                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 05a0001n.06
                            Filed: January 3, 2005


                                           No. 03-4172

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


AMBROSE MOSES, III,                              )
                                                 )
       Plaintiff-Appellant,                      )
                                                 )
v.                                               )   ON APPEAL FROM THE UNITED
                                                 )   STATES DISTRICT COURT FOR THE
STERLING COMMERCE (AMERICA),                     )   SOUTHERN DISTRICT OF OHIO
INC., et al.,                                    )
                                                 )
       Defendants-Appellees.                     )




       Before: MOORE and GIBBONS, Circuit Judges; EDMUNDS, District Judge.*
       JULIA SMITH GIBBONS, Circuit Judge. Plaintiff-appellant Ambrose Moses, III,

proceeding pro se, appeals from a judgment dismissing his complaint pursuant to Federal Rule of

Civil Procedure 37(b)(2). Moses filed a complaint against defendants-appellees Sterling Commerce,

Incorporated and five members of the company’s management. He alleged that he was terminated

because of his race and sex and because he engaged in protected conduct. The parties consented to

have a magistrate judge exercise jurisdiction over the action pursuant to 28 U.S.C. § 636(c). After

almost three years of discovery, the defendants filed a motion to dismiss the case with prejudice

based upon Moses’s failure to comply with discovery requests and court orders. The magistrate


       *
       The Honorable Nancy G. Edmunds, United States District Judge for the Eastern District of
Michigan, sitting by designation.
Moses v. Sterling Commerce (America), Inc., No. 03-4172

judge granted the defendants’ motion. Moses filed a timely appeal. For the following reasons, we

affirm the judgment of the lower court.

                                                   I.

       Moses, an attorney, began working at Sterling Commerce as a Contract Specialist within its

Department of Business Administration on December 29, 1996. The company fired him on

December 17, 1997, for purported poor performance. Subsequently, Moses filed suit against

Sterling Commerce and five of its management-level employees and officers. He alleged that

Sterling Commerce discriminated against him on the basis of race and sex and retaliated against him

“for seeking to protect [his] civil rights.” Further, he alleged violations of 42 U.S.C. §§ 1981 and

1985 and numerous Ohio state law provisions.

       The case was assigned to Judge Joseph Kinneary of the Southern District of Ohio. All

parties consented to full magistrate judge jurisdiction over further proceedings. Judge Kinneary

referred the case to Magistrate Judge Norah McCann King on April 10, 2000.

       Discovery began in this case in February 2000. Over the next three years, Moses failed to

adequately participate in the discovery process. He did not produce all the documents requested by

Sterling Commerce or respond completely to its interrogatories, and he never finished his

deposition.1



       1
        Moses appeared for his deposition, but answered only a few questions about his name and
address and then terminated the deposition. Sterling Commerce moved to compel Moses’s
deposition and asked for sanctions. Magistrate Judge King granted the defendants’ motion to
compel his deposition. However, she declined to impose sanctions on Moses, but noted that “the
Court will not hesitate to impose sanctions against plaintiff should he again fail to participate in the
discovery process.”

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       Sterling Commerce attempted to resolve these problems directly with Moses on at least five

separate occasions between March 2000 and January 2001. After these communications did not

produce the requested information, Sterling Commerce filed two motions to compel discovery.

Included in both motions was Sterling Commerce’s request for sanctions. On September 24, 2001,

Magistrate Judge King ordered Moses to produce certain documents and respond to certain

interrogatories within fifteen days. The court also granted Sterling Commerce’s request for

sanctions, because “[p]laintiff persists in attempting to transform the litigation process into a game.”

Moses failed to meet the deadline set by this order, telling Magistrate Judge King in a status

conference that he had not been able to comply with the order because he had been busy. Magistrate

Judge King ordered Moses to produce the requested discovery by the close of business the following

day. Thereafter, Moses submitted various documents to Sterling Commerce and responded to two

interrogatories. Sterling Commerce did not find these discovery responses to be sufficient. In

December 2001, it filed a motion to dismiss Moses’s complaint for failure to participate in

discovery and asked for sanctions. Magistrate Judge King denied this motion, because “[p]laintiff

is, apparently, producing some discovery to defendants and an extension of the expert disclosure and

dispositive motion filing dates will minimize the prejudice accruing to defendants by reason of

plaintiff’s recalcitrance.” However, Magistrate Judge King did warn Moses that “failure to strictly

comply with this order will result in the dismissal of the action.” By 2003, Moses still had not

provided all the discovery ordered by the court to be produced.

       While the discovery process was ongoing, Moses twice tried to have Sterling Commerce’s

attorneys disqualified or sanctioned. On the first occasion, Moses filed a motion to disqualify the



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attorneys on the ground that the joint representation of the individual and corporate defendants

constituted a conflict of interest. The court declined to disqualify the defendants’ attorneys, because

Moses had not identified any impropriety on the part of these attorneys. Later, Moses requested that

Magistrate Judge King refer Sterling Commerce’s attorneys for investigation and prosecution of a

formal disciplinary proceeding. He argued that the attorneys had violated ethical rules by jointly

representing the company and its management-level employees. Magistrate Judge King denied this

request and observed that the court previously had rejected this argument.

       Moses also tried to have the case removed from Magistrate Judge King’s docket. On January

22, 2002, Moses filed two motions, one requesting that the case be referred to a mediation

conference and the other asking for the case to be assigned to a district judge. Magistrate Judge

King denied these motions. On February 25, 2003, Moses filed a motion with the Chief Judge of

the Southern District of Ohio requesting that his case be assigned to a district judge. He argued that

the “lack of a district court judge denie[d him] the rights and protections guaranteed to him by the

United States Constitution . . . and is also inconsistent with the requirements of 28 U.S.C. § 636(c)”

and that he was not receiving “fair, just, and impartial treatment from the magistrate judge.” Chief

Judge Walter Herbert Rice, while noting that the case was before the magistrate judge by full

consent, nonetheless directed the clerk to assign the case to an Article III judge for “the sole and

express purpose of ruling on the Plaintiff’s Motion to withdraw the reference to the Magistrate

Judge.” The case was assigned to United States District Judge Edmund Sargus, Jr., who denied

Moses’s motion and returned the case to Magistrate Judge King. Judge Sargus ruled that there were

no “extraordinary circumstances” warranting that the case be removed from Magistrate Judge King’s



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docket. Rather, he found that Moses’s motion appeared to be “motivated by his dissatisfaction with

certain rulings, which has led him to make conclusory, unsubstantiated claims of ‘conspiracy’ on

the part of the Magistrate Judge and defense counsel.”

        After almost three years of receiving inadequate discovery responses, Sterling Commerce

moved to dismiss Moses’s suit with prejudice. On July 1, 2003, Magistrate Judge King granted

Sterling Commerce’s motion to dismiss the case, based upon Moses’s “continued refusal to fully

comply with this Court’s discovery orders,” the prejudice experienced by the defendants and the

“time, money and effort” expended by them, and her conclusion that “a lesser sanction would be

ineffectual under the circumstances of this case.”

                                                   II.

        On appeal, Moses raises a number of issues. He claims that Magistrate Judge King did not

have the jurisdiction or authority to preside over this case, especially given that there was no district

judge assigned to the case. He also asserts that Chief Judge Rice erred in assigning the case to Judge

Sargus to evaluate Moses’s motion to vacate the reference and that Judge Sargus erred in denying

the motion. Further, Moses argues that Magistrate Judge King abused her discretion in dismissing

the case with prejudice for discovery abuses and in refusing to disqualify defense attorneys or to

refer misconduct allegations against defense attorneys for investigation. All of these arguments are

without merit.

                                                   A.

        Moses asserts that Magistrate Judge King did not have the authority to conduct any

proceedings when there was no district judge assigned to the case, deny his motion requesting that



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an Article III district judge be assigned to him, or impose sanctions.

       The Federal Magistrates Act allows magistrate judges to preside over civil cases. It states

in pertinent part: “Upon consent of the parties, a full-time United States magistrate judge . . . may

conduct any or all proceedings in a jury or nonjury civil matter and order the entry of judgment in

the case, when specially designated to exercise such jurisdiction . . . .” 28 U.S.C. § 636(c)(1). This

court has considered and rejected challenges to this statute based on the argument that it does not

comport with Article III’s mandates. See Norris v. Schotten, 146 F.3d 314, 325 (6th Cir. 1998); Bell

& Beckwith v. IRS, 766 F.2d 910, 912 (6th Cir. 1985); K.M.C. Co. v. Irving Trust Co., 757 F.2d 752,

755 (6th Cir. 1985).

       In this case, it is undisputed that both Moses and Sterling Commerce consented to the

reference to a magistrate judge. Moses himself signed a form that stated, “All further proceedings

in this action, including trial and entry of a final judgment, may be conducted by a United States

Magistrate Judge.” Thus, having given his consent to a magistrate judge hearing his case, Moses

cannot now contest Magistrate Judge King’s authority to impose sanctions, rule on motions, or

render a final judgment. The plain language of § 636(c) allows the magistrate judge to “conduct any

or all proceedings in a jury or nonjury civil matter and order the entry of judgment.” (emphasis

added). A full referral to a magistrate judge allows the magistrate judge to oversee litigation in the

same manner as a district judge would. In fact, a “§ 636(c)(1) referral gives the magistrate judge

full authority over dispositive motions, conduct of trial, and entry of final judgment, all without

district court review.” Roell v. Withrow, 538 U.S. 580, 585 (2003). The “magistrate judge may

exercise plenary jurisdiction.” Vitols v. Citizens Banking Co., 984 F.2d 168, 169 (6th Cir. 1993).



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It was therefore appropriate for Magistrate Judge King to rule on Moses’s request to vacate the

reference, dismiss his action with prejudice, impose sanctions, and decline to disqualify the defense

attorneys. Moses’s arguments to the contrary are meritless.

        For these same reasons, it was not error that no district judge was assigned to this case after

the retirement of Judge Kinneary. By consenting to having his case heard by the magistrate judge,

Moses waived his constitutional right to an Article III judge. See Dixon v. Ylst, 990 F.2d 478, 479-

80 (9th Cir. 1993) (“A party to a federal civil case has, subject to some exceptions, a constitutional

right to proceed before an Article III judge. This right can be waived, allowing parties to consent

to trial before a magistrate judge.”) (citations omitted). Further, as we have observed, “[a]lthough

not a ‘district judge,’ a magistrate judge exercises the same jurisdiction as a district judge where

there is a designation pursuant to § 636(c).” Vitols, 984 F.2d at 169. Moses’s arguments that he was

denied constitutional protections and that Magistrate Judge King acted without authority when there

was not a district judge assigned to the case are simply incorrect.

        Moses also suggests that his consent to the referral was not freely given “because it was

heavily influenced and driven by his need for avoiding the endurance of an unreasonable delay with

Senior Judge Kinneary.” Moses never argued in the lower court that his consent to magistrate judge

jurisdiction was not freely given.      Thus, Moses has waived his opportunity to contest the

voluntariness of his consent, because this court, “subject to limited exceptions, . . . will not consider

issues not presented to the district court but raised for the first time on appeal.” Preferred RX, Inc.

v. Am. Prescription Plan, Inc., 46 F.3d 535, 549 (6th Cir. 1995).

        Even if Moses had not waived his right to present this argument, his contention that his



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consent was not freely given is not credible. Waiver of a right to have a case heard by an Article

III judge must be evidenced by “voluntary, knowing, and intelligent action.” Norris, 146 F.3d at

326. Moses took this action when he signed the consent form, which clearly stated that all

proceedings would be conducted by a magistrate judge. Further, Moses is a licensed attorney, who

likely knew the consequences of signing that document. The fact that Moses believed he could get

relief faster under a magistrate judge than with Judge Kinneary does not mean that his consent was

given involuntarily. “Access to district judges in the current judicial system is not so restricted that

adjudication of cases by magistrates is a compelled alternative.” Pacemaker Diagnostic Clinic of

Am., Inc. v. Instromedix, Inc., 725 F.2d 537, 543 (9th Cir. 1984). Moses points to nothing in the

record nor does the record reveal any other facts to support his contention that his consent to the

magistrate judge referral was anything but freely given.

                                                  B.

       Next, Moses argues that Chief Judge Rice erred in assigning his motion to vacate the

reference to another district judge for the limited purpose of ruling on that motion. This contention

is unavailing. As previously discussed, Moses and Sterling Commerce consented to a full referral

to a magistrate judge under § 636(c). At that point, the magistrate judge assumed the duties of the

district judge and had the authority to rule on “any or all proceedings.” 28 U.S.C. § 636(c)(1). The

district court thereafter could only entertain motions to vacate the reference to the magistrate judge.

See id. § 636(c)(4) (“The court may, for good cause shown on its own motion, or under

extraordinary circumstances shown by any party, vacate a reference of a civil matter to a magistrate

judge under this subsection.”); Manion v. Am. Airlines, Inc., 251 F. Supp. 2d 171, 175 (D.D.C. 2003)


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(noting that “the District Court’s ‘supervisory authority’ over actions referred for all purposes to a

Magistrate Judge is limited to consideration of motions to vacate the referral”).

       Further, Judge Sargus, in ruling on this motion, did not err in denying it. A motion to vacate

the reference to a magistrate judge should only be granted upon motion of a party if that party shows

“extraordinary circumstances.” 28 U.S.C. § 636(c)(4). Moses failed to demonstrate extraordinary

circumstances. Instead, he attacked the integrity of the proceedings, the authority of the magistrate

judge, and stated that the “magistrate judge has shown a prejudice and bias against Moses.” These

conclusory allegations demonstrate a distaste for how his case was being resolved by the magistrate

judge. A motion to vacate the reference cannot stand on these grounds. See Milhous v. Metro. Gov’t

of Nashville & Davidson County, No. 99-5685, 2000 WL 876396, at *1 (6th Cir. June 21, 2000) (“It

is equally clear that no ‘extraordinary circumstances’ were shown here but, rather, the plaintiff

simply was displeased with the magistrate’s rulings on the motions to dismiss.”).

                                                 C.

       Moses also contests Magistrate Judge King’s dismissal of his case. This court reviews the

dismissal of an action for failure to cooperate in discovery for an abuse of discretion. See Nat’l

Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 642 (1976); Harmon v. CSX Transp.,

Inc., 110 F.3d 364, 366 (6th Cir. 1997).

       Federal Rule of Civil Procedure 37(b)(2) authorizes a court to dismiss a case when a party

has failed to obey an order regarding discovery. This court considers four factors when reviewing

the dismissal of a complaint: (1) whether the party’s failure to cooperate in discovery is due to

willfulness, bad faith, or fault; (2) whether the adversary was prejudiced by the dismissed party’s



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failure to cooperate in discovery; (3) whether the dismissed party was warned that failure to

cooperate could lead to dismissal; and (4) whether less drastic sanctions were imposed or considered

before dismissal was ordered. Harmon, 110 F.3d at 366-67.

       The record clearly reflects that Moses’s failure to cooperate in discovery was willful. Moses

never completed his deposition, although he was ordered to do so by the court. Moses also failed

to produce certain documents and answer certain interrogatories despite being ordered to do so

several times by Magistrate Judge King. In fact, by 2003, Moses still had not complied with orders

issued by the court in September 2001 and September 2002. Moses’s refusal to be deposed and his

consistent failure to comply with court orders and defense requests to produce discovery materials

support the conclusion that his conduct was willful and in bad faith. There was no valid reason for

him not to provide the information requested after being ordered to do so by the court.

       The second Harmon factor is whether the adversary was prejudiced by the party’s failure to

participate in discovery. Moses’s actions likely cost Sterling Commerce both time and money; the

defendants had to file two motions to compel and two motions to dismiss based upon Moses’s failure

to cooperate. Defense attorneys also sent numerous letters trying to obtain this information.

Further, Moses failed to respond to discovery requests for almost three years, unnecessarily delaying

resolution of the case. As noted by the Harmon court in upholding dismissal of a case based on a

failure to cooperate in discovery, “Not only had [the company] been unable to secure the

information requested, but it was also required to waste time, money, and effort in pursuit of

cooperation which [the adversary] was legally obligated to provide.” Harmon, 110 F.3d at 368.

Similarly, Moses’s failure to participate in discovery prejudiced Sterling Commerce because, not



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only did it never receive the requested discovery, it also had to expend considerable effort in trying

to secure his cooperation.

        The third Harmon factor is whether the party was warned that failure to cooperate could lead

to dismissal. In a September 2002 order, Magistrate Judge King specifically stated that “plaintiff

is put on notice that his failure to strictly comply with this order will result in the dismissal of the

action.” Thus, this factor is satisfied.

        The final Harmon factor is whether less drastic sanctions were imposed or considered.

Magistrate Judge King did in fact impose less drastic sanctions in previous orders. First, in 2000,

she warned Moses that “any future misconduct will be sanctioned.” Next, in 2001, Magistrate Judge

King granted defendants’ motions for sanctions. In 2002, she warned Moses that his failure to

cooperate would result in dismissal of his case. At that time, she denied defendants’ motion to

dismiss the case for failure to cooperate in discovery. Thus, Magistrate Judge King imposed

warnings and monetary sanctions, none of which compelled Moses to participate in discovery,

before dismissing his action.

        The Harmon factors weighed strongly in favor of dismissing Moses’s case pursuant to Rule

37(b)(2). Given Moses’s willful failure to cooperate over a three-year period, Magistrate Judge

King did not abuse her discretion in dismissing his case.

                                                  D.

        Finally, Moses claims that Magistrate Judge King’s failure to disqualify the defense

attorneys or refer allegations of misconduct for investigation was error. A district court’s refusal

to disqualify defense counsel is reviewed for an abuse of discretion. See Petrovic v. Amoco Oil Co.,



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Moses v. Sterling Commerce (America), Inc., No. 03-4172

200 F.3d 1140, 1154 (8th Cir. 1999); In re Dresser Indus., Inc., 972 F.2d 540, 546 (5th Cir. 1992).

Courts must be vigilant in reviewing motions to disqualify counsel as “the ability to deny one’s

opponent the services of capable counsel[ ] is a potent weapon,” Manning v. Waring, Cox, James,

Sklar & Allen, 849 F.2d 222, 224 (6th Cir. 1988), that can be “misused as a technique of

harassment.” Kitchen v. Aristech Chem., 769 F. Supp. 254, 257 (S.D. Ohio 1991) (citations

omitted).

       Magistrate Judge King did not abuse her discretion in denying Moses’s motion to disqualify

defense attorneys or in refusing to follow his suggestion that the defense attorneys be referred for

investigation. A court should only disqualify an attorney “when there is ‘a reasonable possibility

that some specifically identifiable impropriety’ actually occurred.” Id. (quoting United States v.

Kitchin, 592 F.2d 900, 903 (5th Cir. 1979)). Magistrate Judge King correctly observed that Moses

“has neither alleged nor established any impropriety on the part of defense counsel that would

warrant disqualification.” The record confirms that Moses’s assertions of impropriety on the part

of defense attorneys were frivolous, and thus Magistrate Judge King did not abuse her discretion in

refusing to disqualify Sterling Commerce’s attorneys or refer them to disciplinary proceedings.



                                                III.

       For the foregoing reasons, we affirm the judgment of the lower court.




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