MALASKY v. JULIAN (2018)

MEMORANDUM *

Henry Malasky appeals pro se from the magistrate judge’s order dismissing his action alleging federal claims. We have jurisdiction under 28 U.S.C. § 1291. We review de novo whether the magistrate judge had jurisdiction. Allen v. Meyer, 755 F.3d 866, 867-68 (9th Cir. 2014). We vacate and remand.

Plaintiff and defendants Julian and Plastiras consented to proceed before a magistrate judge. See 28 U.S.C. § 636(c). The magistrate judge then dismissed plaintiff’s action before the other named defendants had been served. See Fed. R. Civ. P. 4(m), 12(b)(6). Because all parties, including unserved defendants, must consent to proceed before the magistrate judge for jurisdiction to vest, Williams v. King, 875 F.3d 500, 503-04 (9th Cir. 2017), we vacate the magistrate judge’s order and remand for further proceedings.

Henry Malasky’s and Julian’s requests for oral argument, set forth in their briefs, are denied.

Appellees Martin and Garrett Malasky’s motion to dismiss the appeal (Docket Entry No. 9), joined by Appellee Jennifer Esposito (Docket Entry No. 12), is denied.

The parties shall bear their own costs on appeal.

VACATED and REMANDED.