Metcalf v. Blue Cross Blue Shield of Michigan et al

Filing 23

ORDER - No party having made objections, this court follows the recommendation of the Advisory Committee and reviews Judge Stewart's Findings and Recommendation 21 for clear error on the face of the record. No such error is apparent. Therefore the court orders that Judge Stewart's findings and recommendation 21 is ADOPTED. The Motion to Dismiss 11 is DENIED. Signed on 6/4/12 by Judge Michael H. Simon. (mja)

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

ROBERT METCALF,
Plaintiff,
v.

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No. 3: ll-CV-1305-ST

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BLUE CROSS BLUE SIDELD OF
MICHIGAN, DAIMLER-CHRYSLER
NORTH AMERICA, and DAIMLER
TRUCKN.A.LLCUAWHEALTH
BENEFITS PLAN,

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ORDER ADOPTING FINDINGS AND
RECOMMENDATION

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Defendants.

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SIMON, District Judge.
On April 20, 2012, Magistrate Judge Janice M. Stewart issued Findings and
Recommendation (#21) in the above-captioned case. Judge Stewart recommended that this court
deny the Motion to Dismiss (#11) submitted by Defendants Blue Cross Blue Shield of Michigan,
Daimler Trucks North America, and Daimler Truck N.A. LLC UAW Health Benefits Plan.
Neither party has filed objections to Judge Stewart's Findings and Recommendation.
Under the Federal Magistrates Act, the court may "accept, reject or modify, in whole or
in part, the [mdings or recommendations made by the magistrate." Federal Magistrates Act, 28
U.S.C. § 636(b)(1). If a party files objections to a magistrate's [mdings and recommendations,

"the court shall make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made." Id.; Fed. R. Civ. P. 72(b)(3).
If, however, no objections are filed, the Magistrates Act does not prescribe any standard of
review. In such cases, "[t]here is no indication that Congress, in enacting [the Magistrates Act],
intended to require a district judge to review a magistrate's report[.]" Thomas v. Arn, 474 U. S.
140, 152 (1985); see also United States v. Reyna-Tapia, 328 F.3d 1114,1121 (9th Cir. 2003) (en

bane), eert. denied, 540 U.S. 900 (the court must review de novo the magistrate's findings and
recommendations if objection is made, "but not otherwise").
Although in the absence of objections no review is required, the Magistrates Act "does
not preclude further review by the district judge[] sua sponte . .. under a de novo or any other
standard." Thomas, 474 U.S. at 154. Indeed, the Advisory Committee Notes to Federal Rule of
Civil Procedure 72(b) recommend that "[w]hen no timely objection is filed," the court review the
magistrate's [mdings and recommendations for "clear error on the face of the record."
No party having made objections, this court follows the recommendation of the Advisory
Committee and reviews Judge Stewart's Findings and Recommendation (#21) for clear error on
the face of the record. No such error is apparent. Therefore the court orders that Judge Stewart's
findings and recommendation (#21) is ADOPTED. The Motion to Dismiss (#11) is DENIED.
Dated this 4th day of June, 2012.

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Michael H. Simon
United States District Judge

ORDER - Page 2