jan. 8, 2010)

In this appeal we consider a challenge to the imposition of sanctions under Rule 11 of the Federal Rules of Civil Procedure. Appellants are defense counsel in an action brought pursuant to the Alien Tort Statute (“ATS”), 28 U.S.C. § 1350, for alleged violations of customary international law in Nigeria. They seek review of an order of the United States District Court for the Southern District of New York (Kimba M. Wood, Chief Judge), affirming the order of a magistrate judge, that sanctioned them for making factual representations that allegedly lacked evidentiary support. Appellants challenge the order of the District Court on two grounds. First, they contend that a magistrate judge is not authorized to issue an order imposing Rule 11 sanctions, and the District Judge should have therefore construed the Magistrate Judge’s “Opinion and Order” as a report and recommendation under 28 U.S.C. § 636(b)(1)(B) subject to de novo review. Second, they argue that the imposition of Rule 11 sanctions based on the statements identified by plaintiffs cannot be sustained as a matter of law in light of the record evidence that supported those statements.

The panel is evenly divided on the first ground raised in this appeal, with one member of the panel concluding that magistrate judges have authority to impose Rule 11 sanctions, another judge concluding that they do not, and the third declining to endorse either view in light of the statute’s ambiguity. See post. Fortunately, we need not decide whether the District Judge applied the correct standard of review to the Magistrate Judge’s determination that Rule 11 sanctions were warranted in this case, because we agree with appellants’ second basis for challenging the order of the District Court. As explained in greater detail below, the record evidence does not provide an adequate basis to impose Rule 11 sanctions on appellants. Therefore, we rely solely on the second ground advanced by appellants to resolve this appeal.

This appeal arises from a putative class action brought under the ATS. The complaint charged three affiliated corporate entities with violations of international law for their involvement in oil exploration and development in Nigeria. See Kiobel v. Royal Dutch Petroleum Co., 456 F. Supp. 2d 457 (S.D.N.Y. 2006). Plaintiffs moved for class certification pursuant to Rule 23(c) of the Federal Rules of Civil Procedure, and the District Court referred that motion to a magistrate judge for a report and recommendation under § 636(b)(1)(B). See Kiobel v. Royal Dutch Petroleum Co., No. 02 Civ. 7618, 2004 U.S. Dist. LEXIS 28812 (S.D.N.Y. Mar. 31, 2004). On March 31, 2004, Magistrate Judge Henry B. Pitman recommended that the District Court deny plaintiffs’ motion for class certification. Id. at *43.

Plaintiffs objected to the Magistrate Judge’s report and recommendation, and defendants filed an opposition to those objections. In that opposition, defense counsel stated, inter alia: (1) “Now we have learned that seven of the identified witnesses [in support of plaintiffs’ claims] are being paid for their testimony;” (2) “[T]here can be no doubt that the witnesses are giving testimony that [plaintiffs’] counsel knows to be false;”1 and (3) “[W]e know that between February 29, 2004 and April 2, 2004, Berger & Montague [plaintiffs’ counsel] wired $15,195 to the Benin Republic for the benefit of the witnesses.” J.A. 344. On the basis of these statements, plaintiffs charged defense counsel—who are the appellants in this matter—with violating Rule 11(b)(3) of the Federal Rules of Civil Procedure, alleging that defense counsel’s statements had no evidentiary support. Pursuant to Rule 11, plaintiffs filed a motion for the imposition of sanctions against defense counsel. Opposing that motion, defense counsel argued that their statements were supported by record evidence.
 

 

Jurisdiction: U.S. Court of Appeals, Second Circuit
Related Categories: Civil Procedure
 
Circuit Court Judge(s)
José Cabranes
Dennis Jacobs
Pierre Leval

 
Appellant Lawyer(s) Appellant Law Firm(s)
Douglas J. Dixon Cravath Swaine & Moore LLP
Noah J. Phillips Cravath Swaine & Moore LLP
Rowan D. Wilson Cravath Swaine & Moore LLP

 
Appellee Lawyer(s) Appellee Law Firm(s)
Stephen A Whinston
Carey R. D’Avino Berger & Montague, PC
Peter Nordberg Berger & Montague, PC
Keino Robinson Berger & Montague, PC

 

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district court? was amended to exclude sanctions arising from discovery disputes. see fed. r. civ. p. 11(d) ("this rule for rule 11 sanctions on the basis of that rule's own terms and on the basis of the known statutory chief judge jacobs, judge leval, and judge cabranes each file a separate concurring opinion on berger & montague [plaintiffs' counsel] wired $15,195 to the benin republic for the benefit of the conceptually distinct from a decision on the merits," that court found them similar insofar as an award reveal congress's intentions with respect to the sanctioning power are those portions of the act that supp. 2d 228, 233 (d. conn. 2006) (applying clearly erroneous or contrary to law standard). judge rule 37 for noncompliance with discovery orders usually are committed to the discretion of the appeal from an order of the united states district court for the southern district of new presiding with the consent of the parties, 28 u.s.c. 636(e)(3)-(4), this does not affect our discussion, which is limited to 746, 748 (9th cir. 1990) (imposition of rule 11 sanctions is nondispositive). see also lancellotti v. fay, 909 the word "sanction" is used only in subsection (e)(4), which sets out the civil contempt authority of1 surely relevant to a consideration of whether rule 11 sanctions are an independent claim. judge. nonetheless, under the new enactment, magistrate judges were for the first time entrusted with alpern respectively), the imposition of rule 11 sanctions is the functional equivalent of an independent district judge appointed under article iii. subparagraph (5) of the new 636(e) imposes limits on the the . . . legal contentions [made in it] are warranted by existing law . . . ; [and] the factual contentions illogical. leval op. infra at 19. if it is true that rule 11 sanctions bear similarities to criminal contempt between discovery sanctions that are dispositive and those that are not"). nor do the decisions of the statute, the federal rules of civil procedure, or the federal rules of criminal procedure." v. phinney v. wentworth douglas hosp., 199 f.3d 1, 6 (1st cir. 1999) ("motions for sanctions premised on alleged6 wired $15,195 to the benin witnesses lacked evidentiary support because defense counsel had evidence (imprisonment for up to thirty days, or a fine of up to $5,000, or both, see 18 u.s.c. although i recognize that these analogies--like all analogies--are imperfect, they are, i submit, congress conferred on magistrate judges the power to impose criminal convictions for contempt, and criminal contempts are judicial orders, collateral to the adjudication of the claims and defenses of the relevant legal context in which the ninth circuit panel ruled. in maisonville, the magistrate judge recommend the sanction, subject to de novo confirmation by the district court). that question is not judge leval believes that magistrate judges' limited powers to issue criminal contempt citations before magistrate judges, both for matters within the magistrate judge's power to hear and determine (which the rule 323, 333 (2d cir. 1999)); that a court possesses jurisdiction to impose sanctions arising from the motion for rule 11 sanctions to a criminal contempt charge insofar as each is `a separate and magistrate judges certain powers and withhold others. process, and, if so, what sanction would be appropriate."); pannonia farms, inc. v. usa cable, 426 f.3d 636(e)(2); as well as additional criminal contempt authority, and the full civil contempt authority of a within the magistrate judges' authority, so are rule 11 sanctions.15 standard of review to the magistrate judge's determination that rule 11 sanctions were warranted in it is of course true that the sanction imposed in hoar was by reason of discovery abuse and was mooted for this appeal because we overturn the sanctions on a different basis. we are all in agreement, entire $5,000 payment was connected with services provided to the benin witnesses. nothing in the within this framework, courts have decided that, in addition to the powers explicitly withheld amount sent by $3,000 or approximately twenty-five percent," and therefore in violation of rule 11. was only $30 billion. kiobel, 2006 u.s. dist. lexis 71421, at *22-23. the magistrate judge disagreed, the question we face is whether, in enacting the federal magistrate judge act, 28 u.s.c. 631 in short, a sanction in some circumstances may have little or no resemblance to an award of a determination that the disposition of a rule 11 motion must be made by a district judge is statutory authority of magistrate judges, and it is not surprising that congress and the courts would which the magistrate judge presides with the consent of the parties under 636(c), and in light of the fact that this issue is unsettled in our circuit, there may be merit in judge leval's advice circuit that authorizes sanctions in the discovery context, no reasonable argument remains that a dispositive matter capable of being referred to a magistrate judge only under 636(b)(1)(b) or 1994 wl 584665, at *2 (s.d.n.y. oct. 24, 1994). disputes," which "provides the source of his authority to impose sanctions for the violation of discovery 4 `clearly erroneous or contrary to law' standard."); merritt v. int'l bhd. of boilermakers, 649 f.2d 1013, 1016-17 (5th cir. under a de novo or more deferential standard of review, the imposition of sanctions in this case cannot i also agree with the sixth and seventh circuits that the resolution of a motion for rule 11 be dispositive and accordingly beyond the magistrate judge's power. hoar, 900 f.2d at 525. sanction is to the court, rule 11(c)(4) expressly provides, "the sanction may include nonmonetary evolution of the existing statute and the interpretive authorities, and the gradual growth of magistrate action pressing a `claim' for the breach of the duty set forth in the rule," based on the fact that, as in remains but the entry of judgment, or its functional equivalent. parties, which are intended to punish misconduct committed in defiance of the court's authority by a to be false," j.a. 344, was utterly lacking in support and therefore sanctionable. the federal rules of civil procedure and analogous also to the evaluation of motions under rule 12 of rule 11. "rule 11 sanctions are a coercive mechanism, available to trial court judges, to enforce ethical action on behalf of a class, dismissal for failure to state a claim, and involuntary dismissal of an action award sanctions." leval op. infra at 14. the cases to which judge leval refers, however, involve sanctions for discovery the authorization of magistrate judges to impose a sanction depends on whether it involved abuse of magistrate shall forthwith certify the facts to a judge of the district court and may the authority of magistrate judges to impose sanctions under the federal rules, the new judge power, publication of our conflicting views may be helpful to whatever court eventually needs to plaintiffs objected to the magistrate judge's report and recommendation, and defendants filed because they usually require that one party pay damages to another party fails to account for some or, reasoning from the fact that an award of a sanction is much like a contempt adjudication, which sanction under the federal rules. and reasoning by analogy, in the mode employed in gomez, now judge may take actions that are "dispositive" of an independent claim. this, however, is a narrow resolved by order of a magistrate judge. in bennett v. general caster service of n. gordon co., the sixth particular sanction imposed by a magistrate judge, to determine whether it is dispositive or non- i turn to examine judge cabranes's arguments to see how it can be that, upon examination of so substantial that a sanction imposed under the federal rules of civil procedure can be viewed as a et seq., congress authorized magistrate judges to impose sanctions for violations of the federal rules of sanctions). the court may impose the sanction because the court is aggrieved. furthermore, while it is 1968, pub. l. no. 90-578, 82 stat. 1107 (codified as amended at 28 u.s.c. 631 et seq.). when the same materials, we come to such different conclusions. judge cabranes advances numerous instructing witnesses to testify falsely. such an interpretation is not compelled by the plain meaning of the text. [judge], reviewable by the district court under the `clearly erroneous or contrary to law' standard." (addressing "magistrate judge contempt authority"). judges the contempt power and the power to sanction under rule 37 than it is to an award of them for making factual representations that allegedly lacked evidentiary support. appellants challenge of congress's confidence were sufficient to support the conclusion that congress intended its general magistrate judges were deemed not to have authority to impose sanctions under rule 37, the argument magistrate judges were to certify the facts to a district judge, who would then hear the evidence and removed any reasonable doubt that a magistrate judge may impose money sanctions under rule 11, at in a proceeding before a magistrate, any of the following acts or conduct shall pierre leval, circuit judge, concurring: determine whether to punish the contemnor.4 authority turns generally on whether the matter is "dispositive." see generally williams v. beemiller, inc., 527 after much discussion in a case in which the question need not be resolved, judge cabranes acknowledges, at the time congress passed the 2000 amendment, there was a circuit split on the jurisdiction to enter orders imposing rule 11 sanctions" and "rule 72(a) authorizes a magistrate judge compare rates tech. inc. v. mediatrix telecom, inc., no. 05-cv-2755, 2007 u.s. dist. lexis 48237, at *4 magistrate judges, although expressly authorized by congress to impose contempts and found also to (such as a monetary sanction) should be considered more nearly analogous to the "dispositive" orders magistrate judge was correct that the testimony may have been "wrong,"then it may also have been "false." 38 f.3d 933, 936 (7th cir. 1994) (easterbrook, j.). recognizing that "an award under rule 11 is magistrate judge should have issued a report and recommendation for de novo review by the district court." (footnote decide that question. accordingly, i set forth my view of the question, and judge cabranes sets forth and misdemeanor cases," gave magistrate judges the power "upon notice and hearing" to maisonville, 902 f.2d at 747-48 (citations omitted). court has previously recognized that "the imposition of sanctions is an issue collateral to and controversy, we could reasonably have concluded, as did two circuits, that congress intended to been advanced by any court or commentator, and maisonville is still good law in the ninth circuit. see, e.g., united states v. looking to impute to congress approval of the holdings of courts, why would we not impute approval 6 magistrate judge to order sanctions under any other statute, the federal rules of civil procedure, or the federal rules of follows: reasoned that the monetary sanction was within the magistrate judge's power because it was not dispositive: the magistrate judge determined that monetary sanctions for this perceived violation of rule 11 were not7 8 resistance to the magistrate judge's lawful writ, process, . . . or command," in all civil cases over 2006), but granted the motion with respect to the second and third statements, see id. at *29, *32-34.3 4 depositions when they directly told plaintiffs' counsel that certain witnesses were testifying falsely. j.a. magistrate judge authority to sanction are irrelevant because they involved imposition of sanctions only to recommend, and not to impose, the sanction. i was initially not persuaded by judge cabranes's congress repealed the old subsection (e), replacing it with a new subsection (e), which grants magistrate is why magistrate judges have the power to impose sanctions for violations of discovery orders. . . . view, each of his arguments depends on a misperception of the facts or of various rules of law. conclusion that congress withdrew that power. be construed to limit the authority of a magistrate judge to order sanctions under any other implicit ratification of the earlier sixth and seventh circuit[] holdings that magistrate judges do not persuasive because of a magistrate judge's statutory, institutional, and historical authority over discovery according to this approach, it becomes pertinent to inspect congress's amendments to the act rule 37, which we have ruled are within the authority of magistrate judges. accordingly, the right to have the claim adjudicated by the court. they do not include collateral matters relating to misconduct and the and is therefore within the powers conferred on a magistrate judge by 636(b)(1)(a). see, e.g., lawrence knowing one another even though plaintiffs' counsel was housing them together in a "compound" in expressly granted to magistrate judges in the new 636(e). a monetary sanction i.e., one that does (which were not authorized to magistrate judges in referrals under 636(b)(1)(a)) than to any power therefore reverse the order of the district court imposing rule 11 sanctions on appellants. from magistrate judges by 636(b)(1)(a). the sixth circuit in bennett also noted that magistrate judges above. as specifically excluded. the express exclusions did not mention sanctions. moreover, the most example, strikes the pleadings with prejudice would have the effect of involuntarily dismissing the action and would thus judges in 2000 now powerfully supports the conclusion that congress intended to confer sanctioning million or the witness may have just been wrong." id. at *23. the flaw in the magistrate judge's6 8 withheld from magistrate judges jurisdiction over contempt proceedings . . . [which] are closely zealous advocacy."). see generally fed. r. civ. p. 11 advisory committee's note ("the rule retains the decided in hoar in 1990 that monetary sanctions are not dispositive and are therefore entrusted to "[c]oercive authority is entrusted to magistrate judges for matters within their statutory authority. that frustrates the aims of rule 1."). accordingly, rule 11 sanctions are generally imposed on attorneys, not congress that magistrate judges do possess that authority. second, even if the statement was literally false--i.e., defense counsel should have excluded withhold others." this argument simply assumes its conclusion. if in fact congress had prohibited certain sanctions under rule 37, in some instances, may be considered `case-dispositive,' requiring de authority are dispositive motions, such as motions "for injunctive relief, for judgment on the pleadings, for violation of the federal rules as well as the power in some circumstances to coerce compliance sanctions is analogous--although surely not identical--to an action for damages insofar as the desired from magistrate judges by 636(b)(1)(a), the power of magistrate judges to "determine" does not 636(b)(1)(b). the supreme court has construed this statutory grant of authority to mean that power to impose rule 11 sanctions in 2000 when it amended 636 to provide for limited contempt magistrate judges by 636(b)(1)(a), the question has been resolved for purposes of this circuit's law. constitute unexplained, implicit endorsement of the holdings that said no, rather than of the holding decision, a product of the legal context in which it was written, does not provide a sound counter- grant of authority to include jury selection in a criminal case. id. at 869-72. noting that congress support." storey, 347 f.3d at 388 (internal quotation marks omitted). as described in greater detail withhold the additional authority to impose rule 11 sanctions. sixth circuit, when it considered the question in 1992, concluded that magistrate judges are not discussion a clearly erroneous standard of review because "[o]rders concerning rule 11 sanctions . . . are . . . limited authority to magistrate judges to impose contempts was converted "into plenary power to hold the similarities between the two forms of order are great. the supreme court has, in fact, expressly while these words do not explicitly confer on magistrate judges the power to impose sanctions, both de novo and under a deferential standard. if the district court makes clear that, regardless of rule 11 sanctions on appellants. therefore, we rely solely on the second ground advanced by of the sanctions. accordingly, it is possible to construe rule 11 sanctions as "similar" to both 5 do not involve the same parties as the underlying action. it has been previously recognized that rule matters upon which the magistrate judge is empowered to rule, and matters as to which the magistrate judge has the 11 sanctions, suggest that a rule 11 sanction is more "dispositive" than a discovery sanction, or that co., 178 f.r.d. 33, 37 (e.d.n.y. 1998); weeks stevedoring co. v. raymond int'l builders, inc., 174 f.r.d. judge cabranes begins by noting that the "sixth and seventh circuits [in bennett v. general caster as the pleading as a whole remains `well grounded in fact.'"). there is nothing in the record suggesting judges authority to make dispositive determinations. the dispositive determinations listed in that clause, insofar as they only submit proposed findings of fact and recommendations" for determination de novo by the district court. hoar, 900 congress expressly withheld from magistrate judges or to the punitive and coercive power congress finally, judge cabranes argues, as a refutation of my arguments referring to congress's grant of pannonia farms, inc. v. usa cable, 426 f.3d 650, 652 (2d cir. 2005). as the court of appeals for the excepted in subsection (a)."). the distinction between "wrong" and "false" is not examined in the magistrate judge's opinion.6 argument would "undermine congress's decision to grant magistrate judges certain powers and magistrate judge's presence. 28 u.s.c. 636(e)(2). in such limited circumstance, then, a magistrate11 collateral order doctrine. sanko s.s. co. v. galin, 835 f.2d 51, 53 (2d cir. 1987) (rule 11 sanction is a although congress has conferred on magistrate judges broader authority to punish acts of contempt when11 magistrate judges in consent cases and then states: "this paragraph shall not be construed to limit the authority of a like a monetary sanction, it imposes a penalty or remedy that does not dispose of a claim or defense (in were expressly forbidden from exercising the contempt power. there are numerous reasons why imposed was not one which disposed of a claim or defense in the underlying action.10 judge if the act does not occur in the magistrate's presence, 636(e)(6)(b)(ii). because the supreme12 civil procedure for making factual representations that lacked evidentiary support. under our `nondispositive,'" the court went on to conclude that "[m]onetary sanctions pursuant to rule 37 for noncompliance with ocelot oil, 847 f.2d at 1462 (noting that magistrate judges are generally authorized to impose rule 37 sanction is a very different sort of ruling from one that determines a party's pleaded claim (at least so long as the form of independent claim." concurrence of judge cabranes at 5. see alpern v. lieb, 38 f.3d 933, 936 (7th cir. christensen eng'g co., 194 u.s. 458 (1904). does not apply to disclosures and discovery requests, responses, objections and motions under rules 26 magistrate [judge], reviewable by the district court under the `clearly erroneous or contrary to law' august 10, 2007 order of the district court, affirming the magistrate judge's september 29, 2006 order 3 for denying magistrate judges sanctioning power over matters under rule 11. if anything it judge cabranes further explains that his perception "that the disposition of a rule 11 [sanctions] motion13 to put contemnors in jail, why would we interpret congress's silence on the issue of noncriminal section 636 of title 28 sets the metes and bounds of a magistrate judge's authority. when a congress intended also to withhold the power to sanction, the grant of contempt powers to magistrate yet the court's conclusion that the sanction imposed was nondispositive was in no way connected to the fact however, given our earlier decision in thomas e. hoar, and the 2000 amendments to 636, any contempt power. prior to 2000, 636(e) expressly withheld from magistrate judges the power to 4 court should review the determination of a magistrate judge that rule 11 sanctions are warranted. serve or cause to be served upon any person whose behavior is brought into [t]he broad scope of a magistrate judge's authority over discovery disputes . . . provides the source of 2 sanctions. knowing of the decisions in bennett and alpern, congress readily could have included the13 against this backdrop, judge leval is of the view that magistrate judges may impose rule 11 this shorthand is reflected in rule 72 of the federal rules of civil procedure. rule 72 does not undertake to3 f.2d 15, 17 n.2 (1st cir. 1991) (avoiding the "vexing" question whether rule 11 sanctions ordered by a contempt of such court. upon the commission of any such act or conduct, the 1 deny enforcement of an agency subpoena, n.l.r.b. v. frazier, 966 f.2d 812, 818 (3d cir. 1992), and judge's view, was the inclusion in the $15,195 figure of a $5,000 wire transfer from plaintiffs' counsel to sanctions on an attorney is not a matter contested by the parties to the underlying action, but, as here, a the most important reason is that bennett and alpern were decided under the old statute, before for sanctions, a "magistrate judge lacked authority to do anything other than make a recommendation." in the first place, the hoar decision said nothing of the kind. it simply examined whether that magistrate judges lack statutory authority to impose sanctions under rule 11 might apply also to judge cabranes's similar attempt to distinguish maisonville, 902 f.2d 746, which upheld a magistrate judge's12 of each factual statement." navarro-ayala v. hernandez-colon, 3 f.3d 464, 467 (1st cir. 1993) (breyer, some statute. judge cabranes cites none. below, neither of the statements that the magistrate judge and the district judge held sanctionable i do not address here the authority of a magistrate judge to award sanctions when acting pursuant to the8 prevent a claim or defense from being advanced. see hoar, 900 f.2d at 525 ("[t]he imposition of changed. there is little reason to believe the sixth and seventh circuits would reach the same result if 1 withholding of the contempt powers from magistrate judges could support a strong argument that passage says, in effect, "the fact that we expressly confer civil contempt power on magistrate from the powers of magistrate judges. courts sometimes therefore employ an imprecise shorthand, rather than the holdings of the two circuits that ruled otherwise?20 conferred in 636(e). i think it undeniable that, in comparison with the prior blanket prohibition of all abuses under rule 11 before it was amended in 1993 or they involve sanctions under rule 37. here, we consider to order discovery sanctions. they may not do so, however, if those sanctions fall within the eight dispositive motions of the definitions of "wrong"--"not agreeing with or conforming to the facts; erroneous; incorrect," id. at 2641. if the in light of this record evidence, it was legally erroneous for the magistrate judge to conclude construed the magistrate judge's "opinion and order" as a report and recommendation under 28 subject to the same level of review as that other function. instead, we must assess the level of review concluding that they do not, and the third declining to endorse either view in light of the statute's award sanctions. while judge cabranes is correct that two circuits concluded that they were not, five civil procedure, and the district court referred that motion to a magistrate judge for a report and 37 of the federal rules of civil procedure for noncompliance with discovery orders. as to the related whether congress has given magistrate judges authority to impose sanctions, perhaps that court will find money damages as the objective of a party's civil claim, but it always has great resemblance to a holding magistrate judges and our court had not yet found them authorized to impose sanctions in a discovery power. see williams v. beemiller, inc., 527 f.3d 259, 265 (2d cir. 2008) (noting that the list of exclusions contradictions and inconsistencies, those contradictions were as apparent to plaintiffs' counsel as they empowered to impose sanctions, and gave as one of its reasons that "congress specifically withheld on the pleadings, for summary judgment, to dismiss or quash an indictment or counsel argued that their statements were supported by record evidence. define the powers of magistrate judges to impose other disciplinary and coercive remedies for principle that imposition of sanctions is dispositive of an issue that is "the functional equivalent of an provides that, if the contumacious conduct does not occur in the magistrate judge's presence, the issue powers. because congress chose to confer only limited contempt powers on magistrate judges, we will need to decide the question." id. that said, judge leval and i have now provided some modest new york (kimba m. wood, chief judge), affirming the order of a magistrate judge, that sanctioned plaintiffs-appellees, obligations relating to discovery or to the statements in pleadings, motions, and other papers. so far as his authority to impose sanctions for the violation of discovery orders." ante at 7-8. there is no designated to them by the district court, with the exception of a specified list of matters. as for the2 misconduct for expense and loss suffered by reason of it. sanctions also have much in common with question prior to 2000, when the governing statute was truly silent on the question of the authority of [s]ection 636(b)(1)(a) lists those motions which may not be determined by a in 2000, however, in a new enactment captioned, "magistrate judge contempt authority," discovery disputes are "within the core statutory authority of magistrate judges" is simply an invention without a grant magistrate judges broader power over the regulation of discovery. accordingly, i believe that the obstruct the same; (3) failure to produce, after having been ordered to do so, any bennett and alpern is that his selection of those two cases is arbitrary. as noted above, seven circuits, judge cabranes does not point to anything in the statute, before or after its amendment, or in its legislative history, impose sanctions under rule 37. in short, if contempts and rule 37 sanctions are nondispositive and moreover, it is not as if the imputation would arise from congressional silence. as noted above, in passing20 dispositive and non-dispositive matters. and therein lies the flaw in judge leval's argument that, 6 in support," storey, 347 f.3d at 388, it cannot give rise to rule 11 sanctions. opinions. i believe that the reasoning in these cases remains sound, even if one construes citations for court reviews a magistrate judge's order on nondispositive matters under a clearly erroneous standard, judge leval correctly observes that magistrate judges have considerable coercive authority under 18 u.s.c. 3401. a rule 11 motion for sanctions, though it arises in the context of an underlying action, is the functional on the other hand, holding that magistrate judges do possess authority to impose rule 11 pitman recommended that the district court deny plaintiffs' motion for class certification. id. at *43. proceedings for the purposes of appellate jurisdiction. see, e.g., cooter & gell, 496 u.s. at 396. independence of a rule 11 sanction from the underlying action is equally true of a sanction under rule in 636(b)(1)(a) is "non-exhaustive"). because many of the powers withheld from magistrate judges 2002), a direction to an attorney who demonstrates insufficient knowledge of the governing rules to within their statutory authority." ante at 7. this observation is puzzling, for the question is not what we judges think of for the reasons stated by judge cabranes, as well as the sixth and seventh circuits (in bennett and imposition of sanctions under rule 11, is unpersuasive for the same reason. as judge cabranes explains, the ruling of resolved.1 judge's powers when acting on referral from a district court. consequently, dispositive of a `claim' of a party. because this was a dispositive matter, under fed. r. civ. p. 72(b), the exercise contempt powers. even though a sanction is far less consequential punishment than a holding appellate jurisdiction." id. on that basis, the seventh circuit concluded that "[t]he power to award the list of matters excluded from magistrate judges' broadly stated power to hear and have learned that seven of the identified witnesses [in support of plaintiffs' claims] are being paid for service of n. gordon co., 976 f.2d 995, and alpern v. lieb, 38 f.3d 933,] have held that decisions on rule the magistrate judge's presence." criminal procedure." 28 u.s.c. 636(e)(4). 2009 wl 3172724 (fed. cir. 2009) (per curiam). the circuits themselves are split. compare alpern, 38 principle that attorneys and pro se litigants have an obligation to the court to refrain from conduct that granted to magistrate judges when acting with the consent of the parties is, in my view, entirely irrelevant to the current judge's authority to impose rule 37 discovery sanctions on the basis of a magistrate judge's broader through 37."). in light of this change in the scope of rule 11, i am skeptical that the ninth circuit's9 no support in law or logic--and therefore constitutes an "abuse of discretion." a statement of fact judges to magistrate judges under the broad authority of 636(b)(1)(a). rule 11(b) specifies as to such uphold the sanction if review is deferential but would withhold it if review is de novo that a higher court directives; [or] an order to pay a penalty into court . . . ." thus a sanctioning order may involve a 4 24 constitute a contempt of the district court for the district wherein the magistrate is held that decisions on rule 11 motions are dispositive of a claim and are therefore not properly also awarded plaintiffs one-third of their attorneys' fees arising from their partially successful rule 11 information made by the defendant, to suppress evidence in a criminal case, to oath or affirmation, refusal to be examined according to law; or (5) any other act or within the magistrate judge's authorized powers). each is also equally true of a holding in contempt and seventh circuits' holdings that magistrate judges do not have the authority to impose rule 11 core statutory authority of magistrate judges." id. as explained in greater detail below, the record evidence does not provide an adequate basis to impose 11 is primarily concerned with the conduct of lawyers. see, e.g., cooter & gell, 496 u.s. at 396 ("[a] 5 a "claim" for the breach of the duty set forth in the rule. when a court determines that this duty has 301, 303-04 (s.d.n.y. 1997); laser med. research found. v. aeroflot soviet airlines, 93 civ 5747 (pkl), 9 without resolving the threshold question presented, there remains a need for guidance on how a district i emphasize again that congress granted narrow contempt powers when the magistrate is acting by referral12 witnesses." j.a. 344. on the basis of these statements, plaintiffs charged defense counsel--who are judge jacobs describes judge cabranes's view as "follow[ing] the sixth and seventh circuits." infra at 2. for9 criminal trial, see id. at 873, the court concluded that 636 should not be construed to authorize "dispositive" or "nondispositive" of a claim, other courts have. the sixth and seventh circuits have under rule 37 for misbehavior relating to discovery, while this case involves a sanction imposed under 529, 539. for instance, one witness, ejiogu, testified that he had not returned to nigeria since he fled overturned only on a finding of clear error or abuse of discretion) or whether congress withheld that treatment of rule 11 orders on appeal. under our precedents, the imposition of rule 11 sanctions on `clearly erroneous or contrary to law' standard." id. the entire inquiry was into whether the particular sanction imposed a new subparagraph (4), captioned "civil contempt authority in civil consent and misdemeanor 1994); bennett v. gen. caster serv. of n. gordon co., 976 f.2d 995, 998 (6th cir. 1992) (per curiam). has an effect similar to the denial of a request for damages." id. at 935. it also found support for its conduct which if committed before a judge of the district court would constitute misbehavior at a hearing or other proceeding, or so near the place thereof as to because the statute they were interpreting has been so substantially modified. presiding over matters unrelated to discovery, however, a magistrate judge's authority is often more for summary judgment, to dismiss or quash an indictment or information . . . , to suppress evidence in in civil cases since congress created the position of magistrate judge. see federal magistrate act of record contradicts that inference. indeed, it is hard to condemn as unreasonable the inference that the filed a motion for the imposition of sanctions against defense counsel. opposing that motion, defense similarly ruled that, while a magistrate judge may not impose a sanction that disposes of a claim or court "base[s] its ruling on an erroneous view of the law or on a clearly erroneous assessment of the congress did not explicitly grant or withhold the power, it did speak on the subject. and its statement not only that some of the testimony of the witnesses was false, but also that plaintiffs' counsel were submitting, or advocating a document has a nondelegable responsibility to the court, and in most today, however, following the revision in 2000, the pertinent analogies are very substantially to magistrate judges by any other provision of law. a literal reading of the act would thus compel the determine a party's claim or the right to maintain the claim before the court, while affirming the authority to punish for assistance to notes and comments editors of law reviews in search of an agenda, so we need not go p.c., philadelphia, pa., for plaintiff-appellees. the magistrate judge's determination is flawed for at least two reasons. first, it is not clear that single purpose: the maintenance of the benin witnesses. because this inference was not "utterly lacking imposed, attend educational classes, or seek leave of the court before filing further actions. leval op. were to defense counsel. it was reasonable in the circumstances for defendants' counsel to conclude independent proceeding at law that is not part of the original action." cooter & gell v. hartmarx corp., 636(b)(1)(a)). see 12 wright & miller 3068.2, at 342 (noting that courts have "distinguish[ed] when they impose contempt citations, leval op. infra at 7, but this fact does not answer the question finally, the question of the authority of magistrate judges to impose sanctions under the 22 id., many reasonable inferences can be drawn from testimony that shell held a contract in nigeria that accordingly, the magistrate judge concluded that defense counsel's allegation that plaintiffs' counsel (e.d.n.y. june 29, 2007) (applying de novo review), with lawrence v. wilder richman sec. corp., 467 f. considered dispositive. jury cases, see id. at 870-71, and that jury selection was enormously important for the conduct of a fair 17 "utterly lacking in support." storey, l.l.c., 347 f.3d at 388. as the magistrate judge acknowledged, see appellants, the face of the ninth circuit's continued reliance on the precedent. motions brought under rule 11 where the authority of magistrate judges is far more narrow. but reviews its recommendation de novo. id. sanctions on the basis of the traditionally "broad scope of a magistrate judge's authority over discovery presented, especially when one considers the restrictions on this power. section 636(e)(6)(b) explicitly (s.d.n.y. 1995), a direction to the offender to publish the fact of the sanction, see, e.g., in re rezulin judge." ante at 2. he goes on to describe those decisions. in both cases, the courts concluded that an holding, then rule 11 sanctions could be referred to a magistrate judge as nondispositive for purposes of question whether magistrate judges could impose sanctions under rule 11, with the sixth and seventh covered services totally unrelated to the benin witnesses. it shows that $3,000 was paid against a pre- petroleum development company of nigeria, ltd., aware of the falsity. panel concluding that magistrate judges have authority to impose rule 11 sanctions, another judge a new subparagraph (2) to 636(e), captioned "summary criminal contempt authority," gave 3 the reasons explained above, it is no longer possible either to follow, or to reject, the sixth and seventh circuit decisions montague wired $15,195 to the benin republic for the benefit of the witnesses." benin republic for the benefit of the witnesses." j.a. 344. that they have sanctioning power over abuses of rule 11(b) in connection with motions entrusted to a new subparagraph (3), captioned "additional criminal contempt authority in civil consent 15 contempts). while judge cabranes stresses that the contempt authority delegated to magistrate14 that said yes? furthermore, since congress gave no indication whatsoever that it sees a difference19 moreover, in asserting that "a rule 11 motion can be considered the functional equivalent of an evidence, or render[s] a decision that cannot be located within the range of permissible decisions." of those reasonable inferences is that the witness gave false testimony that plaintiffs' counsel knew to ruling remains sound. as i describe in greater detail below, discovery disputes are within the core the same is true of numerous other decisions of circuit and district courts upholding the authority of magistrate judges to award sanctions. no decision i have found justifies a magistrate of that court upon a day certain to show cause why he should not be adjudged in group equip. fin., inc., 73 f.3d 1253, 1258 n.4 (2d cir. 1996); morley v. ciba-geigy corp., 66 f.3d 21, 22 statutory basis. if there were such a thing as "core" statutory authorization for discovery, as distinguished from peripheral court. accordingly, a rule 11 motion can be considered the functional equivalent of an action pressing been breached and that a monetary award is warranted, the claim has been disposed of in full. nothing finally, i find unpersuasive judge leval's argument that the similarities between rule 11 hoar, 900 f.2d at 525. genre as the enumerated motions. we hold, therefore, that such motions ordinarily should be classified as from magistrate judges when they had enough in common with explicitly withheld powers, might well finally, and highly significant for our purposes, in the statute's only reference to the question of 496 u.s. 384, 396 (1990) (internal quotation marks omitted). relying in part on this authority, our statements came from a witness who testified that "shell had a $260 billion contract" in nigeria, 7 with respect to the second statement, the magistrate judge imposed a $5,000 sanction on each attorney see cooter & gell v. hartmax corp., 496 u.s. 384, 396 (1990)(comparing rule 11 sanctions to a criminal2 citations, it is likewise true that they are similar to other actions that are subject to de novo review by the criminal contempt as being "dispositive" of a claim. in 2000, congress conferred limited contempt novo review." (citing 7 moore, lucas & sinclair, jr., moore's federal practice 72.03, at 72-24 (2d ed. continued to require consent of the parties as a prerequisite to a magistrate judge's authorization to try c.j.); see also forrest creek associates, ltd. v. mclean sav. & loan ass'n, 831 f.2d 1238, 1245 (4th cir. non-dispositive is currently a contested point of law within the second circuit."), aff'd, no. 2009-1326, this appeal arises from a putative class action brought under the ats. the complaint charged that defense counsel intentionally inflated the amount wired to the benin witnesses by $3,000 or, as the and broader contempt powers when the magistrate is acting with the consent of the parties. because we here consider de novo, [the district judge] would impose the same sanction[.]" leval op. infra at 24. i am not certain in contempt. moreover, to the extent that sanctioning orders do share common features with awards of contrary to law. magistrate judges the authority to award sanctions under rule 37 for abuse in connection with circuit in maisonville noted, the "motion for reconsideration [at issue] was a discovery motion" and over time to see what light they shed on changes in congress's confidence in magistrate judges as judge leval argues that my "focus on the . . . decisions in bennett and alpern . . . is arbitrary . . . [because]10 power only to recommend. (applying de novo review), with mcallan v. von essen, 517 f. supp. 2d 672, 678 (s.d.n.y. 2007) (applying pursuant to rule 11 of the federal rules of civil procedure or are authorized only to make claim or defense, 636 empowers magistrate judges to impose sanctions. furthermore, since we "punish, by fine or imprisonment, or both, criminal contempt constituting disobedience or time many rulings within a magistrate judge's powers determine something that a party is claiming, the only way to make authorized to issue an order imposing rule 11 sanctions, and the district judge should have therefore a criminal case, to dismiss or to permit maintenance of a class action, to dismiss for failure to state a be at once immediately appealable and within the power of magistrate judges, an order of sanctions under rule 11 is no question, burying our considerable research and analysis. on the other hand, some day a court may this knot needs to be untied by congress or by the supreme court. conducting pretrial and discovery proceedings has been a core component of a magistrate judge's role 2006 u.s. dist. lexis 71421, at *29. in defense of this statement, defense counsel argue that based sanction may be imposed even though not sought by an aggrieved party. see, e.g., morley v. ciba-geigy requires that we "interpret congress's decision in 2000 to grant only limited contempt powers as an analogy to contempt, which congress also had expressly withheld. sanctions at issue here cannot stand as a matter of law. even though we are able to decide this case provisions to determine what, if anything, they reveal about congress's intentions. the task is very strongly support the conclusion that, with the exception of a sanction in a form that disposes of a the opposing argument that the sanctioning power was conferred by congress pre-2000 636(e)(4) expressly stated that its grant of civil contempt authority in consent cases "shall not direction to pay money to the court, see, e.g., lavigna v. wabc television, inc., 159 f.r.d. 432, 437 not dispose of a party's claim or defense is no more and no less similar to the dispositive rulings the sanction power. now the much stronger analogy the similarity to contempt adjudications i set forth our arguments is that congress has not enacted a clear provision one way or the other. my united states, 490 u.s. 858, 868, 873-74 (1989); williams, 527 f.3d at 264-65.3 exceptions to that general rule, but remains helpful nevertheless. as judge leval notes, the order regarding compliance (or not) with discovery obligations? party's claims, and to rulings in the class withheld as "dispositive" of a party's claims. see gomez v. 636(b)(1)(a), and by interpretation of courts, do not involve disposition of a party's claim or defense, while at the same making the third statement because "[a]lthough defendants' counsel overstated the amount of money context of discovery. see supra note 12. furthermore, to my knowledge, this criticism of maisonville has never before matter, we could reasonably have resolved the question either way. reasoning from the broad imposed by reason of a discovery abuse or of abuse in connection with a motion, leaves the claims of the plaintiff and imprisonment a power considerably more awesome than the power to impose a noncriminal sanction and submit recommendations to the district court. see 28 u.s.c. 636(b)(1)(b). the matters explicitly of the holdings of the five circuits which upheld the power of magistrate judges to impose sanctions, 3 extent of punishment a magistrate judge may impose for contempt, and the magistrate judge's recommendation under 636(b)(1)(b). see kiobel v. royal dutch petroleum co., no. 02 civ. 7618, 2004 in their briefing of this appeal, the parties dispute whether congress gave the magistrate judge 6 inquiry. authorized category. finally, the similarity between sanctions and contempts is far stronger, for reasons implement an important congressional reappraisal of the stature and powers of magistrate judges. see prods. liability litig., no. 00 civ. 2843 (lak), 2005 wl 626866, at *2 (s.d.n.y. mar. 17, 2005); patsy's these officers through a series of statutory amendments (while gradually upgrading their titular bennett and alpern courts, which held that magistrate judges lacked the power pre-2000 to impose rule rivera-guerrero, 377 f.3d 1064, 1067-69 (9th cir. 2004) (analyzing a question of magistrate judge's authority "under notwithstanding the literal terms of the statute, congress staked out a strong stance against the exercise u.s.c. 636(b)(1)(b) subject to de novo review. second, they argue that the imposition of rule 11 invoked, or even mentioned, "the broad scope of a magistrate judge's authority over discovery refers to as matters "not dispositive of a party's claim or defense") and for matters withheld by 636(b)(1)(a) (which the a. rory o. millson, thomas g. rafferty, michael t. reynolds, different in this regard from a summary holding in criminal contempt, which congress explicitly empowered a magistrate leval has offered his views on the matter, leval op. infra, and i offer my own in this separate opinion. sanctions, the "lighter, less consequential form of the same general species as a holding in contempt." that is why magistrate judges have the power to impose sanctions for violations of discovery orders. district court refers a matter to a magistrate judge under 636(b), the extent of the magistrate judge's 16 imprisonment is very substantially more awesome than the power to impose a noncriminal sanction. if we review an order imposing rule 11 sanctions for abuse of discretion. see, e.g., storey v. cello stand as a matter of law because the statements at issue do not violate rule 11. accordingly, the reasons, and on deeper digging find that i disagree with his conclusion. in the end, the question is and therefore beyond the authority of magistrate judges, without disavowing our prior holding in hoar docket no. 07-3903-cv these witnesses to give obviously false testimony." j.a. 344. concurrence of judge leval at 21. judge cabranes, on the other hand, is of the view that thomas e. proceedings. indeed, it is the broad scope of a magistrate judge's authority over discovery disputes that judicial determination of a rule 11 violation has on an attorney's professional reputation. circuits concluded that magistrate judges did possess sanctioning power, so long as the sanction that judge leval is right when he writes that "[i]t is only in the case where the district court would sanctions prior to the 2000 amendments. five of the seven, including our own, concluded that furthermore, it would contravene general principles of statutory interpretation. if we apply the historic that the statement "there can be no doubt that the witnesses are giving testimony that counsel knows 18 sanctions, like the power to award damages, belongs in the hands of the district judge." id.; see also statement, see kiobel, 2006 u.s. dist. lexis 71421, at *34. accordingly, the possible overstatement of clear. and recognized by our decisions."); maisonville v. f2 america, inc., 902 f.2d 746, 748 (9th cir. 1990) ("[w]e find that the is the "functional equivalent of an independent claim" which should therefore be considered meets this standard as a matter of law, and they therefore cannot give rise to the imposition of arguments in support of his conclusion that magistrate judges lack power to impose sanctions. in my hoar is limited to the rule 37 context. judge cabranes would thus follow the sixth and seventh same manner and to the same extent as for a contempt committed before a judge i am aware, judge cabranes is the first and only judge to suggest that congress might have granted to 7 was the subject of a sanctions request does not change the fact that resolution of a sanctions request is this assumes, i believe reasonably, that the logic of maisonville, which was decided in 1990, did not survive13 argument to the position of the sixth and seventh circuits. analogous to rule 11 sanctions." id. at 998 n.7. the opinion focused on 636(b)(1)(a)'s grant of authority to magistrate judges designated by the district11 motion are distinct from those in the underlying action underscores the separateness of the rule 11 imposing rule 11 sanctions, is reversed. presumption in favor of continuing judge-made law absent clear congressional intent otherwise, see the authority of magistrate judges when acting by referral of a district judge, rather than upon consent of the parties. nevertheless, it would be remarkable if, under rule 11, calling an untrue statement "wrong" is permissible, but calling it any clear congressional guidance, the bennett and alpern courts searched for analogies to powers among the functions a magistrate judge is not authorized to perform, and which is not "dispositive" of be false because it was so wildly off-base. to rule on the matter, or has authority only to recommend to the district court. as some of the powers withheld by can give rise to the imposition of sanctions only when the "particular allegation is utterly lacking in their testimony;" (2) "[t]here can be no doubt that the witnesses are giving testimony that [plaintiffs'] this issue has divided the district courts in our circuit. compare rates tech. inc v. mediatrix see federal courts improvement act of 2000, pub. l. 106-518 202, codified at 28 u.s.c. 636(e). sara lee corp., 900 f.2d 522, 525 (2d cir. 1990) that magistrate judges may impose sanctions under rule court's vindication of its authority. there is no illogic or inconsistency in congress's withholding of authority to statutory exception to the general principle that magistrate judges may not dispose of claims when sanctions. a significant part of the purpose of an imposition of sanctions is to vindicate the authority function is fulfilled by 636. the function served by rule 72 is to regulate the procedures to be followed in proceedings this case, because we agree with appellants' second basis for challenging the order of the district court. whether magistrate judges have the authority to impose sanctions under the current rule 11, and i need not comment on independent of the merits of the underlying litigation, arising instead from the duty of candor to the motion for rule 11 sanctions to a criminal contempt charge insofar as each is "a separate and which case it is nondispositive and falls within the powers conferred on magistrate judges by brief), cravath, swaine & moore llp, new york, ny, for 527 f.3d 259, 265 (2d cir. 2008) (concluding that the list of motions set forth in this subsection is appellants to resolve this appeal. omitted)); alpern v. lieb, 38 f.3d 933, 935 (7th cir. 1994) ("a district judge may refer a dispute about sanctions to a bennett, 976 f.2d at 998 (6th cir.) ("[t]his purported order was dispositive of the rule 11 matter and,7 unmentioned judicial power would be so similar in character to the powers statutorily withheld from three affiliated corporate entities with violations of international law for their involvement in oil federal rules of civil procedure scarcely seems open in this circuit. as noted above, we held in hoar extend to rulings that remand a case to state court, williams, 527 f.3d at 266, that enter default independent from the underlying case," id. (quoting schlaifer nance & co. v. estate of warhol, 194 f.3d defense, a sanction (such as a monetary penalty) that does not do so is in the nondispositive category must be referred to the district judge. that deny a motion to proceed in forma pauperis, woods v. dahlberg, 894 f.2d 187, 187 (6th cir. 1990). cabranes misunderstands and misstates my argument. i have not suggested that congress's grant of done under rule 37, rather than rule 11, but that is a distinction without a difference. the crucial sent to benefit the [plaintiffs'] [w]itnesses, the amount of the overstatement was small (approximately of the court and of the rules of law, and to punish for disrespect of that authority. accordingly a i note that the analysis should be different for a sanction which does, in fact, dismiss a suit or case to determine whether it is dispositive"). 1. "[t]here can be no doubt that the witnesses are giving testimony that counsel persuasive. first, as noted above, contempt proceedings are also independent and collateral not a disparagement of the authority of magistrate judges to preside over matters properly before them. exclude sanctions arising from discovery disputes. ante at 4. from this, judge cabranes concludes that the ninth compensate an aggrieved person or party for the inconvenience and expense caused by the offender's judicially created concept, it makes that intent specific."), then we can and should interpret congress's this category, falls within the non-dispositive group of matters which a magistrate equivalent of an independent claim. cf. williams, 527 f.3d at 265 (citing vogel v. united states office as did five circuits including ours, that magistrate judges are authorized to impose money sanctions. enforce ethical standards upon attorneys appearing before them, while being careful not to rein in seek leave of court before filing further actions, see, e.g., colida v. nokia inc., no. 07 civ. 8056 (kmw), beemiller, inc., 527 f.3d at 265. because rule 11 also requires that a magistrate judge assess the precedents, a statement of fact can give rise to the imposition of rule 11 sanctions only when the whom a rule 11 sanction is imposed. ante at 5-6. counsel for defendants appealed the magistrate judge's september 29, 2006 order to the rule refers to as "dispositive motions"). see fed. r. civ. p. 72 & advisory committee's note. it is clear this terminology is decisions look to whether the sanction imposed by the magistrate judge in fact disposes of a claim or circuit's decision is no longer sound, because, he implies, it rested on the fact that "discovery disputes are within the judge to order without de novo review by the district court, and which is also immediately appealable. see matter of lack authority to impose rule 11 sanctions. whatever force this argument might have had prior to allegation that the benin witnesses gave testimony that plaintiffs' counsel knew to be false. see kiobel, royal dutch petroleum co., no. 02 civ. 7618, 2006 u.s. dist. lexis 71421, at *13 (s.d.n.y. sept. 29, of the record evidence that supported those statements. a motion or answering paper that "[b]y presenting [it] to the court . . . an attorney . . . certifies that . . . section 636(b)(1)(a) provides:2 taken by numerous courts, reasoning by analogy, to find that certain powers were withheld by congress not dispose of a litigant's claim or defense is arguably not so similar to the express exclusions of contempt by reason of the facts so certified. a judge of the district court shall infra at 20. nevertheless, damages are a common remedy for violations of rule 11, and that fact is $5,000 payment--although comprising both a prior balance and future expenses--was made for a claim pressed by a party against counsel for an opposing party. the fact that the "parties" to a rule 11 the magistrate judge and plaintiffs' counsel read this statement as an accusation that plaintiffs' counsel was5 the 2000 amendments, congress stated in the new 636(e)(4) that its decision to confer civil contempt authority on imposition of sanctions under rule 11 is far more nearly analogous to powers granted to magistrate because the imposition of rule 11 sanctions can be deemed "similar" to another function, they must be kendricks dorle kwikpo, anthony b. witah-kote, victor b. wifa, dumle j. kunenu, particular allegation is utterly lacking in support. based on our review of the record, we conclude as a previously withheld, and before congress stated in 636(e)(4) that the express grant of civil contempt 72(a) ("when a pretrial matter not dispositive of a party's claim or defense is referred to a magistrate judge to seven circuits passed on the question whether magistrate judges were empowered to impose independent from the underlying case" and for that reason, "even when a district court lacks subject dismissal of action and is therefore implicitly excluded by 636(b)(1)(a)). analyzing the effects of the acting by referral, and there is no basis to expand this exception, solely by judicial action, to include 1 benefit of the witnesses." j.a. 344. the magistrate judge determined that this figure "overstated the in september 2003, but another witness, john-miller, testified that ejiogu subsequently returned to today. withhold the power to impose a monetary sanction. a literal reading of the statute, with its broad power. it is an a fortiori case. the power to impose a criminal conviction and a sentence of courts, however, have not read the list of exclusions literally. where the exercise of an 7 withhold sanctioning power from magistrate judges. however, since congress amended 636 to jos a. cabranes, circuit judge, concurring: orders sanctioning attorneys pursuant to rule 11 of the federal rules of civil procedure. regardless of whether the district judge should have reviewed the magistrate judge's decision claim in the action, courts have generally concluded that other rulings which would have the same "[a] magistrate judge should . . . issue a report and recommendation for de novo review by the district plaintiffs rely on the ninth circuit's decision in maisonville v. f2 america, inc. to support their matters within their statutory authority," ante at 7, is particularly puzzling. this is scarcely an argument cir. 1990). in maisonville, a panel of the ninth circuit reasoned that rule 11 sanctions were "non- authority in the initial federal magistrates act. see pub. l. no. 90-578, 101, 82 stat. 1107, 1113-14 [not] effectively reviewable on appeal from a final judgment"). if we follow judge leval's proposed similarly, the seventh circuit held in alpern v. lieb that, upon the referral of a rule 11 motion question is whether the imposition of a sanction that does not dispose of a party's claim or defense approached the question by tracing the history of congress's incremental increases in the powers of 21 judges to punish misconduct that occurs before their eyes into a plenary 11 motions are dispositive of a claim and are therefore not properly resolved by order of a magistrate sanctions, but ruling that a sanction striking pleadings with prejudice effectively constitutes involuntary cases where the parties to the litigation have consented to disposition of the case by the magistrate contempt authority, the 2000 amendments express a very significant upgrading of congress's hear and decide, the magistrate judge must promptly conduct the required proceedings and, when in an opinion and order dated september 29, 2006, the magistrate judge denied plaintiffs' "`nondispositive' pretrial matter[s] [are] governed by 636(b)(1)(a)" and "`dispositive' matter[s] [are] defense counsel also point to fourteen statements of the benin witnesses that they contend order dated august 10, 2007. see sp. app. 35, 37. this appeal followed. magistrate judge's denial of rule 37 sanctions against defendants for discovery abuses. as the ninth the panel is evenly divided on the first ground raised in this appeal, with one member of the judge cabranes's next argument is that under "general principles of statutory interpretation," a a plenary power to hold litigants and attorneys in contempt or impose rule 11 sanctions. to do so rule 11 sanction . . . requires the determination of . . . whether the attorney has abused the judicial nigeria to meet with plaintiffs' counsel. id. at 529-30, 621, 648. the benin witnesses also denied [made in it] have evidentiary support . . . ." and rule 11(c) provides for sanctions for abuse of that congress amended it by granting magistrate judges significant contempt powers which it had orders." concurrence of judge cabranes at 8. but using such a broad principle to patrol the border breach, that is not an indispensable part of a sanctioning order. because the injury occasioning the procedure in cases referred to them under 28 u.s.c. 636(b). do magistrate judges have the authority contempt power extends to contempts committed outside the presence of the magistrate judge only in withheld by 636(b)(1)(a) from magistrate judges whether it was imposed by reason of an abuse of a the magistrate judge's power will be moot, as it will be in the case in which the district court rejects the defendants.* sanction on either standard. it is only in the case where the district court would uphold the sanction if specify which powers magistrate judges possess and which they do not. as the commentary to the rule recognizes, that ante at 9. dispositive," and therefore, magistrate judges did have the general authority to impose sanctions under sanctions relating to discovery and sanctions relating to pleadings and motions. demonstrates the opposite. all sorts of motions subject to rule 11 are routinely referred by district nothing remained of the argument that the amended statute should be construed by implication to magistrate judges that it would be difficult to understand why congress would have drawn a i conclude that, while reasonable arguments could have been advanced on both sides of the thereupon, in a summary manner, hear the evidence as to the act or conduct 636(e)(3)-(4). with respect to sanctions however, specific direction from congress is still absent. the magistrate judge held that there was no support whatsoever for defense counsel's civil contempt orders, as the sanction can be imposed to compel compliance with judicial commands judge cabranes would be correct that my argument would "undermine congress's decision to grant sufficiently "dispositive" to be immediately appealable but sufficiently nondispositive to be within a magistrate judge's magistrate judge concluded, that the overestimate had a material impact on the meaning of the both contempts and awards of damages argued in favor of the conclusion that congress had withheld undermines my argument. leval op. infra at 23-24. congress conferred additional powers on for these reasons, i would conclude that the resolution of a motion for rule 11 sanctions is a question under this section an order requiring such person to appear before a judge sanctions and the district court properly reviewed the magistrate's order for clear error."); ocelot oil co. v. sparrow indus., circuits saying no, while the ninth circuit held yes. why would congress's silence on this question they seem to express congress's understanding that magistrate judges possess that power. this federal rules of civil procedure. appellants are defense counsel in an action brought pursuant to the has none after the 2000 amendment in a circuit that has ruled that magistrate judges do have authority to could usefully dispel interpretive disagreement as to congress's intention and obviate further confusion. of this panel. judge cabranes has vigorously asserted that the magistrate judge was authorized by law v. wilder richman sec. corp., 467 f. supp. 2d 228, 232-33 (d. conn. 2006); magee v. paul revere life ins. august term, 2008 9 as reviewed above, judge cabranes understates the extent of contempt authority that congress referring to the rulings over which magistrate judges are granted authority as "nondispositive" of a esther kiobel, individually and on behalf of her late husband, dr. barinem kiobel, bishop citation to those decisions, made in 1992 and 1994, cannot properly govern our analysis of the question than plenary. nonetheless, it is substantial. (3) finally, judge cabranes asserts that acceptance of my congress had withheld from magistrate judges, and which disposes completely of a discreet lighter, less consequential form of the same general species as a holding in contempt. the approach that it arose out of the discovery context. like the many other courts that have ruled that magistrate judges are under rule 11 for abuses relating to pleadings and motions. in explanation, judge cabranes writes, 1 the particular sanction does not determine the party's right to continue to assert the claim). benson magnus ikari, legbara tony idigma, pius nwinee, kpobari tusima, keino r. robinson, on the brief), berger & montague, his, for whatever benefit the airing of our debate may confer if and when the question need be motion with respect to the first statement, having found some support for it in the record, see kiobel v.2 circumscribed. in this case, for example, plaintiffs' motion for class certification was referred to the claim ; for that reason, rule 11 sanctions are immediately reviewable in this court pursuant to the2 847 f.2d 1458, 1462 (10th cir. 1988) ("discovery is clearly a pretrial matter, and magistrates thus have general authority authorization of 636, the absence of any exclusion for sanctions, and the fact that a money sanction is an opposition to those objections. in that opposition, defense counsel stated, inter alia: (1) "now we after intransigent refusal to comply. the similarities between orders of sanction and of contempt are 2008 wl 4449419, at *2 (s.d.n.y. sept. 29, 2008). least in a circuit such as ours where magistrate judges are authorized to impose sanctions for discovery defense counsel's statement is false. the record evidence does not show that the $3,000 in question under rule 11 "requires one party to pay money to another" and "the denial of a request for sanctions second circuit could justify ruling today that a monetary sanction for abuse of rule 11 is dispositive, there was no adequate basis in counsel's conduct to justify its imposition. 2 defense (in which case it would be dispositive and beyond the magistrate judge's authority), or whether, see decisions of the first, second, fifth, ninth, and tenth circuits, listed in footnote 6, supra.10 10 federal practice and procedure 3068.2, at 342 (3d ed. 1997) (advocating a "textured view" of 636, u.s. at 396). he notes further that "the imposition of sanctions is an issue collateral to and a question raised but not resolved in this appeal--the authority vel non of magistrate judges to issue our debate helpful in answering the question. in the meantime, because the question remains congress intends magistrate judges to exercise sanctioning power. the very reasons that persuaded the 28 u.s.c. 636(b)(1)(a), the district court affirmed the imposition of sanctions in an unpublished magistrate. accordingly, any motion not listed, nor analogous to a motion listed in have the authority to issue rule 11 sanctions." ante at 9. i can see no reason why. as judge cabranes misbehavior. the most relevant provision is subsection (e), 28 u.s.c. 636(e), dealing with the magistrate judges certain powers and withhold others." the reason, however, that judge cabranes and warranted, however, because "the amount of the overstatement was small (approximately $3,000) and did not materially sanctions would create a confusing body of law as to what orders are dispositive under 636(b), and the maisonville"); see also watson v. maxwell, 142 f.3d 447, 1999 wl 228223, at *1 n.1 (9th cir. apr. 28, 1998) (unpublished) magistrate judges have sanctioning power "for matters within their statutory authority," then it follows knows to be false."5 authorizations, limited by explicit exclusions, communicates no suggestion of denial of the power to beyond the authority of a magistrate judge under 28 u.s.c. 636(b)(1)(a). this limited authority over matter of law that none of the statements identified by the district court meet this standard, and we inspection suggests, and because many of the significant points require an understanding of the gradual witness may have been confusing units of currency; the witness may have been confusing billion and 23 minimal grant of authority to magistrate judges to punish misconduct that occurs before their eyes into were so obviously false that plaintiffs' counsel must have known of their falsity. the strongest of these section 636 does not specifically deal with sanctions. we have held in thomas e. hoar, inc. v.1 magistrate judges from imposing sanctions, and i were trying somehow to defend the contrary rule, "[d]iscovery motions fall within the ambit of rule 11." in 1993, after the ruling in maisonville, rule 11 judge cabranes's observation that "coercive authority is entrusted to magistrate judges for perhaps judge cabranes's principal argument is that the imposition of a sanction under rule 11 furthermore, judge cabranes's attempt to discredit the continuing pertinence of maisonville on the ground that (and judge cabranes does not dispute that congress has authorized magistrate judges to punish magistrate judge for a recommendation under 636(b)(1)(b) or 636(b)(3), but the magistrate judge may not make a the amount allegedly sent by plaintiffs' counsel to the benin witnesses (insofar as any exists) does not the issue that splits our panel, but which is not necessary to the resolution of this case, is the 236, 240 (9th cir. 1991) ("the authority of magistrates to impose discovery sanctions is established by 28 u.s.c. 636 the authority of magistrate judges to impose sanctions under rule 37. explaining "[i]t may well be that the witness was referring to a multi-year or multi-decade contract; the although this court has not determined whether an order granting rule 11 sanctions is 4449419, at *2 n.4 (s.d.n.y. sept. 29, 2008) ("whether motions for sanctions are dispositive or 636(b)(1)(a) broadly empowers magistrate judges to "hear and determine" any pretrial matter magistrate judges were authorized to impose sanctions (so long as the particular form of sanction, such the appellants in this matter--with violating rule 11(b)(3) of the federal rules of civil procedure, attempt to settle this issue now would only create more problems. congress's gradually increasing confidence in magistrate judges, and it then asked whether these indicia could impose sanctions under the rule 11 for actions not related to discovery. powers "shall not be construed to limit the authority of a magistrate judge to order sanctions." at that $3,000) and did not materially change the nature of the statement," id. at *34. the magistrate judge covered by 636(b)(1)(b)." gomez v. united states, 490 u.s. 858, 873-84 (1989); see also fed. r. civ. p. to enter an order only as to a `pretrial matter . . .' that is not dispositive of a `claim or defense of a 636(b)(3), where the district judge must review the magistrate judge's report and recommendations de exploration and development in nigeria. see kiobel v. royal dutch petroleum co., 456 f. supp. 2d 457 for the second circuit background obligation. judge cabranes does not contend, nor can he in the face of 636(b)(1)(a), that magistrate misdemeanor criminal cases heard by magistrate judges with the consent of the defendant notwithstanding that the shell petroleum development company of nigeria had annual pre-tax magistrate judges to impose sanctions, since congress passed the 2000 amendments, all indications before: jacobs, chief judge, leval, and cabranes, circuit judges. 5 judges considerable independent authority over contempt adjudications, both criminal and civil, as "now we have learned that seven of the identified witnesses are being paid for their testimony." j.a. 344.2 i am persuaded by the reasoning of the sixth and seventh circuits holding that a magistrate 2 nondispositive."); hoar, 900 f.2d at 525 (2d cir.) ("monetary sanctions pursuant to rule 37 for noncompliance with designation from commissioner, to magistrate, to magistrate judge). id. at 865-71. the court noted pleadings, one could reason that a district judge is better suited to determine the necessity or propriety appearing, refusal to take the oath or affirmation as a witness, or, having taken the court in 1990 in cooter & gell reasoned that criminal contempt charges and rule 11 sanctions were discovery while denying them authority to impose sanctions under rule 11.13 11 only whether magistrate judges have authority to impose rule 11 sanctions when acting by referral, any powers congress "false" is sanctionable. reference to a dictionary shows that the first definition of "false"--"not corresponding to the f.3d 259, 26465 (2d cir. 2008). as to nondispositive matters, the magistrate judge may rule, but as to civil procedure. the act does not provide a direct answer. accordingly, it is necessary to search its [a] judge may designate a magistrate judge to hear and determine any pretrial magistrate judges have summary criminal contempt authority over anyone in their presence, under congress silently deemed maisonville overruled on a ground advanced for the first time today by judge cabranes, and in magistrate judges "the power to punish summarily by fine or imprisonment, or both, such resolution of a plaintiff's claim. at the time of the sixth and seventh circuit decisions, the analogy to matter that magistrate judges are authorized to impose money sanctions, all that has changed. in a to district judges, that in reviewing orders of magistrate judges imposing sanctions under rule 11 they action; that an imposition of sanctions is independently appealable; and that the parties to rule 11 8 nor is it correct to describe congress's present stance on the question as "silence." while "an action for damages . . . the desired remedy is a monetary award to the movant," ante at 6, judge cases," gave magistrate judges the full coercive "civil contempt authority of the district court" alien tort statute ("ats"), 28 u.s.c. 1350, for alleged violations of customary international law in kiobel, 2006 u.s. dist. lexis 71421, at *32-33. the source of this supposed error, in the magistrate7 12 sanction orders should be considered "dispositive" of a party's claim. not a word of the discussion11 judge of that court. standards upon attorneys appearing before them, while being careful not to rein in zealous advocacy." judgment, callier v. gray, 167 f.3d 977, 981 (6th cir. 1999), that deny a motion to certify a district court standard." 900 f.2d 522, 525 (2d cir. 1990). i recognize that some of the reasons which persuade me the district court's decision to impose sanctions based on the statements challenged by plaintiffs has of rule 11 did not result in monetary sanctions, we nevertheless review the ruling because of the injurious effect that a 3 them just before the end of discovery--it was reasonable to infer that plaintiffs' counsel knew that augustine nume john-miller, charles baridorn wiwa, israel pyakene nwidor, $3,000 from the $15,195 that it alleged was sent to the benin witnesses--such an error does not violate including ours, considered whether magistrate judges were empowered under the pre-2000 statute to authority or experience in discovery matters than in dealing with pleadings and motions. these because we decide this appeal on a different basis, we could simply ignore the mooted significance of maisonville has been diminished by subsequent changes in the relevant law, and that nevertheless, magistrate judges may summarily punish acts of criminal contempt that occur in the judge cabranes thus advances the surprising proposition that congress silently, without leaving 14 tends strongly to confirm the power. just as, prior to the 2000 amendments, congress's express sanctioning authority in the context of discovery, pursuant to rules 26 and 37, but not with respect to royal dutch petroleum company, shell transport & trading company plc, shell who signed the opposition filing, see id. at *36, but he declined to impose monetary sanctions for nor does this create an inconsistency with congress's effort in 636(b)(1)(a) to withhold from magistrate15 sanctions for discovery abuses are now imposed pursuant to rule 37 of the federal rules of civil procedure.9 in thomas e. hoar, inc. v. sara lee corp., for example, we held that "[m]onetary sanctions pursuant to circuits concluded they were not so authorized.7 judge cabranes believes they support his argument that magistrate judges lack authority to impose as a sanction of dismissal of a claim, did not effectively dispose of a party's claim or defense). two6 20 magistrate judges after bennett and alpern, thus, in his view, undermining the significance of those litigants and attorneys in contempt." it is indisputable that the contempt authority conferred is less for example, judge cabranes proposes to distinguish rule 11 sanctions from rule 37 try to make the issue moot by declaring "regardless of whether the standard of review is deferential or alleging that defense counsel's statements had no evidentiary support. pursuant to rule 11, plaintiffs punish acts of contempt occurring in their presence, 636(e)(2), but must refer the matter to the district order was dispositive of the rule 11 matter and, consequently, dispositive of a `claim.'" id. as such, judge cabranes argues that the decisions of the five circuits, including ours, that have upheld truth or reality; not true," webster's third new international dictionary 819 (17th ed. 1976)--is virtually identical to one award of sanctions shares features in common with an award of monetary damages, a power withheld benin. id. at 530. while there might have been reasons--perhaps even good ones--for these contempt authority to magistrate judges in the 2000 amendments: a party's claim, is nonetheless not within a magistrate judge's powers. id. at 875-76. the court not to be taken literally. the procedures prescribed by the rule are tailored to whether the magistrate judge has authority the imposition of sanctions under rule 37. in the context of rule 37, however, these reasons are not collateral and is not dispositive of any claim or defense in the suit, we could reasonably have concluded, sanctions should be sanctioned for a violation."). as a result, a motion for the imposition of rule 11 judge of the court may reconsider any pretrial matter under this subparagraph (a) expressly grant contempt powers to magistrate judges and our circuit ruled in the context of a discovery forcefully argues, indeed as an a fortiori case, that congress intends magistrate judges to exercise we cannot bootstrap . . . the minimal grant of authority to magistrate "[t]here can be no doubt that the witnesses are giving testimony that counsel knows to be false." j.a. 344.3 magistrate judges to select juries in criminal trials, at least absent the consent of the defendant, id. at pertinent document; (4) refusal to appear after having been subp[o]enaed or, upon the power to impose the monetary sanction (with the consequence that the sanction could be sanctions are often different from the parties to the underlying matter, since it is often the attorney on by 636(b)(1)(a) involve the determination of the suit or of a claim or of a party's right to maintain the power (with the consequence that the magistrate judge was empowered to do no more than 2. "[w]e know that between february 29, 2004 and april 2, 2004, berger & on circumstantial evidence--including the size of the payments to the witnesses and the rush to depose related question of when a lower court's order is appealable pursuant to the collateral order doctrine. sanctions." judge cabranes's suggestion to impute to congress under "general principles of statutory construction" (all of these being motions that would dispose of a litigant's claims), as well as motions for injunctive the section of the act specifying the powers of magistrate judges is 636. section sanctioning power under rule 37 for abuses related to discovery, but not to exercise sanctioning power district court. applying a deferential "clearly erroneous or contrary to law" standard of review under analogy in the fact that "[a]wards of sanctions . . . are treated as separate claims for purposes of claim from those pressed in the underlying action. indeed, we have recognized this distinction in our sanctions under rule 11. each of the observations judge cabranes makes about the separate jos a. cabranes, circuit judge: mano a mano on the concept of "dicta within dicta." i agree with judge jacobs that amendment to the federal rules of civil procedure or the governing statute1 federal magistrates act, pub. l. no. 90-578, 101, 82 stat. 1107, 1113-1428 (1968), codified at 28 u.s.c. 636(e). f.3d at 936 (imposition of rule 11 sanctions is dispositive), with maisonville v. f2 america, inc., 902 f.2d acting with the consent of the parties, see, e.g., 28 u.s.c. 636(e)(3)-(4), i consider only provisions related to a magistrate certainly no change in the governing legislation since our decision in hoar could support the prods. co., 258 f.3d 509, 514-17 (6th cir. 2001)). on this point, the supreme court has compared a approval of the holding of two of the seven circuits to have addressed the question would also require imputation of an to order rule 11 sanctions themselves, or only to make a recommendation of rule 11 sanctions to the appropriate, issue a written order stating the decision." (emphasis added)). while i have no dispute as to the accuracy of those observations, i do not understand why congress's amendment of 636(e) giving magistrate judges contempt powers in a circuit where where it has been shown that the magistrate judge's order is clearly erroneous or (argued: january 12, 2009 decided: january 8, 2010) sanctions. to do so would undermine congress's decision to grant which suggests that congress intended to distinguish between a magistrate judge's authority to sanction under rule 37 should assume, pursuant to the general principles of statutory construction, that congress intended to midlantic nat'l bank v. new jersey dep't of environmental protection, 474 u.s. 494, 501 (1986) ("the normal that court concluded, a rule 11 motion cannot be resolved by an order of a magistrate judge; rather, must be made by a district judge [and not a magistrate judge] is not a disparagement of the authority of magistrate judges 28 u.s.c. 636(b)(1)(a). undecided, district judges would be well advised to review magistrate judge orders imposing sanctions undoubtedly true that a sanction order may, and frequently does, include a monetary award to 10 pursuant to 28 u.s.c. 636(b)(1)(a), magistrate judges are authorized to resolve "pretrial relief and to suppress evidence in a criminal case. id. 636(b)(1)(a). section 636(b)(3) then adds a entered pursuant to appellees' rule 11 motion resulted in an award of money damages," the sixth "non-exhaustive"). dispositive motions, and certain other matters, may be submitted to a magistrate (affirming rule 11 sanctions imposed by magistrate judge, citing maisonville). it would be extremely odd if, in 2000, retired chicago police ass'n v. city of chicago, 76 f.3d 856, 869 (7th cir. 1996) ("the fact that an attorney 650, 652 (2d cir. 2005) ("rule 11 sanctions are a coercive mechanism, available to trial court judges, to judge is not authorized to issue an order imposing rule 11 sanctions. i reach this conclusion because10 circuit reasoned that "[n]othing in the [federal magistrates] act expressly vests magistrate judges with defense is a "nondispositive" matter and is therefore "committed to the discretion of the magistrate determine does not mention the imposition of sanctions. nor is the imposition of sanctions prohibited the imposition of a sanction requiring an attorney, or a witness, or a party to pay $100, regardless of whether8 sanctions based on the statements identified by plaintiffs cannot be sustained as a matter of law in light (s.d.n.y. 2006). plaintiffs moved for class certification pursuant to rule 23(c) of the federal rules of was worth nearly ten times that annual gdp of that country. he failed to recognize, however, that one maisonville ruling in amending the statute because of a 1993 change in rule 11 to exclude sanctions related to discovery. hoar), i probably would have ruled that congress withheld the power, by reason of congress's emphatic withholding of matter[s]" by order subject to review by district judges for clear error. excluded from this grant of in this appeal we consider a challenge to the imposition of sanctions under rule 11 of the excluded by the act from the magistrate judges' power to hear and determine are motions seeking telecom, inc., no. 05-cv-2755(js)(akt), 2007 u.s. dist. lexis 48237, at *4 (e.d.n.y. june 29, 2007) effect of disposing of a party's claim (or of a defense) were also intended by congress to be excluded relate to civil suits, are determinations of a party's demands for relief pursuant to the claims pleaded, or of the party's power under 636(b). ante at 3. regardless of whether there is theoretical inconsistency in holding a sanction order to under the collateral order doctrine. this is incoherent. complained of and, if it is such as to warrant punishment, punish such person in the 636(b)(1)(a) that it should be deemed excluded by implication. thus, this circuit ruled in 1990 that u.s. dist. lexis 28812 (s.d.n.y. mar. 31, 2004). on march 31, 2004, magistrate judge henry b. indeed, coercive authority is entrusted to magistrate judges for matters within their statutory authority. dispositive matters, the magistrate judge may do no more than recommend. id. in turn, the district power to hold litigants and attorneys in contempt or impose rule 11 independent proceeding at law that is not part of the original action.'" id. (quoting cooter & gell, 496 decision in 2000 to grant only limited contempt powers as an implicit ratification of the earlier sixth judges are without "statutory authority" to handle those motions. if judge cabranes is correct that f.2d at 525 (quotation marks omitted). observing that "[m]atters concerning discovery generally are considered that the express grant of civil contempt authority in consent cases "shall not be construed to limit the york (kimba m. wood, chief judge) sanctioning appellants pursuant to rule 11 of the federal rules of with the constitution and laws of the united states." judge cabranes contends that congress should be understood to have disregarded the ninth circuit's19 prescriptions of congress. in any event, regardless of how the pre-2000 act should have been construed, after congress as judge cabranes explains in his opinion for the court, that the sanction must be vacated because 872. seven circuits, including ours, considered whether magistrate judges were empowered under the pre-2000 statute to from the underlying case." schlaifer nance & co. v. estate of warhol, 194 f.3d 323, 333 (2d cir. 1999). empowered to impose sanctions (so long as the sanction does not effectively dispose of a claim), the ninth circuit of similar powers by magistrate judges. congress categorically refused to allow magistrate judges to contempt charge insofar as each is "a separate and independent proceeding at law that is not part of the original action" magistrate judges had the power to impose a sanction for discovery violations under rule 37 of the analogous to reviewing pleadings for conformity with rules 8 and 10 (and rule 9, where applicable) of attend education courses, see, e.g., lavigna, 159 f.r.d. at 437, or a requirement that an abusive litigant 636(b), yet any imposition of sanctions would be dispositive enough to be immediately reviewable 3581(b)(8), 3571(b)(6)). the next sentence of the opposition read: "there will be further discovery into the question of who caused1 amended the statute to expressly confer on magistrate judges a range of contempt powers, little or further explained below, than the similarity between sanctions and awards of money damages in on this appeal, we are asked to consider whether magistrate judges, when acting pursuant to a "[w]e know that between february 29, 2004 and april 2, 2004, berger & montague wired $15,195 to the4 magistrate judges in certain classes of cases "should not be construed to limit the authority of a magistrate judge to order between rule 11 and rule 37 sanctions can become quixotic. how does one classify misrepresentations violate rule 11. the decision of the magistrate judge to the contrary constituted an error of law. 9 intentions in the absence of a clear congressional mandate. noted the similarities. see cooter & gell v. hartmarx corp., 496 u.s. 384, 396 (1990). both sanctions and dispositive. ante at 5. he points out that, in a different context, "the supreme court has compared a between the imposition of sanctions by magistrate judges under rule 11 and rule 37, if we were united states court of appeals conclusion that magistrate judges are empowered to impose sanctions. b. party.'" 976 f.2d 995, 998 (6th cir. 1992). observing that the "magistrate judge's purported order rule 11, which relates to pleading, motions, and other papers. he contends that sanctions under rule would undermine congress's decision to grant magistrate judges certain powers and withhold others. corp., 66 f.3d 21, 24-25 (2d cir. 1995) (affirming district court's sua sponte imposition of rule 11 would have relied on the literal terms of the statute. section 636(b)(1)(a) granted broad powers, except in the same categories of cases covered by subparagraph (3). analysis is that defense counsel need not prove the truth of their accusation, only that it was not showing that only $12,195 had actually been sent. district court's reference under 28 u.s.c. 636(b), are authorized to issue orders sanctioning attorneys8 in conclusion, the developments in the law during the past two decades seem to me to have rule 11 sanctions imposed in this case are non-dispositive. accordingly, the magistrate had jurisdiction to order rule 11 expressly granted or withheld. sanctions were more nearly analogous to awards of money damages excluded by 636(b)(1)(a), or would be so similar to those rulings as to be implicitly excluded. see position that magistrate judges can issue orders imposing rule 11 sanctions. 902 f.2d 746, 748 (9th time, the statute was opaque as to whether magistrate judges could impose sanctions. in the absence of a clue of those intentions, left us to guess that it intended to authorize magistrate judges to exercise in contempt, which can involve a criminal conviction and imprisonment (either punitive or coercive), misbehavior in the course of the proceedings. every judicial ruling is determinative of something. the imposition of a longer opaque, much less silent; congress's new observation in 636(e)(4) powerfully suggests that the magistrate judge in maisonville was a rule 11 sanction for a discovery violation, and rule 11 was amended in 1993 to all power to hold in contempt and the very strong similarity between sanctions and contempt. that a motion for rule 11 sanctions gives rise to proceedings that are separate and distinct damages, this is no more true of sanctions awarded under rule 11 than of sanctions awarded under judge for a report and recommendation, which the district court then reviews de novo. see 28 u.s.c. sanctions as an implicit denial of that power? co., 976 f.2d 995, 998 n.7 (6th cir. 1992). damages in a suit for damages. literal reading of the statute, ruled that the selection of the jury in a criminal case, which is not listed that imposition of a monetary sanction that is, a sanction that does not dispose of a party's claim or 1981) ("[t]he magistrate possessed the authority under 28 u.s.c. 636(b)(1)(a) to enter non-dispositive discovery in sum, each of my colleagues would rewrite 636, in a different way. i respectfully suggest that holdings, l.l.c., 347 f.3d 370, 387 (2d cir. 2003). an "abuse of discretion" occurs when a district change the nature of the statement." kiobel, 2006 u.s. dist. lexis 71421, at *34. even though this perceived violation considered nondispositive"). see also colida v. nokia inc., no. 07 civ. 8056(kmw)(hbp), 2008 wl the clerk of court is directed to amend the official caption in this case to conform to the listing of the parties* distinction, courts have generally ruled that congress intended also to withhold the unmentioned authority as including authority to impose rule 11 sanctions. we cannot bootstrap, i submit, the reviewable collateral order, a "conclusive determination . . . completely separate from the merits . . . and dismiss or to permit maintenance of a class action, to dismiss for failure to state a similar, judge leval argues that we should read the 2000 statutory grant of limited criminal contempt subsection (e), in its pre-2000 version, stated:4 pub. l. no. 106-518, 114 stat. 2410. under this section, magistrate judges have limited power to kiobel v. millson district court, in any case referred to them on consent of the parties (pursuant to 636(c)), under magistrate judges, granting them considerable punitive powers, which had previously been absolutely authority of magistrate judges to impose sanctions under rule 11 of the federal rules of civil rowan d. wilson (douglas j. dixon, noah j. phillips, on the they considered the question anew under the amended statute. in the first place, the statute is no rule 11. i am not persuaded by this logic, however, because subsequent events have altered the complicated by the fact that congress amended the act over time, most significantly in 2000, to n.1 (2d cir. 1995); see also agee v. paramount commc'n, inc., 114 f.3d 395, 399 (2d cir. 1997) (holding that district judge. examination of pleadings in response to a rule 11 motion is, for example, functionally circuits in holding that a magistrate judge may do no more than recommend rule 11 sanctions--on the statutory authorization relating to pleadings and motions, presumably some reference to the concept would be found in question. it is altogether possible that the day requiring decision will never come. [that was] allocated to a pre-existing balance unrelated to the benin [w]itnesses." id. at *31. contempt authority that congress has explicitly given to magistrate judges shares all the features of 1989))). in such circumstances, the sanction would have the same effect as the rulings expressly first circuit has held, "rule 11 neither penalizes overstatement nor authorizes an overly literal reading prior to congress's 2000 amendments, there were reasonable arguments on both sides of the sense of rule 72's terminology is to construe the terms "nondispositive" and "dispositive" as distinguishing between reflected in increasing duties and powers entrusted to them by the act. the provisions most likely to sims v. blot, 534 f.3d 117, 132 (2d cir. 2008) (citations and internal quotation marks omitted). here, be authorized to impose money sanctions for discovery abuses, nonetheless lack power to award such discovery matters. accordingly, i see nothing anomalous in the recognition of a magistrate judge's the benin witnesses. that $5,000 transfer included, in the view of the magistrate judge, "$3,000 . . . nigeria. they seek review of an order of the united states district court for the southern district of 07-3903-cv novo."). counsel knows to be false;" and (3) "[w]e know that between february 29, 2004 and april 2, 2004,1 rule of statutory construction is that if congress intends for legislation to change the interpretation of a have suggested that the pre-2000 version of the act implicitly denied sanctioning power. thus, the equally to contempts, which congress has now (within limits) clearly placed in the nondispositive, we also reject the magistrate judge's determination that there was a lack of evidentiary support them. nor do the sanctions imposed here have an effect similar to those motions magistrate judge are properly characterized as dispositive or nondispositive). the need for guidance is sitting: (1) disobedience or resistance to any lawful order, process, or writ; (2) whether the standard of review is deferential or de novo, it would impose the same sanction, the issue of the competence of magistrate judges to rule in different areas, but whether congress entrusted them with the power. judge jacobs expresses puzzlement over what he sees as "incoheren[ce]" in considering a sanction order14 federal courts improvement act of 2000, pub. l. 106-518, 202, 114 stat. 2410, 2412-13 (2000) judges should not be taken to imply that they lack the power to impose sanctions." issue an advisory report subject to de novo review by the district judge. see 28 u.s.c. 636(b)(1)(a); see cabranes overstates the degree of similarity between an action for damages and an imposition of motion. see id. at *37. this brief argument contains three substantial mistaken premises. (1) perhaps least important, from the underlying action is apparent from the fact that, in the majority of cases, rule 11 proceedings answer that question in this case because, regardless of a magistrate judge's authority, the rule 11 question. a strong argument against finding sanctioning power in the statute would have been that, in gomez v. united states, 490 u.s. 858 (1989), the supreme court, departing still further from a 37 (and judge cabranes does not dispute that rule 37 sanctions are deemed nondispositive and thus conclusion ante at 9 n.13. but the ruling of the ninth circuit did not depend on the fact that the sanction was imposed in the sentencing authority within the range specified by the code for class c misdemeanors review is deferential but would withhold it if review is de novo that a higher court will need to decide the 19 intention contrary to the intention congress expressed in 636(e)(4). in short, in passing the 2000 amendments, congress expressed a very much enhanced trust in discovery violations are not specifically excepted under 28 u.s.c. 636(b)(1)(a) and, in general, they are not of the same matter jurisdiction over an underlying action, it still possesses jurisdiction to impose sanctions arising circuit concluded that "[n]othing remained but to execute the judgment; therefore, this purported sixth and seventh circuits that the imposition of a sanction should be considered dispositive apply "presumption in favor of continuing judge-made law absent clear congressional intent otherwise" with a judicial order by a civil contempt order. rule 11 sanctions. second, the observation that rule 11 sanctions are effectively independent claims the 1993 amendments to rule 11, and thus that there was no split among the circuits as to whether magistrate judges dispositive of a claim, is the approach that best implements congress's intent. see 12 wright & miller, thomas e. hoar, inc. v. sara lee corp., 900 f.2d 522, 525 (2d cir. 1990).5 arguments do not seek to "undermine" congress's decision. they seek to interpret congress's court." id. in further support of this conclusion, the sixth circuit noted that "congress specifically matters falling within this excepted list, the extent of the magistrate judge's powers is to take evidence defiance of the process of the district court or misconduct in the presence of a (internal quotation marks omitted)). need to decide the question. especially because the question has proved more complex than superficial from magistrate judges jurisdiction over contempt proceedings." bennett v. gen. caster serv. of n. gordon judges is less complete than the contempt authority of district judges, he cannot dispute that the powers on magistrate judges under 28 u.s.c. 636(e). see federal courts improvement act of 2000, court to hear and determine any pretrial matter "except for certain enumerated dispositive motions [as to which] he may litigants. see generally fed r. civ. p. 11 advisory committee's notes ("the person signing, filing, recommendation only, which is then reviewed de novo by the district judge. withheld. to be sure, the contempt power conferred on them is not the full power possessed by a attorneys appealing fee awards against them must appeal in their own names). to preside over matters properly before them. indeed, coercive authority is entrusted to magistrate judges for matters the order of the district court on two grounds. first, they contend that a magistrate judge is not orders[, in this case, fees and costs in connection with a motion to compel discovery]."); grimes v. san francisco, 951 f.2d had the effect of disposing of a claim. the court went on to caution, citing the moore treatise, that a sanction which, for sanctioned the plaintiff's attorney under rule 11 for filing a frivolous motion to reconsider the authority of a magistrate judge to order sanctions" communicates an understanding on the part of provides the source of his authority to impose sanctions for the violation of discovery orders. independence from the underlying action that judge cabranes points to as proof that magistrate judges magistrate judge for a report and recommendation; the disposition of that motion was unquestionably decision with independent effect."). "dispositive" determination that can be referred to a magistrate judge under 636(b) for a report and for all criminal contempt adjudications, a new subparagraph (5) gave magistrate judges brand, inc. v. i.o.b. realty, inc., no. 98 civ. 10175 (jsm), 2002 wl 59434, at *10 (s.d.n.y. jan. 16, which "requires the court to go beyond the label and consider the impact of the action taken on the the federal rules of civil procedure. each of these rules requires magistrate judges to assess the judgment on the pleadings, summary judgment, dismissal of criminal charges, authority to maintain an 1987) ("[rule 11 sanctions] do[ ] not extend to isolated factual errors, committed in good faith, so long clearly answered by any statute or rule, and has generated considerable discussion among the members sanctioning power.9 peter nordberg (stephen a whinston, carey r. d'avino, confidence in magistrate judges to exercise punitive and coercive contempt powers. (2) judge federal rules of civil procedure, so long as the particular sanction did not determine a claim. see 4 underlying action though it may be ultimately determined to lack subject matter jurisdiction over that the power to impose criminal convictions for contempt and to punish contempts by a term of abuse. had we faced this question in the 1980s, when congress withheld contempt power from recommendations to district judges on whether rule 11 sanctions should be imposed. we do not issue of a magistrate judge's authority to hold persons in contempt, congress explicitly withheld such discovery orders usually are committed to the discretion of the magistrate, reviewable by the district court under the contempt of the authority of such magistrate judge constituting misbehavior of any person in 13 appellants. may determine. rule 11 sanctions are not listed in the group of dispositive matters, and i have each set forth our arguments. if and when a case arises in which a court needs to decide matter pending before the court, except a motion for injunctive relief, for judgment sanctions and criminal contempt citations would make subjecting them to differing levels of scrutiny remedy is a monetary award to the movant. as noted above, the grounds for a rule 11 motion are magistrate judges were authorized at the time to exercise. and the bennett opinion further noted the catchall provision that magistrate judges may be assigned "such additional duties as are not inconsistent and her lack of authority to sanction under rule 11. the opposite of what judge cabranes contends. a further problem with judge cabranes's focus on the sixth and seventh circuit decisions in existing balance, see id. at *32, but the source of that balance is not clear. it could very well be that the claim upon which relief can be granted, and to involuntarily dismiss an action. a of the court, or commit such person upon the conditions applicable in the case of 2 furthermore, numerous district court decisions, which judge cabranes disregards, have for defense counsel's allegation that plaintiffs' counsel "wired $15,195 to the benin republic for the order for interlocutory appeal, vitols v. citizens banking co., 984 f.2d 168, 169-70 (6th cir. 1993), that testimony so elicited was likely to be false. more concretely, defense counsel point to moments during dennis jacobs, chief judge, concurring: sanctions pursuant to rule 11. ambiguity. see post. fortunately, we need not decide whether the district judge applied the correct expenses of only $1 billion and nigeria's annual gross domestic product during the relevant time period 11 if i had been required to rule on the question under pre-2000 law (without regard to my circuit's decision in5 motions for class certification is not comparable to the broad authority of a magistrate judge over discovery obligation or an abuse of an obligation imposed by rule 11. i do not see how we in the8 an attorney is immediately appealable pursuant to the collateral order doctrine. see macdraw, inc. v. cit person who is subject to the court's ruling; both can also be employed to compensate the victim of the disputes."12 support for this argument in any statute, rule, or judicial opinion. if anything, it seems to demonstrate commonly imposed forms of sanctions do not dispose of any underlying claims. a sanction that does sufficiency and validity of the pleadings. under rules 8, 9, 10, and 12, the magistrate judge may only that magistrate judges are empowered to impose a monetary sanction. 37 for discovery misbehavior are completely different from sanctions under rule 11. sanctions for abuses relating to pleadings and motions. there is no meaningful difference between impose contempts. upon the occurrence of contumacious conduct, the statute provided that (1968). in 2000, congress amended 636 to give magistrate judges limited contempt powers. now, discovery orders usually are committed to the discretion of the magistrate, reviewable by the district court under the the defenses of the defendant unaffected. imposing rule 11 sanctions may direct the offender to publish the fact that sanctions have been claim . . . , and to involuntarily dismiss an action." 28 u.s.c. 636(b)(1)(a); see williams v. beemiller, inc., consent of the parties under 28 u.s.c. 636(c). because magistrate judges have substantially greater authority when


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