The opinion of the court was delivered by: Rufe, J.
Plaintiff, Edward Payne, filed suit against Home Depot, alleging claims of employment discrimination. At Mr. Payne's request, the Court referred the case to the Plaintiff's Employment Panel for the Eastern District of Pennsylvania for possible appointment of counsel. *fn1 Scott M. Pollins, Esquire, accepted the appointment and entered his appearance on May 23, 2011. *fn2
Counsel filed an amended complaint two days later,
*fn3 Defendant answered, *fn4
the Court entered a scheduling order, *fn5
and on December 22, 2011, the parties filed a stipulation
of voluntary dismissal representing that the case had been
On May 7, 2012, Mr. Payne filed a pro se motion to reopen the case, alleging a violation of his right to trial and "gross dissatisfaction" with the outcome of the case. *fn7 The Court referred the motion to reopen to Chief Magistrate Judge Carol Sandra Moore Wells for a hearing to determine whether good cause existed to vacate the dismissal pursuant to Federal Rule of Civil Procedure 60(b), and directed Mr. Payne, Mr. Pollins, and counsel for defendant to appear. *fn8
Judge Wells held a hearing on June 18, 2012, and heard testimony from Mr. Payne. When the record was complete, Judge Wells stated "[i]f all the parties would permit, I would like to have an opportunity to talk to counsel, plaintiff, and later the defendants." *fn9 The hearing then recessed, and when it resumed, the following occurred on the record:
[Judge Wells]: Everyone may be seated. We've taken a recess. With the permission of all the parties present I've had an opportunity to talk to both sides. I still have plaintiff here. Mr. Payne is still on the witness stand, and I have a question for him. We've had numerous discussions. Is there anything you'd like to do or say?
Mr. Payne: Yes, Your Honor, I would like to withdraw my motion to have the case reopened.
[Judge Wells]: All right. Is somebody forcing you to withdraw that motion? Mr. Payne: No, Your Honor, they are not. [Judge Wells]: All right. Who was present with you when you made that decision?
Mr. Payne: Your Honor, in the room was myself, Your Honor, the
Honorable Judge Wells, and Mr. Scott Pollins, my attorney. [Judge Wells]: Okay. And were my law clerk and intern also present for some of the discussion or most of it?
Mr. Payne: Yes, Your Honor, my mistake; the law clerk and your assistant were also present.
[Judge Wells]: All right. So based on that encounter, I will accept your request and I will enter an order withdrawing the Rule 60(b) claim, and the settlement stands as it was. *fn10
Judge Wells entered the order withdrawing the motion the same
day. *fn11 One week later, on June 26, 2012,
Mr. Payne filed a pro se notice of appeal.
*fn12 By order dated October 22, 2012, the Court
of Appeals for the Third Circuit dismissed the appeal for lack of
appellate jurisdiction and directed the Clerk of the District Court to
treat the notice of appeal as an appeal to the District Judge from the
Magistrate Judge's order entered June 18, 2012. *fn13
This Court granted the parties an opportunity to brief
the appeal, which both Mr. Payne and counsel for Defendant have done,
and the appeal is now ready for decision.
The appeal must be denied. Mr. Payne does not even mention the June 18, 2012 hearing where he explicitly withdrew his motion on the record. Given Mr. Payne's unequivocal statements on the record, Judge Wells in no way erred in entering the order marking the motion as withdrawn. ...