Expedite, Inc. v. Plus, Bags, Cars & Serv, LLC et al

Filing 44

ORDER: The Court adopts Magistrate Judge Acosta's Findings and Recommendation 39 . Therefore, Plus's motion to dismiss 27 is granted. Claims one through three (Sherman Antitrust Act, Clayton Act, and intentional interference with economic relations) are dismissed with prejudice. Plaintiff is granted leave to amend only the fraud claim to plead it with specificity. See 3-page order attached. Signed on 12/19/2011 by Judge Marco A. Hernandez. (mr)

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

EXPEDITE, INC.,

No. 03:11-CV-329-AC
Plaintiff,

v.
PLUS, BAGS, CARS, & SERV, LLC, a
Florida corporation and ALASKA
AIRLINES, INC., a Washington corporation,
Defendants.

Geordie L. Duckler
Geordie Duckler, LLC
9397 SW Locust St.
Tigard, OR 97223
Attorney for Plaintiff
Hal K. Litchford
Marisa E. Rosen
1 - ORDER

ORDER

Richard C. Swank
Litchford & Christopher, Professional Association
P.O. Box 1549
Orlando, FL 32802-1549
Sarah J. Crooks
Perkins Coie, LLP
1120 NW Couch Street, 10th Floor
Portland, OR 97209-4128
Attorneys for Defendant
Plus, Bags, Cars & Serv, LLC
HERNANDEZ, District Judge:
Magistrate Judge Acosta issued a Findings and Recommendation (# 39) on October 21,
2011, in which he recommends the Court should grant defendant Plus, Bags, Cars & Serv, LLC’s
(“Plus”) motion to dismiss (#27). Plaintiff Expedite, Inc. timely filed objections to the Findings
and Recommendation. The matter is now before me pursuant to 28 U.S.C. § 636(b)(1) and
Federal Rule of Civil Procedure 72(b). 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); Dawson v. Marshall, 561
F.3d 930, 932 (9th Cir. 2009); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.
2003) (en banc).
Plaintiff lists several objections that may be summarized in the following categories: (1)
not recognizing specific allegations in plaintiff’s complaint, (2) disagreeing with findings made
by the Magistrate Judge, and (3) disagreeing with the Magistrate Judge’s finding that plaintiff is
unable to cure the claims by amendment. Pl.’s Objections, 1-5. With respect to the first and
second objections, plaintiff has failed to provide any legal argument to support those objections.

2 - ORDER

Instead, plaintiff simply states “Plaintiff specifically objects” and then quotes the allegations
from the complaint or the findings from the Findings and Recommendation. With respect to the
third objection, plaintiff claims that he is being denied a “reasonable opportunity to amend” to
maintain the Sherman Antitrust Act, Clayton Act, and intentional interference with economic
relations claims. Plaintiff previously had the opportunity to amend the original complaint in
response to a motion to dismiss for failure to state a claim. Pl.’s Resp. to Mot. to Dismiss, Dkt.
#14; First Am. Compl., Dkt. #25. The amended complaint still suffers from the same factual
deficiencies raised in the first motion to dismiss.
I have carefully considered plaintiff’s objections and conclude that the objections do not
provide a basis to modify the recommendation that Ohio Casualty’s summary judgment be
granted. I have also reviewed the pertinent portions of the record de novo and find no error in the
Magistrate Judge’s Findings and Recommendation.
CONCLUSION
The Court adopts Magistrate Judge Acosta’s Findings and Recommendation (#39).
Therefore, Plus’s motion to dismiss (#27) is granted. Claims one through three (Sherman
Antitrust Act, Clayton Act, and intentional interference with economic relations) are dismissed
with prejudice. Plaintiff is granted leave to amend only the fraud claim to plead it with
specificity.
IT IS SO ORDERED.
DATED this 19th

day of December, 2011.

/s/ Marco A. Hernandez
MARCO A. HERNANDEZ
United States District Judge
3 - ORDER