Midland National Life Insurance Company v. Lacheln et al

Filing 30

ORDER: The Court ADOPTS Magistrate Judge Jelderkss Findings and Recommendation 25 and GRANTS Defendant Debra Lacheln's Motion to Dismiss 17 the First Crossclaim by Defendants Amy Eileen Painter and the Estate of Ralph Arthur Painter. Signed on 06/04/2012 by Judge Anna J. Brown. See attached 3 page Order for full text. (bb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

MIDLAND NATIONAL LIFE
INSURANCE COMPANY,

3:11-CV-957-JE
ORDER

Plaintiff,
v.
DEBRA LACHELN, f/k/a DEBRA
KIM PAINTER; AMY EILEEN
PAINTER; and ESTATE OF RALPH
ARTHUR PAINTER,
Defendants.

BROWN, Judge.
Magistrate Judge John Jelderks issued Findings and
Recommendation (#25) on March 27, 2012, in which he recommended
the Court grant Defendant Debra Lacheln's Motion to Dismiss (#17)
the First Crossclaim by Defendants Amy Eileen Painter and Estate
of Ralph Arthur Painter.

1 - ORDER

The Estate filed timely Objections

(#27) to the Findings and Recommendations.

The matter is now

before this Court 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).

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).
In its Objections, the Estate reiterates the arguments
contained in its Response to Lacheln's Motion to Dismiss and
stated at oral argument in support of its position that the Court
should not dismiss its First Crossclaim for the attorneys’ fees
and costs of this action.

In its two briefs and at oral

argument, the Estate cited only Swartsley v. California Western
Reconveyance Corp., 212 Or. App. 365 (2007), to support its
position that it may properly recover its attorneys’ fees from
Lacheln.

The Magistrate Judge, however, correctly distinguished

the claim for wrongful initiation of a civil proceedings at issue
in Swartsley from the Estate’s First Crossclaim.

Although the

Estate characterizes its Crossclaim as one for breach of
contract, the Court agrees with the Magistrate Judge that
attorneys’ fees cannot be awarded as damages for such a claim
under Oregon law and are not recoverable by a prevailing party

2 - ORDER

except as provided by contract or by statute.

The parties agree

there is not any contractual or statutory provision that would
permit the Estate to receive an award of attorneys’ fees under
the circumstances.

Accordingly, the Court concludes the Estate’s

First Crossclaim should be dismissed.
After carefully considering the Estate's Objections, the
Court concludes they do not provide a basis to modify the
Findings and Recommendation.

The Court also has reviewed the

remaining pertinent portions of the record de novo and does not
find any error in the Magistrate Judge's Findings and
Recommendation.

CONCLUSION
The Court ADOPTS Magistrate Judge Jelderks’s Findings and
Recommendation (#25) and GRANTS Defendant Debra Lacheln's Motion
to Dismiss (#17) the First Crossclaim by Defendants Amy Eileen
Painter and the Estate of Ralph Arthur Painter.
IT IS SO ORDERED.
DATED this 4th day of June, 2012.
/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge

3 - ORDER