Brownlow et al v. American Beef Processing, LLC et al

Filing 69

ORDER: The Court ADOPTS Magistrate Judge Acosta's Findings and Recommendation 60 . The Court GRANTS Plaintiffs' request to retain jurisdiction for the sole purpose of resolving any motion to reconsider this Court's denial of Plaintiffs' Motion 51 for Attorneys' Fees as set out in this Order.Signed on 07/27/2011 by Judge Anna J. Brown. See 4 page Order for full text. (bb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION

DAVID BROWNLOW; JIM EHLERT;
CHRIS CARROLL; CHET E. DAVIS;
LAWRENCE P. DOLAN; DELTA J.
ENTERPRISES, an Oregon
Limited Partnership; DENNIS
JACKSON; JEFF JOHNSON; KRIS
JOHNSON; BRUCE PAYNE; JOE
NELSON; SHERRY SHERMAN;
DENISE WHEELAND; AND GERALD
WHEELAND,
Plaintiff,
v.
AMERICAN BEEF PROCESSING,
LLC; ANTHONY J. GARWOOD; JOHN
S. EWALD; JULIE C. GARWOOD;
RICH CASPER; JAMES PETERSON;
AND FOLEY & LARDNER, LLP,
Defendants.

1 - OPINION AND ORDER

3:09-CV-1277-AC

ORDER

BROWN, Judge.
Magistrate Judge John Acosta issued Findings and
Recommendation (#60) on June 21, 2011, in which he recommends
this Court deny Plaintiffs’ Motion (#51) for Attorneys’ Fees.
The matter is now before this Court pursuant to 28 U.S.C.
§ 636(b)(1)(B) and Federal Rule of Civil Procedure 72(b).
Plaintiffs filed timely Objections (#65) to the Magistrate
Judge’s Findings and Recommendation.

When any party objects to

any portion of the Magistrate Judge's Findings and
Recommendation, the district court must make a de novo
determination of that portion of the Magistrate Judge's report.
28 U.S.C. § 636(b)(1).

See also United States v. Reyna-Tapia,

328 F.3d 1114, 1121 (9th Cir. 2003)(en banc); United States v.
Bernhardt, 840 F.2d 1441, 1444 (9th Cir. 1988).
The Court has completed its consideration of Plaintiffs’
Objections and has reviewed de novo those portions of the
Findings and Recommendation to which Plaintiffs object.

The

Court does not find any error in the Magistrate Judge’s analysis
and concludes Plaintiffs have not shown any basis to modify the
Findings and Recommendation.
The Court, however, notes it received a letter from James E.
Leuenberger, counsel for Plaintiffs, on July 22, 2011, in which
Mr. Leuenberger contends he has evidence that James Dowell,
counsel for Defendants, made untrue statements to this Court that
2 - OPINION AND ORDER

were material to the Court’s consideration of Plaintiffs’ Motion
for Attorneys’ Fees.

As support for his contention, Leuenberger

also submitted the Declaration of Shawna Dicintio, a former
paralegal for Dowell.

The Court directs the Clerk to file these

documents in the record.
In his letter, Leuenberger indicates he is in the process of
requesting an investigation by the Oregon State Bar.
Accordingly, Leuenberger requests this Court to retain
jurisdiction over this matter for the sole purpose of determining
whether the Motion for Attorneys’ Fees should be revisited in
light of any new evidence that may come to light in this process.
In light of Leuenberger’s letter and the supporting
Declaration of Dicintio, the Court grants Plaintiffs’ request to
retain jurisdiction over this matter solely for the purpose of
resolving any motion to reconsider the Findings and
Recommendation the Court now adopts provided that Plaintiffs file
any such motion within a reasonable time and pursuant to Federal
Rule of Civil Procedure 60.

Nonetheless and in accordance with

the Court’s Order (#59), this matter should be remanded to state
court.

CONCLUSION
The Court ADOPTS Magistrate Judge Acosta's Findings and
Recommendation (#60).
3 - OPINION AND ORDER

The Court GRANTS Plaintiffs’ request to

retain jurisdiction for the sole purpose of resolving any motion
to reconsider this Court’s denial of Plaintiffs’ Motion (#51) for
Attorneys’ Fees as set out in this Order.
IT IS SO ORDERED.
DATED this 27th day of July, 2011.

/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge

4 - OPINION AND ORDER