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GLD-258 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

Nos. 12-2722 & 12-3000

___________

HARRY F. SMITH,

Appellant

v.

FRANCIS F. REBSTOCK; EUGENE EDWARD T. MAIER; DAMIEN SAMMONS;

KATHERINE LEWIS; FELINA GUSTOSON

____________________________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania of

(D.C. Civil No. 2-10-cv-01515)

District Judge: Honorable Gene E. K. Pratter

____________________________________

Submitted for Possible Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 

10.6

August 16, 2012

Before: FUENTES, GREENAWAY, JR., and BARRY, Circuit Judges

(Opinion filed: September 12, 2012)

_________

OPINION

_________

PER CURIAM

Harry F. Smith, proceeding pro se, appeals from two orders of the District Court. 

For the reasons that follow, we will summarily affirm. 
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Because we write primarily for the parties, who are fully familiar with the 

background of this case, we set forth only the facts and procedural history that are of 

central relevance to our decision. Smith filed a pro se civil rights complaint in District 

Court against five defendants, including Assistant District Attorney Damien Sammons 

and Philadelphia Department of Human Services social worker Felina Gustoson. 

According to the complaint, Smith had been charged with various sex offenses in state 

court; a jury found him not guilty of all criminal charges in April 2009. Smith then filed 

the civil rights suit against the defendants related to his prosecution. The District Court 

granted Smith leave to proceed in forma pauperis. The U.S. Marshals Service effected 

service, or attempted to effect service, of the complaint, but was unable to locate and 

serve defendants Gustoson and Sammons. The three served defendants subsequently 

moved for dismissal of the claims against them. The District Court granted their motions 

for dismissal, and we affirmed those decisions. 

Most recently, the District Court denied Smith’s requests for entry of default 

judgment against defendants Gustoson and Sammons and vacated the referral to the 

magistrate judge. Smith timely appealed both of these orders. 

We review for abuse of discretion the denial of Smith’s requests for default

judgment against the two defendants upon whom the U.S. Marshals Service was unable 

to effect service. See Chamberlain v. Giampapa, 210 F.3d 154, 164 (3d Cir. 2000). We 

find none here. The District Court properly explained that a default judgment cannot be 

entered on a complaint that has not been validly served. See Petrucelli v. Bohringer and 
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Ratzinger, 46 F.3d 1298, 1304 (3d Cir. 1995) (citing Gold Kist, Inc. v. Laurinburg Oil 

Co.

Smith also appeals the order vacating referral of the case to a magistrate judge. 

The District Court designated the Magistrate Judge to preside over the case pursuant to 

Section 636(b)(1)(A). Under Section 636(b), “magistrates may be designated to . . . hear 

and determine any pretrial matter, except for eight categories of ‘dispositive’ pretrial 

matters; and conduct hearings and recommend dispositions with regard to the eight 

excepted matters.” 

, 756 F.2d 14, 19 (3d Cir. 1985)).

Taberer v. Armstrong World Indus., Inc., 954 F.2d 888, 902 (3d Cir. 

1992). During the pendency of Smith’s lawsuit, the Magistrate Judge issued only nondispositive orders, such as the one directing Smith to file a response to a motion to 

dismiss, while the District Court Judge decided all dispositive motions, such as the 

motions to dismiss. Section 636(b) contains no limitation on a district court’s power to 

resume control over a case that has previously been referred to a magistrate judge. See

28 U.S.C. § 636(b); see also United States v. Wecht

Smith’s submissions include statements largely irrelevant to the matters before us, 

but one of his assertions deserves mention. Smith argues that we did not have 

jurisdiction to decide his prior appeal of the decisions granting the motions to dismiss 

, 484 F.3d 194, 217 (3d Cir. 2007) 

(holding that district courts have wide discretion in the management of their cases). In 

vacating the referral under Section 636(b), the District Court was not required to make 

any showing of good cause or extraordinary circumstances in order to do so. 

Accordingly, we reject any contention that the District Court committed error under 

Section 636.
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because all matters were not resolved as to all parties. As we noted in our decision, 

however, the two defendants who never were served were not made parties to the suit 

and, thus, even though the District Court did not adjudicate the claims against these two 

defendants, its orders were final and appealable. See De Tore v. Local #245 of the Jersey 

City Pub. Emps. Union, 615 F.2d 980, 982 n.2 (3d Cir. 1980); United States v. Studivant

Because neither appeal currently before us presents a substantial question, we will 

summarily affirm the District Court’s orders entered May 18, 2012, and June 14, 2012. 

, 

529 F.2d 673, 674 n.2 (3d Cir. 1976). 

See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.