Dauven et al v. U.S. Bancorp et al

Filing 230

ORDER: The Court ADOPTS as modified Magistrate Judge Acostas Findings and Recommendation 217 . Accordingly, the Court GRANTS Defendants Motions to Dismiss 180 , 181 , 184 , 190 , 200 , 207 , 208 , 209 ; DISMISSES Plaintiffs Claims 1-3 and 7-9 with prejudice; DISMISSES Plaintiffs Claims 4-6 and 10-12 without prejudice; and DISMISSES this matter in its entirety without further leave to amend. Signed on 05/12/2015 by Judge Anna J. Brown. See attached 4 page Order. (bb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

THEODORE (TED) E. DAUVEN,
BARBARA G. DAUVEN, AND
CHRISTIANA C. DAUVEN,
Plaintiffs,
v.
U.S. BANCORP; U.S. BANK
NATIONAL ASSOCIATION, as
trustee for MASTR ASSET
BACKED SECURITIES TRUST,
2006-WMC2; WELLS FARGO AND
COMPANY; IAN REEKIE; REEKIE
PROPERTIES, LLC; J.R. OLEYAR;
DANIEL STAUFFER; SHAWNA
STAUFFER; RANDALL STAUFFER;
CHRISTINA STAUFFER; ELIZABETH
BALKOVIC ALLAN; TERESA
BALKOVIC; MARY MARGARET
WEIBEL; SAMUEL TAYLOR V; and
ANNIE MECKLEY TENNESON,
Defendants.

1 - ORDER

3:13-CV-00844-AC
ORDER

BROWN, Judge.
Magistrate Judge John V. Acosta issued Findings and
Recommendation (#217) on March 2, 2015, in which he recommends
the Court grant in part and deny as moot in part Defendants’
Motions to Dismiss (#180, #181, #184, #190, #200, #207, #208,
#209) and decline to exercise supplemental jurisdiction over
Plaintiffs’ state-law claims.

Magistrate Judge Acosta also

recommends the Court dismiss without prejudice Plaintiffs’ Second
Amended Complaint (#170) and grant Plaintiffs leave to file a
third amended complaint to cure the deficiencies set out in the
Findings and Recommendation.

Plaintiffs filed timely Objections.

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 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).
In their Objections Plaintiffs reiterate the arguments
contained in their Response to Defendants’ Motions.

This Court

has carefully considered Plaintiffs’ Objections and concludes
they do not provide a basis to modify the Findings and
Recommendation.
2 - ORDER

The Court also has reviewed the pertinent

portions of the record de novo and does not find any error in the
Findings and Recommendation.

The Court, however, modifies the

Findings and Recommendation as follows:
As noted, the Magistrate Judge recommends this Court grant
Plaintiffs leave to file a third amended complaint to cure the
deficiencies set out in the Findings and Recommendation.

The

Ninth Circuit has made clear that when a plaintiff fails to state
a claim, “[l]eave to amend should be granted unless the pleading
‘could not possibly be cured by the allegation of other facts,’
and should be granted more liberally to pro se plaintiffs.”
Alcala v. Rios, 434 F. App’x 668, 670 (9th Cir. 2011)(quoting
Ramirez v. Galaza, 334 F.3d 850, 861 (9th Cir. 2003)).

The

Court, however, notes in the two years this matter has been
pending Plaintiffs have filed three lengthy Complaints to attempt
to cure the deficiencies noted by the Magistrate Judge and this
Court.

Plaintiffs, however, have still failed to state

adequately any claim.

Accordingly, the Court grants Defendants’

Motions to Dismiss with prejudice as to Plaintiffs’ federal
claims (Claims 1-3, 7-9).

In addition, the Court, in the

exercise of its discretion, declines to exercise supplemental
jurisdiction over Plaintiffs’ state-law claims (Claims 4-6, 1012) and, therefore, dismisses those claims without prejudice.

3 - ORDER

CONCLUSION
The Court ADOPTS as modified Magistrate Judge Acosta’s
Findings and Recommendation (#217).

Accordingly, the Court

GRANTS Defendants’ Motions to Dismiss (#180, #181, #184, #190,
#200, #207, #208, #209); DISMISSES Plaintiffs’ Claims 1-3 and 7-9
with prejudice; DISMISSES Plaintiffs’ Claims 4-6 and 10-12
without prejudice; and DISMISSES this matter in its entirety
without further leave to amend.
IT IS SO ORDERED.
DATED this 12th day of May, 2015.

/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge

4 - ORDER