The opinion of the court was delivered by: TROUTMAN
Negotiations for the purchase of numerous trucks and bottom dumpers commenced between the parties to this litigation in November 1972 in Milan, Italy. Representatives of plaintiffs
met with defendants
and reportedly informed them that they, plaintiffs, needed trucks and bottom dumpers to perform earth moving and excavation work under a potential contract amounting to well over one hundred million dollars between Impregilo and Centrais Electricas de Minas Gerais S.A. (CEMIG) for the construction of one of the largest dams ever built in South America. Defendants allegedly represented to plaintiffs that the machinery met all specifications for the work. When Impregilo received the contract award, the parties consummated the agreement of sale for the machinery. Upon delivery of the trucks to the project site in San Simao, Brazil, Impregilo allegedly experienced numerous breakdowns and difficulties attributable to failing front and rear differentials, piston deterioration and air compressor insufficiencies. Consequently, Impregilo could not use the trucks and bottom dumpers for the intended purposes and incurred additional costs occasioned thereby in order to meet its contractual obligations to CEMIG. To recover damages for breach of contract and warranties, plaintiffs instituted this action in October 1977.
Subsequently, the parties engaged in pre-trial discovery. In March 1980 defendant filed a motion to compel production of documents and answers to interrogatories. Specifically, defendant sought a document entitled the "documentation of the Mack claim"
compiled by Impregilo and submitted to Impregilo SPA in Milan and to plaintiffs' counsel in Washington, D.C. In addition, defendants requested production of communications in which plaintiffs discussed particular aspects of the preparation of Item Four.
The Court referred the matter to the magistrate, who, after hearing argument, issued an order dated March 14, 1980, granting defendants' motion as to Items Five, Six and Seven and denying it as to Item Four. On August 1, 1980, plaintiffs filed a motion to reverse the magistrate's discovery order. For all intents and purposes this motion, in fact, constitutes an appeal, which defendants attack preliminarily as untimely.
In pertinent part, the Federal Magistrates Act of 1968, as amended, 28 U.S.C. § 636(b)(1), provides that
a judge may designate a magistrate to hear and determine any pretrial matter pending before the court ... A judge of the court may reconsider any pretrial matter under this subparagraph (A) where it has been shown that the magistrate's order is clearly erroneous or contrary to law.
Within ten days after being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court.
(emphasis added). At the time the magistrate issued his order E.D. Pa. R. 46(b)(5)(a) permitted magistrates to determine discovery motions "subject to the right of appeal to the assigned Judge within ten days". On August 1, 1980, the date on which defendants filed this appeal, a superseding local rule of civil procedure became effective. The new rule, 7(IV)(a), affords any party the right to appeal a matter submitted to the magistrate "within ten days after issuance of the magistrate's order, unless a different time is prescribed by the magistrate or a judge". Whether the new rule operates retroactively will not be an issue. Viewed within the context of § 636(b), the new rule, more broadly phrased than the old one, neither anticipates nor permits, absent extraordinary circumstances, nunc pro tunc extensions of time in which to file an appeal.
Although the statute does not specifically allow a party to petition the court for an extension of time in which to file written objections to magistrates' rulings, certainly the court has the power, if not the duty, to review magistrates' rulings independently and carefully, irrespective of timely objections raised by the parties. See Mathews v. Weber, 423 U.S. 261, 96 S. Ct. 549, 46 L. Ed. 2d 483 (1976) and Webb v. Califano, 468 F. Supp. 825 (E.D. Cal. 1979).
However, where a dissatisfied party fails to file timely objections, the court need not entertain the appeal, for the ten-day period provided by § 636(b)(1) forms a maximum, not a minimum, framework. United States v. Barney, 568 F.2d 134 (9th Cir. 1978), cert. denied, 435 U.S. 955, 98 S. Ct. 1586, 55 L. Ed. 2d 806 (1978).
In In re Scheid's, Inc., 342 F. Supp. 290, 291 (E.D. Pa. 1972), the court held that the ten-day period for filing petitions for review of a referee's order under the former Bankruptcy Act of 1898, 11 U.S.C. § 67(c), was mandatory and inelastic, thus precluding any discretion on the part of the Court to consider petitions filed after the ten-day period [had] expired".
More recently, in Bank Building & Equipment Corp. of America v. Mack Local 677 Federal Credit Union, 87 F.R.D. 553 (E.D. Pa. 1980), the plaintiff failed to demand a trial by jury within ten days after the service of the last pleading directed to that issue. See Fed. R. Civ. P. 38(b). Having failed to demand a jury trial within ten days after replying to defendant's counterclaim, plaintiff had waived the right, which the court had the power and discretion to revive if the moving party had proferred an adequate and proper reason for untimely application therefor. However,
mere inadvertence, oversight, or lack of diligence [did] not justify the omission or abrogate the waiver. Nor [did] unfamiliarity with or misinterpretation of rules ...