All Parties Must Consent to a Magistrate

Posted on April 2nd, 2012 by Mark Stopa

In my experience as a litigator, I’ve noticed on many occasions that judges hate to get involved in discovery disputes.  Often, if the disputes are hotly-contested, complicated, or tedious, judges want to punt the issue to a magistrate, as doing so prevents the judge from having to rule on such issues.

Florida Rule of Civil Procedure 1.490(c) is clear.  “No reference shall be to a magistrate, either general or special, without the consent of the parties.”

Earlier today, I had a hearing where the judge was frustrated with the magnitude of the parties’ disagreements regarding discovery.  Rather than hearing motions for sanctions and to compel, he ordered the parties to a magistrate.  I objected, both verbally and in writing, but the judge entered the Order anyway.

Respectfully, the law on this issue is clear, and Florida’s appellate courts will not hesitate to grant certiorari or mandamus where a court refers the parties to a magistrate without their consent.  See Urbanek v. Hopkins, 65 So. 3d 645 (Fla. 4th DCA 2011); Rosenberg v. Morales, 804 So. 2d 622 (Fla. 3d DCA 2002); Hulett Enviro. Svcs., Inc. v. Advantage Pest Related Svcs., Inc., 778 So. 2d 478 (Fla. 4th DCA 2001); Pesut v. Miller, 773 So. 2d 1185 (Fla. 2d DCA 2000).  As a result, I just drafted this Petition for Writ of Certiorari or Mandamus.

The petition is not in a foreclosure case, but the law works just the same way.  If a court directs a party to a magistrate, and he/she does not consent, then that ruling is error, and the appellate court will/should quash such an Order.  Frankly, I’d be very surprised to not procure such a ruling in this instance.

Mark Stopa

www.stayinmyhome.com

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