CHMM, LLC v. Freeman Marine Equipment, Inc.

Filing 35

ORDER: The Court ADOPTS Magistrate Judge Stewarts Findings andRecommendation 28 , GRANTS Defendant's Motion 11 to Dismiss as to Plaintiff's First through Fifth Claims for damage to property installed on and integrated into the V essel prior to its delivery by Nobiskrug to Plaintiff, GRANTS Defendant's Motion 11 as to that portion of Plaintiff's Sixth Claim alleging a breach of contract, and DENIES the remaining portions of Defendant's Motion as to Plaintiff& #039;s other claims. The Court GRANTS Plaintiff leave to file a Second Amended Complaint no later than 2/21/2013, to the extent that Plaintiff seeks tort remedies for damage to "other property" added after delivery of the Vessel by Nobiskrug to Plaintiff. If Plaintiff does not file a Second Amended Complaint, this matter will proceed on the remaining claims in Plaintiff's Amended Complaint. Signed on 02/07/2013 by Judge Anna J. Brown. (bb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

CHMM, LLC,

3:12-CV-01484-ST
Plaintiff,

ORDER

v.
FREEMAN MARINE EQUIPMENT,
INC.,
Defendant.

BROWN, Judge.
Magistrate Judge Janice M. Stewart issued Findings and
Recommendation (#28) on December 17, 2012, in which she
recommended the Court grant Defendant's Motion (#11) to Dismiss
as to Plaintiff's First through Fifth Claims for damage to
property installed on and integrated into the Vessel prior to its
delivery by Nobiskrug to Plaintiff, grant Defendant's Motion
(#11) as to that portion of Plaintiff's Sixth Claim alleging a
1 - ORDER

breach of contract, and deny the remaining portions of
Defendant's Motion as to Plaintiff's other claims.

The

Magistrate Judge also recommended Plaintiff be allowed to amend
its Amended Complaint to the extent that Plaintiff seeks tort
remedies for damage to "other property" added after delivery of
the Vessel by Nobiskrug to Plaintiff.

Plaintiff filed timely

Objections to the Findings and Recommendation.

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, Plaintiff reiterates the arguments
contained in its Response to Defendant's Motion to Dismiss and
stated at oral argument.

This Court has carefully considered

Plaintiff's Objections and concludes they do not provide a basis
to modify the Findings and Recommendation.

The Court also has

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

2 - ORDER

CONCLUSION
The Court ADOPTS Magistrate Judge Stewart’s Findings and
Recommendation (#28), GRANTS Defendant's Motion (#11) to Dismiss
as to Plaintiff's First through Fifth Claims for damage to
property installed on and integrated into the Vessel prior to its
delivery by Nobiskrug to Plaintiff, GRANTS Defendant's Motion
(#11) as to that portion of Plaintiff's Sixth Claim alleging a
breach of contract, and DENIES the remaining portions of
Defendant's Motion as to Plaintiff's other claims.
The Court GRANTS Plaintiff leave to file a Second Amended
Complaint no later than February 21, 2013, to the extent that
Plaintiff seeks tort remedies for damage to "other property"
added after delivery of the Vessel by Nobiskrug to Plaintiff.
Plaintiff does not file a Second Amended Complaint, this matter
will proceed on the remaining claims in Plaintiff's Amended
Complaint.
IT IS SO ORDERED.
DATED this 7th day of February, 2013.
/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge

3 - ORDER

If