Charter Oak Fire Insurance Company et al v. Interstate Mechanical, Inc. et al
Filing
122
OPINION AND ORDER: Travelers motion to strike 79 is DENIED. Glaciers motion for transfer or to dismiss for lack of personal jurisdiction 54 is DENIED. Glaciers oral motion for the Court to decline to exercise declaratory relief jurisdicti on is DENIED, with leave to renew at a later stage in the proceedings. The joint motions to strike filed by Travelers and Continental 111 117 are DENIED. Travelers motion to file a third amended complaint 57 is GRANTED. Continentals motion to amend its cross-claim 62 is GRANTED. Glaciers motion to vacate the default judgment against Interstate 73 is DENIED. Signed on 4/19/12 by Judge Michael W. Mosman. (dls)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
THE CHARTER OAK FIRE
INSURANCE COMPANY, et al.,
No. 3:10-cv-01505-PK
Plaintiffs,
OPINION AND ORDER
v.
INTERSTATE MECHANICAL, et al.,
Defendants.
MOSMAN, J.,
On March 29, 2012, Magistrate Judge Papak issued his Findings and Recommendation
(“F&R”) [120] in the above-captioned case, recommending that (a) the motion to strike filed by
Travelers Property Casualty Company of America (“Travelers”) [79] be denied; (b) the motion
for transfer of venue or to dismiss for lack of personal jurisdiction filed by Glacier Construction
Partners, LLC (“Glacier”) [54] be denied; (c) Glacier’s oral motion for the court to decline to
exercise declaratory relief jurisdiction be denied, with leave to renew at a later stage in the
proceedings; (d) the joint motions to strike filed by Travelers and Continental Western Insurance
Company (“Continental”) [111] [117] be denied; (e) the motion to file a third amended
complaint filed by Travelers [57] be granted; (f) Continental’s motion to amend its cross-claim
1 – OPINION AND ORDER
[62] be granted; and (g) Glacier’s motion to vacate a default judgment against Interstate
Mechanical, Inc. (“Interstate”) [73] be denied. No objections were filed.
DISCUSSION
The magistrate judge makes only recommendations to the court, to which any party may
file written objections. The court is not bound by the recommendations of the magistrate judge,
but retains responsibility for making the final determination. The court is generally required to
make a de novo determination regarding those portions of the report or specified findings or
recommendation as to which an objection is made. 28 U.S.C. § 636(b)(1)(C). However, the
court is not required to review, de novo or under any other standard, the factual or legal
conclusions of the magistrate judge as to those portions of the F&R to which no objections are
addressed. See Thomas v. Arn, 474 U.S. 140, 149 (1985); United States v. Reyna-Tapia, 328
F.3d 1114, 1121 (9th Cir. 2003). While the level of scrutiny under which I am required to
review the F&R depends on whether or not objections have been filed, in either case, I am free to
accept, reject, or modify any part of the F&R. 28 U.S.C. § 636(b)(1)(C).
Upon review, I do not adopt Judge Papak’s conclusion that 28 U.S.C. § 1391(a)(3) (2011)
provides an alternative basis for venue in Oregon. (See F&R [120] at 26–27); C2F, Inc. v. Bee
Paper Co., Inc., 08-cv-479-AC, 2008 WL 4791012, at *8 (D. Or. Oct. 28, 2008) (explaining that
this basis for venue is “not applicable because this action may otherwise be brought in another
district”). However, I agree with Judge Papak that venue is proper under section (a)(2) of the
venue statute. Accordingly, I agree with Judge Papak’s recommendation, and, with the minor
exception just noted, I ADOPT the F&R [120] as my own opinion.
CONCLUSION
Travelers’ motion to strike [79] is DENIED. Glacier’s motion for transfer or to dismiss
for lack of personal jurisdiction [54] is DENIED. Glacier’s oral motion for the Court to decline
2 – OPINION AND ORDER
to exercise declaratory relief jurisdiction is DENIED, with leave to renew at a later stage in the
proceedings. The joint motions to strike filed by Travelers and Continental [111] [117] are
DENIED. Travelers’ motion to file a third amended complaint [57] is GRANTED.
Continental’s motion to amend its cross-claim [62] is GRANTED. Glacier’s motion to vacate
the default judgment against Interstate [73] is DENIED.
IT IS SO ORDERED.
DATED this 19th
day of April, 2012.
/s/ Michael W. Mosman____
MICHAEL W. MOSMAN
United States District Court
3 – OPINION AND ORDER
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