In light of how busy the District of Delaware is right now, between COVID-19-related trial delays and just the ongoing burden of complex of patent filings (not to mention the likely impending departure of Judge Stark), I was curious just how often parties consent to jurisdiction over an action by a magistrate judge.
After all, we've all seen the "notice, consent and referral forms re: U.S. Magistrate Judge jurisdiction" that are filed in new cases. Surely parties sometimes take the Court up on this, right?
The answer appears to be: yes, but not all that often. At least according to Docket Navigator, there have been only 12 cases in the District of Delaware since 2012 where the parties filed a general "consent to jurisdiction by U.S. Magistrate Judge" form on the docket (not counting related cases).
I expect that I'm missing some consents in that count, including cases where the parties have consented at a Court teleconference or otherwise in ways that do not involve filing the form. But that number is basically consistent with my experience. I haven't seen all that many cases where the parties consent to magistrate judge jurisdiction for the entire case, especially absent prompting from the Court.
Why Don't More Parties Consent to Magistrate Judges Hearing Their Cases?
Assuming I'm right about the number of freestanding consents, I have some thoughts as to why it might be low. First, there is no requirement to file a form if the parties do not consent, and no deadline for doing so. For some litigants, if there is no deadline then it's not very likely that a decision is going to be made.
Second, if one party proposes consenting to magistrate judge jurisdiction, the other side is naturally going to feel like they should oppose—because why would the other side be proposing it unless it benefits them? E.g., "what does the other side know that we do not?" Thus, a party may oppose simply because they assume it must be better for the other side.
In my view, if the Court is looking to increase the number of consents—and I don't know whether it is or not—it could require the parties in each case to either jointly consent or to file a letter stating that they verbally met and conferred could not reach agreement on the subject of magistrate judge consent (without identifying which party or parties refused). That would at least prompt the parties to discuss the issue.
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