Skinner v. CIGNA Healthcare of Arizona Incorporated et al

Filing 30

ORDERED the Report and Recommendation of Magistrate Judge Macdonald (Doc. 27 ) is APPROVED AND ADOPTED. Defendant's Motion to Dismiss (Doc. 15 ) is GRANTED. Plaintiff's Objection to the R&R (Doc. 28 ) is OVERRULED. Counts 1, 3, 4 and 5 of Plaintiff's Second Amended Complaint are DISMISSED WITH PREJUDICE. The matter remains referred to Magistrate Judge Macdonald for all pretrial proceedings and report and recommendation. Signed by Judge Jennifer G Zipps on 3/22/2017. (KEP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Robert Skinner,
Plaintiff,

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ORDER

v.

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No. CV-16-00236-TUC-JGZ (BGM)

Tel-Drug Incorporated, et al.,

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Defendants.

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Pending before the Court is Magistrate Judge Bruce G. Macdonald’s Report and

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Recommendation (R&R) recommending that Defendant’s Motion to Dismiss be granted.

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(Doc. 27.) Plaintiff has filed an objection to the Report and Recommendation to which

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Defendant has replied. (Docs. 28, 29.) After considering the Report and Recommendation

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and the arguments raised in Plaintiff's Objection, the Court will overrule the objection

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and adopt Judge Macdonald’s Report and Recommendation.

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STANDARD OF REVIEW

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When reviewing a Magistrate Judge's Report and Recommendation, this Court

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“shall make a de novo determination of those portions of the report ... to which objection

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is made,” and “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate judge.” 28 U.S.C. § 636(b) (1)(c); see also

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Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991) (citing Britt v. Simi Valley

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Unified Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983)). Failure to object to a Magistrate

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Judge's recommendation relieves the Court of conducting de novo review of the

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Magistrate Judge's factual findings; the Court then may decide the dispositive motion on

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the applicable law. Orand v. United States, 602 F.2d 207, 208 (9th Cir. 1979) (citing

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Campbell v. United States Dist. Ct., 501 F.2d 196 (9th Cir. 1974)).
DISCUSSION1

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Plaintiff presents three objections to the R&R. First, Plaintiff contends that the

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R&R improperly recommends dismissal of Plaintiff’s entire case, despite the fact that

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Defendant only moved for dismissal of counts 1, 2, 4 and 5 of Plaintiff’s Second

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Amended Complaint. The R&R does recommend granting Defendant’s R&R. However,

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the Motion to Dismiss was a partial motion and the R&R clearly states in its Conclusion

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that “Plaintiff has failed to state a claim for breach of contract (count one), negligence per

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se (count three), or invasion of privacy (counts four and five). These claims should be

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dismissed without further leave to amend.”

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objection is without merit.

(Doc. 27, pg. 10.)

Accordingly, this

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Second, Plaintiff objects to the R&R for the reasons stated in Plaintiff’s “briefing

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and oral arguments in this case.” (Doc. 28, pg. 2.) The Court has reviewed the record in

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this matter and concludes that the Magistrate Judge’s R&R is well-reasoned and that

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Plaintiff’s arguments do not undermine the analysis and proper conclusion reached by the

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Magistrate Judge. Accordingly, this objection is overruled.

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Plaintiff’s third “objection” is actually a request for leave of Court to file a Third

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Amended Complaint in order to add a negligence per se claim based on an alleged

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violation of A.R.S. § 12-2292. (Doc. 28, pgs. 2-7.) This issue was not fairly presented to

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the Magistrate Judge in the briefing of the Motion to Dismiss. Count 3 of Plaintiff’s

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Second Amended Complaint is captioned “Third Cause of Action: Negligence Per Se,

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Health Insurance Portability and Accountability Act [HIPAA]).” (Doc. 14, pg. 10.) In

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the Motion to Dismiss, Defendant argued that negligence per se liability cannot be based

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on the defendant’s alleged violation of HIPAA. Plaintiff’s response to the Motion to

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The factual and procedural history of this case are set forth in the Magistrate
Judge's Report and Recommendation. (Doc. 27.)
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Dismiss included a passing reference to A.R.S. § 12-2292; Plaintiff argued that Plaintiff

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should be allowed to prove Defendant’s violation of the standard of duty through HIPAA

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because HIPAA and A.R.S. § 12-2292 construed together established an expectation that

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the duty of care includes a duty not to disclose medical records. It appears from the

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record that, at the argument on the pending Motion, Plaintiff made an oral motion to

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amend his complaint to include a negligence per se claim based on an alleged violation of

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A.R.S. § 12-2292. But the parties have not briefed the issue of whether A.R.S. § 12-2292

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can be the basis for a negligence per se claim under Arizona law.

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Magistrate Judge noted that A.R.S. § 12-2292 did not appear to create a private right of

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action, the issue of whether Plaintiff could state a claim for negligence per se based on

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A.R.S. § 12-2292 was not before the Magistrate Judge and the R&R did not resolve that

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issue. The Magistrate Judge’s recommendation that Plaintiff’s negligence per se claim

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(Count 3) be dismissed without leave to amend only applies to Plaintiff’s negligence per

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se claim arising under HIPAA, as alleged in Plaintiff’s Second Amended Complaint.

Although the

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An Objection to an R&R is not the appropriate vehicle for seeking leave to amend.

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The Court declines to consider Plaintiff’s request, but its dismissal of Counts 1, 3, 4 and 5

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of Plaintiff’s Second Amended Complaint does not preclude Plaintiff from filing a

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motion to amend his Second Amended Complaint in order to allege a claim for

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negligence per se arising under A.R.S. § 12-2292. The Court takes no position regarding

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the legal viability of such a claim.

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CONCLUSION
THEREFORE, IT IS ORDERED THAT:
1. The Report and Recommendation of Magistrate Judge Macdonald (Doc. 27) is
APPROVED AND ADOPTED;

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2. Defendant’s Motion to Dismiss (Doc. 15) is GRANTED;

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3. Plaintiff’s Objection to the R&R (Doc. 28) is OVERRULED;

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4. Counts 1, 3, 4 and 5 of Plaintiff’s Second Amended Complaint are DISMISSED

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WITH PREJUDICE.

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5. The matter remains referred to Magistrate Judge Macdonald for all pretrial

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proceedings and report and recommendation in accordance with the provisions of

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28 U.S.C. § 636(b)(1) and LR Civ. 72.1 and 72.2.

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Dated this 22nd day of March, 2017.

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Honorable Jennifer G. Zipps
United States District Judge

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