Holdner v. Kroger et al

Filing 51

Opinion and Order Adopting Findings & Recommendation - The Court orders that Judge Papak's findings and recommendation 47 are ADOPTED. Defendants' Motion to Dismiss 21 is GRANTED. All other pending motions are denied as moot. Judgment will be entered for Defendants. Signed on 12/10/12 by Judge Michael H. Simon. (mja)

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

WILLIAM E. HOLDNER, an individual )
dba HOLDNER FARMS,
)
)
Plaintiff,
)
)
v.
)
)
JOHN KROGER, Attorney General of
)
Oregon, et al.,
)
)
Defendants.
)
____________________________________)

No. 3:12-cv-1159-PK

OPINION AND ORDER ADOPTING
FINDINGS AND RECOMMENDATION

SIMON, District Judge.
Magistrate Judge Paul Papak issued findings and recommendation in the above-captioned
case on November 6, 2012. Dkt. 47. Judge Papak recommended that Defendants’ Motion to
Dismiss, Dkt. 21, be GRANTED. Plaintiff timely filed objections. Dkt. 49. Defendant has
responded to those objections. Dkt. 50.
Under the Federal Magistrates Act (“Act”), the court may “accept, reject or modify, in
whole or in part, the findings or recommendations made by the magistrate.” 28 U.S.C.
§ 636(b)(1). If a party files objections to a magistrate’s findings 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).
The Court has reviewed de novo those portions of Judge Papak’s findings and
recommendation to which Plaintiff has objected, as well as Plaintiff’s objections and
Defendants’ response. The Court agrees with Judge Papak’s reasoning regarding Younger
abstention and claim preclusion and adopts those portions of the findings and recommendation.
For those portions of a magistrate’s findings and recommendations to which neither party
has objected, the Act does not prescribe a standard of review. Indeed, where there are no
objections, “[t]here is no indication that Congress . . . 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 banc), cert. denied, 540 U.S. 900
(2003) (the court must review de novo magistrate’s findings and recommendations if objection is
made, “but not otherwise”). Although review is not required in the absence of objections, the
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. Furthermore, the Advisory Committee Notes to
Fed. R. Civ. P. 72(b) recommend that “[w]hen no timely objection is filed,” the court review the
magistrate’s findings and recommendations for “clear error on the face of the record.”
For those portions of Judge Papak’s findings and recommendation to which neither party
has objected, this Court follows the recommendation of the Advisory Committee and reviews
those matters for clear error on the face of the record. No such error is apparent.

OPINION & ORDER – Page 2

Therefore the Court orders that Judge Papak’s findings and recommendation, Dkt. 47, are
ADOPTED. Defendants’ Motion to Dismiss, Dkt. 21, is GRANTED. All other pending motions
are DENIED AS MOOT. Judgment will be entered for Defendants.
Dated this 10th day of December, 2012.

/s/ Michael H. Simon_____
Michael H. Simon
United States District Judge

OPINION & ORDER – Page 3