Howard v. Maximus, Inc. et al
Filing
31
ORDER: The Court ADOPTS that portion of Magistrate Judge Stewarts Findings and Recommendation 27 in which she recommends the Court GRANT Defendant's Motion 20 to Dismiss Plaintiffs § 1983 claims with prejudice and Plaintiffs RICO and Piercing the Corporate Veil claims. The Court, however, DISMISSES Plaintiffs RICO and Piercing the Corporate Veil claims without prejudice. The Court also GRANTS leave to Plaintiff to file an amended complaint no later than February 24, 2 014, only as to his RICO and Piercing the Corporate Veil claims to attempt to cure the deficiencies set out in the Findings and Recommendations. If Plaintiff files an amended complaint, the Magistrate Judge shall review the amended complaint to de termine whether Plaintiff has cured the deficiencies. If Plaintiff does not file an amended complaint and cure the deficiencies by February 24, 2014, the Court will dismiss this matter with prejudice. See attached 7 page Order for full text. Signed on 02/05/2014 by Judge Anna J. Brown. (bb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MELVIN J. HOWARD,
3:13-cv-01111-ST
Plaintiff,
ORDER
v.
MAXIMUS, INC., d/b/a MAXIMUS,
CANADA, INC., d/b/a THEMIS
PROGRAM MANAGEMENT &
CONSULTING LTD.; STEVE
KITCHER, in his individual
capacity; and JOANNE PLATT,
in her individual capacity,
Defendants.
BROWN, Judge.
Magistrate Judge Janice M. Stewart issued Findings and
Recommendation (#27) on November 20, 2013, in which she
recommends the Court grant the Motion (#20) to Dismiss of
Defendant Maximus, Inc.1
Plaintiff, appearing pro se, filed
timely Objections to the Findings and Recommendation.
1
The matter
The Magistrate Judge notes Plaintiff also filed his
Complaint against two individual Defendants, Steve Kitcher and
Joanne Platt, who have not yet been served.
1 - ORDER
is now before this Court pursuant to 28 U.S.C. § 636(b)(1) and
Federal Rule of Civil Procedure 72(b).
I.
Portions of the Findings and Recommendation to which
Plaintiff Does Not Object
It appears Plaintiff does not object to the portions of the
Findings and Recommendation in which the Magistrate Judge
dismisses with prejudice Plaintiff’s “Piercing the Corporate
Veil” claim and Defendant’s alternative request for dismissal
under Federal Rule of Civil Procedure 12(b)(7) for failure to
join “required” parties under Federal Rule of Civil Procedure 19.
The Court, therefore, is relieved of its obligation to review the
record de novo as to these portions of the Findings and
Recommendation.
See Shiny Rock Min. Corp v. U.S., 825 F.2d 216,
218. (9th Cir. 1987).
See also Lorin Corp. v. Goto & Co., 700
F.2d 1202, 1206 (8th Cir. 1983).
Having reviewed the legal principles de novo, the Court does
not find any error in these portions of the Findings and
Recommendation except that the Court dismisses Plaintiff’s
“Piercing the Corporate Veil” claim without prejudice.
II.
Portions of the Findings and Recommendation to which
Plaintiff Objects
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).
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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).
Plaintiff appears to object to the part of the Findings and
Recommendation in which the Magistrate Judge concludes
Plaintiff’s claim under 42 U.S.C. § 1983 should be dismissed for
lack of subject-matter jurisdiction and Plaintiff’s claims under
the Racketeer Influenced and Corrupt Organizations Act (RICO), 18
U.S.C. § 1962, et seq., should be dismissed for failure to state
a claim.
Plaintiff appears to argue that his case “touches and
concerns the territory of the United States with sufficient
force” that his § 1983 and RICO claims should not be dismissed.
This Court has carefully considered Plaintiff's Objections
and concludes they do not provide a basis to modify these
portions of 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.
III. Defendant’s Alternative Argument for Failure to Join
Required Parties under Rule 19
As noted, the Court does not find error in the Magistrate
Judge’s conclusions that Plaintiff’s § 1983 claim should be
dismissed for lack of jurisdiction and his RICO and “Piercing the
Corporate Veil” claims should be dismissed for failure to state a
claim.
Although the Magistrate Judge concludes the Court need
not reach the issue of Defendant’s alternative argument that
3 - ORDER
Plaintiff’s claims should be dismissed for failure to join
required parties, the Magistrate Judge included a discussion of
the merits of Defendant’s alternative argument.
Because the
Court concludes Plaintiff’s claims should be dismissed as
recommended by the Magistrate Judge on the ground that the Court
lacks jurisdiction over the Plaintiff’s § 1983 claim and fails to
state a claim under RICO and under his “Piercing the Corporate
Veil” theory, the Court need not address Defendant’s alternative
argument.
IV.
New Claims
Plaintiff also appears to be attempting to assert new claims
under the Alien Tort Statute, 28 U.S.C. § 1350, and the Torture
Victim Protection Act of 1991, 106 Stat. 73 (note following 28
U.S.C. § 1350) that he did not assert in his Complaint nor in his
Opposition to Defendant’s Motion.
To the extent that Plaintiff
is attempting to assert new claims, these assertions do not
provide a basis to modify the Findings and Recommendation and, in
any event, are inappropriate at this stage as the opportunity to
object to the Magistrate Judge’s Findings and Recommendations is
not an invitation for Plaintiff to have a “second bite at the
apple.”
See Greenhow v. Sec’y of Health & Human Servs., 863 F.2d
633, 638 (9th Cir. Cal. 1988), overruled on other grounds,
United States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir.
1992)(“[A]llowing parties to litigate fully their case before the
4 - ORDER
magistrate and, if unsuccessful, to change their strategy and
present a different theory to the district court would frustrate
the purpose of the Magistrates Act.
We do not believe that the
Magistrates Act was intended to give litigants an opportunity to
run one version of their case past the magistrate, then another
past the district court.”).
See also Chiari v. New York Racing
Ass'n Inc., No. 12–CV–0598, 2013 WL 5234242, at *2 (E.D.N.Y.
2013)(“Although the objections to a report and recommendation of
a pro se party should be accorded leniency, even a pro se party's
objections . . . must be specific and clearly aimed at particular
findings in the magistrate's proposal, such that no party be
allowed a second bite at the apple by simply relitigating a prior
argument”)(citations and quotations omitted).
V.
Dismissal Without Prejudice
The Magistrate Judge recommends the Court dismiss all of
Plaintiff’s claims with prejudice.
A pro se plaintiff's complaint “must be held to less
stringent standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007)(per curiam).
the court must construe pro se filings liberally.
Thus,
If 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.”
5 - ORDER
Ramirez v. Galaza, 334 F.3d 850, 861 (9th
Cir. 2003)(quoting Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir.
2000)).
Accordingly, before the court dismisses a pro se
complaint for failure to state a claim, the court still must
provide the plaintiff with a statement of the complaint's
deficiencies and give the plaintiff leave to amend the complaint
unless it is clear that the deficiencies of the complaint cannot
be cured by amendment.
Rouse v. United States Dep't of State,
548 F.3d 871, 881-82 (9th Cir. 2008).
Although the Magistrate Judge recommends the Court dismiss
Plaintiff’s RICO claim and “Piercing the Corporate Veil” claims
for failure to state a claim, the Magistrate Judge did not
conclude these claims “could not possibly be cured by the
allegation of other facts.”
See Ramirez, 334 F.3d at 861.
Even
though the Court adopts that portion of the Findings and
Recommendation in which the Magistrate Judge recommends
dismissing Plaintiff’s RICO and “Piercing the Corporate Veil”
claims, the Court concludes Plaintiff should be permitted to
amend his Complaint to attempt to cure the deficiencies set out
in the Findings and Recommendation.
Accordingly, the Court dismisses Plaintiff’s RICO and
“Piercing the Corporate Veil” claims without prejudice.
CONCLUSION
The Court ADOPTS that portion of Magistrate Judge Stewart’s
6 - ORDER
Findings and Recommendation (#27) in which she recommends the
Court GRANT Defendant's Motion (#20) to Dismiss Plaintiff’s
§ 1983 claims with prejudice and Plaintiff’s RICO and “Piercing
the Corporate Veil” claims.
The Court, however, DISMISSES
Plaintiff’s RICO and “Piercing the Corporate Veil” claims without
prejudice.
The Court also GRANTS leave to Plaintiff to file an amended
complaint no later than February 24, 2014, only as to his RICO
and “Piercing the Corporate Veil” claims to attempt to cure the
deficiencies set out in the Findings and Recommendations.
If
Plaintiff files an amended complaint, the Magistrate Judge shall
review the amended complaint to determine whether Plaintiff has
cured the deficiencies.
If Plaintiff does not file an amended
complaint and cure the deficiencies by February 24, 2014, the
Court will dismiss this matter with prejudice.
IT IS SO ORDERED.
DATED this 5th day of February, 2014.
/s/ Anna J. Brown
_____________________
ANNA J. BROWN
United States District Judge
7 - ORDER
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