                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 14-2135


ESTATE OF WAYNE A. JONES BY ROBERT L. JONES AND BRUCE A.
JONES, Administrators of the Estate of Wayne A. Jones,

                 Plaintiff - Appellant,

           v.

CITY OF MARTINSBURG, WEST VIRGINIA; PFC. ERIK HERB; PFC.
DANIEL NORTH; PTLM. WILLIAM STAUBS; PTLM. PAUL LEHMAN; PFC.
ERIC NEELY,

                 Defendants – Appellees,

           and

MARTINSBURG POLICE DEPARTMENT; DOES 1 TO 25,

                 Defendants.



Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. Gina M. Croh, Chief
District Judge. (3:13-cv-00068-GMG-JES)


Argued:   March 22, 2016                     Decided:   July 6, 2016


Before GREGORY and DUNCAN, Circuit Judges, and Richard L.
VOORHEES, United States District Judge for the Western District
of North Carolina, sitting by designation.


Remanded by unpublished order. Judge Gregory directed entry of
the order with the concurrence of Judge Duncan. Judge Voorhees
wrote a dissent from the order of remand.
ARGUED: Christopher Edwin Brown, BROWN FIRM, PLLC, Alexandria,
Virginia, for Appellant.     Philip W. Savrin, FREEMAN MATHIS
& GARY, LLP, Atlanta, Georgia, for Appellees.        ON BRIEF:
Rocco J. DeLeonardis, CONSUMER LAW, PLLC, Reston, Virginia, for
Appellant.




                                     ORDER


GREGORY, Circuit Judge:

      In the unique circumstances presented, because the facts

admitted as a result of the requests for admission, which formed

the   basis    of   the   underlying       motion    to   deem   requests   for

admissions admitted, constructively resolved all of the material

issues in dispute, giving the motion a dispositive effect, and

because this Court is unable to determine the extent of the

district court’s reliance on the admissions, this Court remands

the   matter   to   the   district    court    for    consideration    of   the

discretionary factors in Rule 36(b) in determining whether to

allow the withdrawal of the admissions.               This order in no way

opines on the merits of such consideration.

                                                                      REMANDED




                                       2
VOORHEES, District Judge, dissenting:

      I respectfully dissent from the order entered in this case.

My disagreement with the majority’s action extends to the form,

as recognized by the substantial variance in length between the

majority’s order and my dissent, as well as the substance of the

disposition reached in this case.

      In late December of 2013, the City of Martinsburg and the

related   individual      defendants       (collectively,       the    City)   served

requests for admission (RFAs) upon the Estate.                      On the day the

responses were due, the City filed a “Motion to Deem Requests

for Admissions to Plaintiffs Admitted.”                     J.A. 48.      This motion

was referred to the magistrate judge who ultimately denied the

motion because it was premature.                J.A. 99.     During oral argument

before the magistrate judge, counsel for the City explicitly

mentioned     that   “[i]f     a   party       wants   to    have   his     admissions

withdrawn, then he should file a motion under [Federal Rule of

Civil Procedure] 36(b).”           J.A. 86:21-23.           The plain language of

Rule 36(b) states that “[a] matter admitted under this rule is

conclusively established unless the court, on motion, permits

the admission to be withdrawn or amended.”                     On appeal, neither

party seriously contests the fact that the plain meaning of Rule

36   posits   that   it   is   self-executing:         “A    matter    is   admitted,

unless, within 30 days after being served, the party to whom the



                                           3
request is directed serves on the requesting party a written

answer.”       Fed. R. Civ. P. 36(a)(3).

       Nevertheless,     the    City     filed      a   “Second     Motion    to     Deem

Requests for Admissions to Plaintiffs Admitted.”                       J.A. 100.      The

Estate responded by asserting incorrect arguments regarding the

time period it had to respond to the requests.                    J.A. 122-23.

       However, the Estate also argued that “there is sufficient

evidence to contradict any purported admissions” and that it

would not serve the purpose of Rule 36 to deem the RFAs admitted

because the Estate could dispute the facts contained therein.

J.A. 124.        The Estate also attached its responses to the RFAs.

J.A. 128-131.       At no point, however, did the Estate mention Rule

36(b) or the word “withdraw” until it filed its appeal with this

court.

       The Estate asked this panel to cobble together these two

filings    and    construe     them   as   the      functional    equivalent         of   a

motion under Rule 36(b).               Prior unpublished decisions of this

court have not strictly interpreted the motion requirement under

Rule   36(b)     and   have    allowed     late     responses     or    a   motion    for

extension of time to serve as the functional equivalent of a

motion under Rule 36(b).              Bailey v. Christian Broad. Network,

No. 11-2348, 483 F. App'x 808, 810 (4th Cir. June 15, 2012)

(filing    a    motion   for   extension       of    time   “was,      in   essence,      a

motion to withdraw deemed admissions”); Metpath, Inc. v. Modern

                                           4
Med., No. 90-2234, 934 F.2d 319, 1991 WL 87534, at *2 (4th Cir.

May 29, 1991) (per curiam) (late response).                   These decisions are

based in part upon the reasoning by the Supreme Court that “if a

litigant    files    papers    in    a    fashion      that   is    technically      at

variance   with     the   letter    of    a    procedural     rule,   a    court    may

nonetheless find that the litigant has complied with the rule if

the litigant’s action is the functional equivalent of what the

rule requires.”       Torres v. Oakland Scavenger Co., 487 U.S. 312,

316-17 (1988).      Rule 36(b) is the pertinent rule and states that

the required motion or “functional equivalent” thereof should

contain a discussion of whether withdrawal “would promote the

presentation of the merits” or prejudice the opposing party.

Fed. R. Civ. P. 36(b).         Under Torres and the prior unpublished

decisions of this court, it is appropriate to treat the related

filings    responding     to   the       second      motion   to    deem   the     RFAs

admitted as the functional equivalent of a motion to withdraw

under Rule 36(b).

     The magistrate judge in the underlying case considered the

second motion filed by the City, the Estate’s response to the

motion, and the attached response to the RFAs.                        J.A. 161-64.

The magistrate judge granted the underlying motion in an order

without    explicitly     considering          the   Rule   36(b)   factors.        Id.

However,    as    explained    infra,         the    result   of    the    magistrate



                                           5
judge’s actions was to deny implicitly any constructive motion

to withdraw.

       At no point in this litigation did the Estate object to the

form or substance of the magistrate judge’s disposition of the

motion.       Ultimately, the City moved for and received summary

judgment.      Specifically, the district court found that “[m]any

material facts in this case are undisputed because a magistrate

court order deemed admitted requests for admission” and “the

evidence      in   the    record      independently     supports       the     facts

admitted.”     J.A. 552.

       The Estate timely appealed the grant of summary judgment.

In the “Issues Presented for Review” it stated that this panel

should consider (1) whether the district judge, as opposed to

the magistrate judge, erred in granting the second motion to

deem   RFAs    admitted     without     consideration    of    the     Rule    36(b)

factors; and (2) whether the district court properly granted

summary judgment based on the deemed admissions.                      (Appellant’s

Initial Br., at 1).         Later in the brief, the Estate argued that

the    magistrate        judge’s   failure      to    consider        Rule     36(b)

constituted an abuse of discretion.             (Id. at 21-22, 25).            Much,

if not all, of the discussion contained in the initial brief

argued     that    the   actions   of     the   district      court    judge     and

magistrate judge were functionally indistinguishable.



                                         6
      On   appeal,   the   City   argued   that   the   Estate   failed   to

preserve the Rule 36(b) issue for appellate review by failing to

object to the magistrate judge’s order.           Only in its reply did

the Estate argue that the magistrate judge was required to issue

a report and recommendation (R&R) and that the ruling “on these

clearly dispositive matters without providing a [R&R] should be

subject to review by this Court.”           (Appellant’s Reply Br., at

3).

      On March 22, 2016, this court heard oral arguments from

counsel.     Around six weeks later, on May 4, 2016, the panel

ordered supplemental briefing on the following:

            (1) Whether, under 28 U.S.C. § 636, the
               City of Martinsburg’s “second motion to
               deem requests for admissions to plaintiffs
               admitted”   should   be   characterized as
               dispositive     or    non-dispositive   of
               plaintiffs’ claims?;

            (2) Whether, under 28 U.S.C. § 636, the
               magistrate judge had authority to “hear
               and determine” the City of Martinsburg’s
               motion?; and

            (3) Whether there is an exception to the
               general rule of waiver when a magistrate
               judge issues an order beyond his statutory
               authority in 28 U.S.C. § 636?

            A.    The First Level of Waiver
      Today the panel has remanded by way of an order because the

magistrate judge’s order and the motion itself were “dispositive

in effect.”      To reach this issue, the panel necessarily had to



                                     7
find   that     it    was    appropriate        to    consider        the       Estate’s     newly

advanced argument in its reply.                     However, “it is a well settled

rule that contentions not raised in the argument section of the

opening brief are abandoned.”                A Helping Hand, LLC v. Baltimore

County, MD, 515 F.3d 356, 369 (4th Cir. 2008) (quoting United

States v. Al-Hamdi, 356 F.3d 564, 571 n.8 (4th Cir. 2004)).

“[I]n rare circumstances, appellate courts, in their discretion,

may overlook this rule and others like it if they determine that

a   ‘miscarriage        of    justice’       would        otherwise          result.”         Id.

Perhaps    the       majority      found     that         the    supplemental          briefing

ordered obviated any prejudice to the City.                               See Brown v. Nucor

Corp., 785 F.3d 895, 921 (4th Cir. 2015) (stating the purpose of

this    doctrine       “is    to     avoid      unfairness           to    an     appellee    and

minimize      the    ‘risk    of     an   improvident           or    ill-advised       opinion

being issued on an unbriefed issue.’”) (quoting United States v.

Leeson, 453 F.3d 631, 638 n.4 (4th Cir. 2006)).                                   Nevertheless,

as explained below, this is but one instance of the Estate’s

failure    to       fully    present      its       arguments        to     the    appropriate

judicial body.         Accordingly, I would find that this is not the

rare exception to this rule of waiver.

              B.      The Second Level of Waiver

       Assuming      the     panel     found        the    requisite         miscarriage       of

justice, it would still have to determine that a second and

separate rule of waiver is inapplicable to remand this matter to

                                                8
the district court.           As early as 1997, this court has stated,

“[o]ur cases are replete with warnings that the consequences of

failing to file objections is waiver of the right to appeal.”

Wells v. Shriners Hosp., 109 F.3d 198, 199 (4th Cir. 1997).                            The

text of Federal Rule of Civil Procedure 72 warns parties of the

failure to object.          Regarding nondispositive matters, “[a] party

may    not    assign   as    error   a   defect       in      the   order     not   timely

objected      to.”     Fed.    R.    Civ.       72(a).        Regarding       dispositive

matters, to which the magistrate judge must file a R&R, the

aggrieved party must file objections within fourteen days and

“[t]he district judge must determine de novo any part of the

magistrate judge’s disposition that has been properly objected

to.”     Fed. R. Civ. P. 72(b)(2)-(3) (emphasis added).                       This court

has    extended      the    waiver   rule       to   both     dispositive       and   non-

dispositive matters.           Solis v. Malkani, 638 F.3d 269, 274 (4th

Cir. 2011) (Gregory, J.).

       The order entered by the majority appears to indicate that

it considered the order entered by the magistrate judge to be

dispositive and, for that reason, remand was warranted.                               There

are     two   types    of    referrals      under        28    U.S.C.     §   636(b)(1).

Specifically, under § 636(b)(1)(A) a magistrate judge may “hear

and determine” any pending pretrial matter and issue an order,

so long as the matter does not involve a set of listed motions.

Under    §    636(b)(1)(B),      a   magistrate          judge      may   consider     the

                                            9
motions listed in § 636(b)(1)(A) but has to issue a R&R instead

of an order.

         Several unpublished decisions of this court have indicated

that a motion that is the functional equivalent of a listed

motion under § 636(b)(1)(A) is deemed dispositive and that a

district court should apply a de novo standard of review instead

of   a    clearly    erroneous   standard    of    review      to   timely    filed

objections.         See, e.g., Reddick v. White, No. 08-2286, 456 F.

App'x 191, 193-94 (4th Cir. Dec. 1, 2011); see also Gomez v.

United States, 490 U.S. 858, 868 (1989) (classifying the listed

motions as “dispositive”).            Federal Rule of Civil Procedure 72,

a corollary to § 636, makes the distinction between (A) and (B)

referrals     by     reference   to    whether     a    particular      matter   is

dispositive or nondispositive.           Fed. R. Civ. P. 72.

         To the knowledge of the undersigned, no case in this court

has addressed directly the situation posed in this appeal: what

happens when a magistrate judge enters an order on a matter that

is   deemed    functionally      dispositive      and   said    order    is   never

objected to?        Should the court refuse to apply the general rule

of waiver because the magistrate judge was supposed to enter a

R&R?

         The Solis case is actually instructive on this point.                   In

Solis, the district court judge referred a request for fees to

the magistrate judge without specifying whether the magistrate

                                        10
judge should issue a R&R or an order.                   638 F.3d at 272.          The

magistrate      judge   ultimately        issued      findings   on   a   document

entitled “order of the Court.”                  Id.    In Solis, neither party

objected to the magistrate judge’s order within the required

period.   Id.     Instead, the aggrieved litigant appealed directly

to the Fourth Circuit.          The Fourth Circuit dismissed this first

appeal for lack of jurisdiction. 1              On remand, the district court

judge held that § 636(b)(1)’s list of motions was not exhaustive

and   instead    extended      to   all    dispositive     motions.        Chao    v.

Malkani, mem. op., No. 8:00-cv-03491, at *4 (D. Md. Feb. 25,

2009).    It     then   held    that      the    motion   requesting      fees    was


      1The panel reasoned that “[i]t is unclear from the record
whether the district court’s referral to the magistrate judge
was pursuant to § 636(c) or § 636(b).” Chao v. Malkani, No. 07-
1828, at *2 (4th Cir. June 5, 2008) (unpublished order). Given
the ambiguity, the court found that it was without jurisdiction
because a party may not directly appeal a R&R or a magistrate
judge’s order because of the application of the final judgment
rule.   See id. (such an order “cannot be directly appealed to
this Court”) (citing Reynaga v. Cammissa, 972 F.2d 414, 416-18
(9th Cir. 1992) (discussing the final judgment rule and deciding
to issue a writ of mandamus to avoid determining whether
appellate jurisdiction existed)).    If the magistrate judge’s
order was under § 636(c), consent was not evident from the
record. Id. Given the uncertainty of whether a final judgment
was present, the panel remanded the matter to the district court
and did “not address the issue of whether appellants have waived
their right to appeal, as that is not before us at this time.”
Id.     Here, it is abundantly clear that the court has
jurisdiction over the final judgment entered by the district
court in its grant of summary judgment.     Moreover, the waiver
issue is directly before this court.




                                          11
dispositive         under   §   636.        The    district      court   judge       then

considered whether the parties waived the right to object to the

magistrate        judge’s   filing      denominated       as   an    “order.”        The

district court judge stated that the only way the magistrate

judge could have heard the motion was under § 636(b)(1)(B).                          Id.

at   7. 2        Accordingly,   the     district     court     recharacterized       the

“order” as a R&R and determined that the parties waived the

right to appeal the matter to him.                  Id.      Finally, the district

judge “adopted the report without further review.”                        Id. at 8.

On appeal, the Solis panel decided de novo whether the aggrieved

party       “waived   its   rights     to   challenge      the      findings    of   the

magistrate judge by failing to file objections with the district

court.”       638 F.3d at 273.         The court held that it was immaterial

that the magistrate judge entered an order as opposed to a R&R:

“Counsel should have known that their failure to act waived the

right       of     their    clients      to       district      court    review       of

recommendations, and that, thereafter, the court would be free

to adopt the recommendations wholesale.”                   Id. at 274.         There is

no reason not to apply Solis to the instant case.                              Assuming



      2The district court judge also held that the defendants
knew of the distinction because they objected to the referral of
the    matter     to    the     magistrate     judge    on    the
dispositive/nondispositive distinction.     Chao, mem. op., No.
8:00-cv-03491, at *7.    However, the panel did not cite this
evidence as a basis for upholding the district court’s decision.



                                            12
arguendo that the matters decided by the magistrate judge can be

declared dispositive as stated by the majority, a clear line of

precedent from this court indicates that filing objections is

imperative      to    preserving        review       even       at     the    district    court

level.    Moreover, Solis posits that waiver applies no matter how

the magistrate judge denominates his order.

       Perhaps       Solis    and     the    general           rule    of    waiver    can    be

distinguished in the instant case, but that task has not been

undertaken       by     the        majority.        The        arguments      distinguishing

application      of    this        second    level        of    waiver       were   themselves

waived    by     failing       to    include        them        in    the    initial     brief.

Assuming the majority has declined to apply the first level of

waiver,   it     could       perhaps       have     considered          distinguishing       the

second level of waiver discussed above.                              In Thomas v. Arn, the

Supreme Court expressly approved of the use of waiver when a

party fails to object to a magistrate judge’s R&R.                                    474 U.S.

140,   146-47     (1985).           This    rule     derives          from    the   courts    of

appeals’ supervisory powers and serves (1) to focus the district

court judge’s attention on disputed matters; and (2) to promote

judicial economy.            Id.    Without the rule of waiver, an aggrieved

litigant could sandbag the district court judge by raising its

objections on appeal.               Id. at 147-48.             As a consequence, either

district court judges would have to consider carefully every

single unobjected-to matter before their magistrate judges to

                                               13
ensure that no error is present or appellate panels would have

to perform this duty.               Id. at 148.              This court has suggested

that an opportunistic litigant might even attempt to “bypass the

district court entirely, even though Congress had lodged the

primary responsibility for supervision of federal magistrates’

functions with that judicial body.”                      United States v. Schronce,

727 F.2d 91, 94 (4th Cir. 1984).

       The   Supreme       Court    held    that    this         enormous    waste    of    the

parties’ and the judicial system’s resources can properly be

avoided by utilizing the appellate courts’ supervisory powers.

Arn, 106 U.S. at 47.              However, the Supreme Court cautioned that

these supervisory powers could not be applied if they “conflict

with constitutional or statutory provisions.”                           Id. at 148.         The

Ninth     Circuit        holds     that    waiver        is      inappropriate       when    a

magistrate      judge      issues    an    order    on       a   dispositive    motion      as

opposed to a R&R because it implicates structural principles of

Article III.          Bastidas v. Chappell, 791 F.3d 1155, 1159 (9th

Cir.    2015)      (“The    line    Congress       drew       between    dispositive        and

nondispositive        motions       was     not     a        result     of   happenstance.

Rather, it reflects the very real concern that, at least absent

consent, delegating the final disposition of cases to magistrate

judges    would      run    afoul    of    the     Constitution.”).             The    Ninth

Circuit      did   not     rest    its    holding       on    Article    III   but    rather

determined that the Magistrates Act amounted to a “statutory

                                             14
provision that embodies a strong policy concerning the proper

administration of judicial business.”                           Bastidas, 791 F.3d at

1160 (quoting Nguyen v. United States, 539 U.S. 69, 78 (2003)).

Following Nguyen, the Ninth Circuit stated that “the importance

of   policing       the   proper      designation          of    judicial        officers     in

Article III courts convinces us that review is warranted despite

[the] failure to object.”               Id. at 1160.            If the majority’s order

implies      that    this     rule     applies     here,         it     should       make    that

determination        explicit     in    order     to       avoid      the    time     consuming

process that occurred in the instant case.

       Moreover,      this      court    should     carefully            examine       Bastidas

before       adopting     its     reasoning.               I    will     not       attempt     to

exhaustively        examine     the     Bastidas       opinion,         but    I     will    pose

several issues that deserve further examination before it is

applied in this court.

         First, Nguyen concerned the improper assignment of a non-

Article III judge to a panel in clear violation of 28 U.S.C. §

292.     539 U.S. at 79-80.               The violation of § 636 is not so

clear.       It relies upon a construction of § 636 that is more

restrictive of the magistrate judge’s powers than supplied in

the text Congress enacted.               In this case, the motion ruled upon

by     the   magistrate       judge     is   not       a       listed       motion    under     §

636(b)(1)(A).



                                             15
       Secondly, the majority’s order states that the magistrate

judge’s order itself was dispositive of the matter, but, the

question       then    arises,     when     was        it       dispositive?           How       is   a

district       court    judge     or    magistrate              judge     to     determine       when

particular discovery matters are dispositive of a claim?                                          The

answer to this question would seem to not be after an appellate

panel returns these matters for further review.

       Third, Nguyen concerned entry of a final ruling in a case

by an improperly formed panel.                     However, here the magistrate

judge’s    order        never     amounted        to        a    final      ruling     that       was

appealable to this court.               Rather, the final order on appeal is

the    grant    of     summary     judgment.            This         is    not    a   distinction

without merit.          The magistrate judge never purported to be the

final arbiter of the viability of the claims advanced by the

Estate and the district court always retained its supervisory

role to hear any objections.                 Congress provided a mechanism for

ensuring that aggrieved litigants receive Article III review of

a     magistrate        judge’s        disposition              of    particular            matters.

Congress envisioned a system where the district court judge is

the    primary        supervisor       of   the    magistrate              judge      and    §    636

supplies       dissatisfied       parties     an       avenue         to    ensure      that      the

desired amount of supervision is available.                                See    Schronce, 727

F.2d at 94.           Any inclination here to adopt the Ninth Circuit’s

position       without     seriously        examining            Congress’        other      strong

                                             16
policy     favoring     district    court       review     of    magistrate    judge

matters is inappropriate.

            C.   There is Not a Putative Rule 36(b) Motion Pending
            Before the District Court

       Finally,   the      majority’s    order    appears       to   aver   that   the

district court judge failed to rule upon an otherwise ripe Rule

36(b) motion.         However, as stated above, the magistrate judge

considered the entirety of the filings before him, including (1)

the Estate’s response to the motion to deem the RFAs admitted,

and (2) its response to the RFAs.               The essence of the majority’s

ruling implies comfort with conjuring an implicit motion but

discomfort with allowing an implicit denial.

       When the magistrate judge entered the order deeming the

RFAs     admitted,    he    implicitly        denied     any    implied     purported

pending     motions     attending       the    Estate’s        response.      Ruling

otherwise would require a district court judge to comb through

the materials presented to a magistrate judge to determine if

some implicit matter was raised but not directly addressed in

the magistrate judge’s order or R&R.                     Our adversarial system

stands as a check on such an effect.                       Moreover, a contrary

holding would run afoul of the Magistrates Act’s purposes as

articulated by this court in numerous decisions as well as by

the Supreme Court in Arn.




                                         17
       Unpublished          precedent       indicates          that    putative,         un-ruled

upon motions do not exist in this type of situation.                                    By way of

example, in Bailey, the magistrate judge was presented with a

request for extension of time to answer requests for admission.

483   F.     App’x    808,    809-10.         The    magistrate          judge     erroneously

believed that he was constrained by Rule 36(a) and did not treat

the motion for extension of time as the functional equivalent of

a motion under Rule 36(b).                    Id. at 810.               Critically, Bailey

objected to this motion.                    Id.      The district court summarily

denied the objection.                Id.      Nowhere in the opinion does the

Bailey       panel    intimate       that    the     motion      remained         pending    even

after appeal.           See id.        Rather, the panel concluded that the

district       court        itself     erred        by        summarily      rejecting        the

objections to the magistrate judge’s disposition.                                 Id.      If the

motion remained pending, the Bailey panel would not have needed

to    hold    that    the    district       court     judge       erred      and    would    have

instead, like the majority in this case, remanded the matter to

the district court judge.

       Moreover, the rule that a judge necessarily and implicitly

denies     all    relief      requested       when       he    disposes      of    the    matters

presented        to   him    without    granting          said    relief      is    applied    to

other judicial officers.               See Poindexter v. Mercedes-Benz Credit

Corp., 792 F.3d 406, 411 (4th Cir. 2015) (affirming the district

court’s       “implicit      denial     of”       litigant’s          Rule   56(d)       motion);

                                              18
Varghese v. Honeywell Intern., Inc., 424 F.3d 411, 415 n.6 (4th

Cir. 2005) (district court’s rulings “stand[] as an implicit

rejection     of       [litigant’s]     summary     judgment       argument”);       United

States v. Benenhaley, No. 06-6117, 240 F. App’x 581, 582 & n.*

(4th   Cir.      July    10,    2007)    (“affirm[ing]       the       district     court’s

implicit denial” of a claim it admittedly did not address: “[b]y

omitting      this      claim    from     its     opinion,       the     district    court

implicitly rejected it.”); Marcellin v. Kupferer, No. 02-2157,

60 F. App'x 513, 514 (4th Cir. Apr. 15, 2003) (“We conclude the

district      court’s       summary      judgment        order     implicitly        denied

Marcellin’s request to have its requests for admissions deemed

admitted      under      Rule    36(a).”).        The     majority’s       order     is   an

example of this doctrine applied in the appellate context.                                By

not    addressing        the    arguments       advanced    by     the    City,     it    has

rejected them, albeit without providing sustaining rationale.

       Finally, the Estate’s response to the City’s motion for

summary judgment cannot be considered the functional equivalent

of a motion under Rule 36(b).                    Attempting to dispute admitted

facts at summary judgment cannot be considered the functional

equivalent       of     a   motion      under     Rule     36(b)       without     entirely

eviscerating the motion requirement.                      Moreover, such a ruling

would necessarily excise a portion of Rule 56 itself.                             See Fed.

R. Civ. P. 56(c)(1)(A) (indicating that a party can show an

absence     of     a     dispute     regarding      factual       matters     by    citing

                                            19
admissions).       Unpublished precedent from this court supports the

proposition that a party’s attempt to dispute admitted facts at

summary judgment does not constitute the functional equivalent

of a motion under Rule 36(b).          Adventis, Inc. v. Consol. Prop.

Holdings, Inc., Nos. 04-1405, 05-1411, 124 F. App'x 169, 173

(4th Cir. Mar. 2, 2005) (“Rule 36 admissions are conclusive for

purposes of the litigation and are sufficient to support summary

judgment.”) (quoting Langer v. Monarch Life Ins. Co., 966 F.2d

786, 803 (3d Cir. 1992)); Foxworth v. World Book Encyclopedia,

Inc., No. 87-2128, 838 F.2d 466, 1988 WL 6814, at *1 (4th Cir.

Jan. 27, 1988) (failing to give pro se litigant Roseboro notice

prior to entering summary judgment for defendant was harmless

error    because    the   litigant   had   failed   to    timely   respond   to

RFAs).    Published and persuasive precedent from other Circuits

hold likewise.       Koszola v. Bd. of Educ. of City of Chicago, 385

F.3d 1104, 1109 (7th Cir. 2004); Karras v. Karras, 16 F.3d 245,

247 (8th Cir. 1994).         Finally, such a motion would necessarily

be filed well outside the discovery period.              J.A. 39, 239.

     In conclusion, I do not believe that the facts presented in

this case are so exceptional as to fall outside the general rule

that a party waives arguments not advanced in its initial brief.

Moreover, I do not believe the facts presented in this case

justify deviating from well-settled precedent from this court

that prohibits an aggrieved litigant from raising arguments on

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appeal    when         he   or    she     fails      to    raise      the        same    before       the

district court judge.                  Finally, I do not believe our precedent

has    ever      required        a    district       court         judge    to    review       filings

before       a    magistrate          judge     to      determine          if    an     unruled-upon

implicit motion is buried in the docket.

       The       majority’s          position      necessarily         results          in   an   undue

restriction         on      a    magistrate         judge’s         ability       to     effectively

perform his delegated tasks and imposes additional duties upon a

delegating district court judge.                        Consequently, as envisioned by

Arn,     it      has     required         the      panel      to     address       matters        never

addressed         by     the      district         court      judge        and     has       caused     a

substantial waste of judicial resources.                                   The purpose of the

Magistrates         Act     was      to   assist        the    judiciary          as    a    whole     to

“reduce       increasingly            unmanageable         caseloads.”                Schronce,       727

F.2d at 93.            The Supreme Court has recognized that the judicial

system would “grind nearly to a halt” without the presence of

magistrate judges at the trial court level.                                      Wellness Intern.

Network, Ltd. v. Sharif, 135 S. Ct. 1932, 1939 (2015).

       The       majority’s          order    in    this      case    necessarily            traverses

several layers of waiver to conclude that remand of this matter

to the district court is appropriate.                              The majority’s opinion in

In re Carney best explains why affirming the grant of summary

judgment is the correct result:



                                                   21
         For   our    litigation  system   to   work
         effectively, litigants must comply with the
         Federal Rules of Civil Procedure. [The
         Estate’s] plight in this case exemplifies
         how repeated failures to do so ultimately
         preclude a party from presenting the merits
         of his case.
In re Carney, 258 F.3d 415, 422 (5th Cir. 2001).     Given the

aforementioned reasons, I must respectfully dissent.




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