UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

USCOC of New Hampshire RSA #2, Inc.

a Delaware corporation doing business as

US Cellular

v. Civil No. 05-cv-327-JM

Town of Bow, New Hampshire

O R D E R

Joan and Lee Herrington (the “Herringtons”) move for

reconsideration of my December 22, 2005 order denying their

motion to intervene in this case. Plaintiff USCOC of New

Hampshire RSA #2, Inc. (“US Cellular”) objects.

 The motion for reconsideration presents the issue of whether

in a civil case where the existing parties have consented to the

magistrate judge’s jurisdiction a person who seeks to intervene

in the case must also consent to the magistrate judge’s

jurisdiction before the magistrate judge may rule on the motion

to intervene. The Herringtons assert for the first time in their

motion for reconsideration that: (1) they did not receive notice

of my assignment as contemplated by this court’s local rules; (2)

they did not receive notification of their rights regarding

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consent; and (3) they did not consent. See Mot. for Recons. of

Abutters Joan and Lee Herrington at 5. The Herringtons request

that I refer their motion for reconsideration, and the motion to

intervene, to an Article III judge. Id. at 6.

There is a split of authorities as to whether the consent of

a person who seeks to intervene in a case to a magistrate judge’s

jurisdiction is required where the existing parties in the case

have already consented. Compare People Who Care v. Rockford Bd.

of Educ., 171 F.3d 1083, 1089 (7th Cir. 1999) (finding that where

the parties in the case have consented to the magistrate judge’s

jurisdiction to decide the case the magistrate judge has the

power to rule on motions to intervene as a necessary and proper

incident to the power to decide the underlying case), with New

York Chinese TV Programs v. U.E. Enters., 996 F.2d 21, 25 (2d

Cir. 1993) (finding that absent the consent of the person who

seeks to intervene in the case a magistrate judge’s decision on a

motion to intervene should be deemed a report and recommendation

to the district judge). In my view, the reasoning of the Seventh

Circuit in People Who Care is more persuasive. Reassigning a

motion to intervene to a district judge in a case where the

parties before the court have already consented to proceed before

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1The Herringtons’ claim that they lacked notice that this

case had been assigned to a magistrate judge lacks credibility. 

The Herringtons are represented by counsel who have appeared in

this court on numerous occasions. The civil docket for this

case, which the Herringtons’ counsel must have checked before

filing the motion to intervene, states that this case has been

assigned to a magistrate judge. And if that were not enough, the

docket number for the case ends with my initials, “JM,”

indicating that I am the presiding judge. The Herringtons made

four filings with the court using that docket number, beginning

on November 4, 2005, before objecting to my jurisdiction on

January 6, 2006 after I denied their motion to intervene. See

Document Nos. 7, 8, 13 and 16. Thus, the assertion of the lack

of notice smacks of opportunism. 

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a magistrate judge, particularly in a case such as this where it

is clear that the would-be intervenors had notice of my

assignment before I ruled on their motion,1 necessarily leads to

a duplication of effort and delay in the case before it has even

been determined that the would-be intervenors should properly be

classified as parties in the case. Nevertheless, in order to be

as protective as possible of whatever rights the Herringtons may

have to have a district judge consider their request to

intervene, I will follow the Second Circuit’s approach in New

York Chinese TV Programs in this case.

Accordingly, I direct the clerk of court to randomly

reassign the Herringtons’ motion to intervene (document no. 7) to

one of the district judges. My December 22, 2005 order (document

no. 15) should be deemed a report and recommendation to the

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district judge. The Herringtons’ motion for reconsideration

(document no. 17) should be deemed a timely objection to my

recommended disposition. US Cellular’s objection to the motion

for reconsideration (document no. 18) should be deemed a response

to the Herringtons’ objection. Further consideration of whether

the Herringtons should be permitted to intervene in this case,

including consideration of the Herringtons’ motion for leave to

file a reply (document no. 19) and US Cellular’s objection

thereto (document no. 20), will proceed in accordance with the

direction of the district judge. 

SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: March 7, 2006

cc: Steven E. Grill, Esq.

Paul T. Fitzgerald, Esq.

Jeffrey C. Spear, Esq.

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