Farmers Insurance Exchange et al v. First Choice Chiropractic & Rehabilitation et al
Filing
157
Opinion and Order - The Court ADOPTS Judge Papak's Findings and Recommendation. Dkt. 145 . Plaintiffs' Motion for Partial Summary Judgment (Dkt. 93 ) is GRANTED, and Defendants' Fourth, Sixth, and Seventh Counterclaims for defamation , tortious interference with contract, and tortious interference with prospective economic advantage are DISMISSED. Defendants' Cross-Motion for Partial Summary Judgment (Dkt. 128 ) is DENIED as it applies to Plaintiffs' Fifth cause of act ion under the UTPA. Defendants' Cross-Motion is GRANTED in part as it applies to: (a) Plaintiffs' claims for violation of RICO and ORICO (Second, Third, and Fourth causes of action), and to the extent Plaintiffs seek recovery on claims for which they have received partial or full reimbursement; (b) Plaintiffs common law fraud claim (First cause of action), to the extent Plaintiffs seek recovery on claims for which they have received partial or full reimbursement; and (c) Plaintiffs 9; unjust enrichment claim (Sixth cause of action), to the extent Plaintiffs seek recovery on claims for which they have received partial or full reimbursement. Plaintiffs' Motion to Strike the Declaration of Robert Dietz, as articulated in its Response to First Choice's Motion for Partial Summary Judgment (Dkt 140 ), is DENIED. Signed on 7/22/2015 by Judge Michael H. Simon. (mja)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
FARMERS INSURANCE EXCHANGE,
MID-CENTURY INSURANCE
COMPANY, TRUCK INSURANCE
EXCHANGE, COAST NATIONAL
INSURANCE COMPANY, 21ST
CENTURY CENTENNIAL INSURANCE
COMPANY, FARMERS INSURANCE
COMPANY OF WASHINGTON,
FARMERS INSURANCE COMPANY OF
OREGON, 21ST CENTURY PACIFIC
INSURANCE COMPANY, and 21ST
CENTURY INSURANCE COMPANY,
Plaintiffs,
v.
FIRST CHOICE CHIROPRACTIC &
REHABILITATION, SUNITA BHASIN,
DAVID PETROFF, KELLY COLEY,
DAVID AVOLIO, JOEL INGERSOLL,
SEAN ROBINS, PARDIS TAJIPOUR,
MARCUS COOL, AARON DAVISON, and
AJAY MOHABEER,
Defendants.
Michael H. Simon, District Judge.
PAGE 1 – OPINION AND ORDER
Case No. 3:13-cv-01883-PK
OPINION AND ORDER
United States Magistrate Paul Papak issued Findings and Recommendation in this case
on June 10, 2015. Dkt. 145. Judge Papak recommended that: (1) Plaintiffs’ Motion for Partial
Summary Judgment (Dkt. 93) be granted and Defendants’ Fourth, Sixth, and Seventh
Counterclaims for defamation, tortious interference with contract, and tortious interference with
prospective economic advantage be dismissed; (2) Defendants’ Cross-Motion for Partial
Summary Judgment (Dkt. 128) be denied as it applies to Plaintiffs’ Fifth cause of action under
the UTPA; (3) Defendants’ Cross-Motion be granted in part as it applies to: (a) Plaintiffs’ claims
for violation of RICO and ORICO (Second, Third, and Fourth causes of action), and to the extent
Plaintiffs seek recovery on claims for which they have received partial or full reimbursement; (b)
Plaintiffs’ common law fraud claim (First cause of action), to the extent Plaintiffs seek recovery
on claims for which they have received partial or full reimbursement; and (c) Plaintiffs’ unjust
enrichment claim (Sixth cause of action), to the extent Plaintiffs seek recovery on claims for
which they have received partial or full reimbursement; (4) Plaintiffs’ Motion to Strike the
Declaration of Robert Dietz, as articulated in its Response to First Choice's Motion for Partial
Summary Judgment (Dkt 140), be denied.
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)(C). 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).
For those portions of a magistrate’s findings and recommendation to which neither party
has objected, the Act does not prescribe any standard of review. See Thomas v. Arn, 474 U.S.
140, 152 (1985) (“There is no indication that Congress, in enacting [the Act], intended to require
PAGE 2 – OPINION AND ORDER
a district judge to review a magistrate’s report[.]”); United States. v. Reyna-Tapia, 328 F.3d
1114, 1121 (9th Cir. 2003) (en banc) (the court must review de novo magistrate’s findings and
recommendation 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 Fed. R. Civ. P. 72(b) recommend that “[w]hen no
timely objection is filed,” the Court review the magistrate’s recommendation for “clear error on
the face of the record.”
Plaintiffs timely filed objections (Dkt. 147) to which Defendants responded (Dkt. 148).
Specifically, Plaintiffs objected to Judge Papak’s findings regarding Plaintiffs’ claims for:
(1) violation of RICO and ORICO (Second, Third, and Fourth causes of action); (2) common law
fraud (First cause of action); and (3) unjust enrichment (Sixth cause of action). The Court has
reviewed de novo Judge Papak’s Findings and Recommendation, as well as Plaintiffs’ objections
and Defendants’ response. The Court agrees with Judge Papak’s reasoning and adopts the
Findings and Recommendation.
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.
The Court ADOPTS Judge Papak’s Findings and Recommendation. Dkt. 145. Plaintiffs’
Motion for Partial Summary Judgment (Dkt. 93) is GRANTED, and Defendants’ Fourth, Sixth,
and Seventh Counterclaims for defamation, tortious interference with contract, and tortious
interference with prospective economic advantage are DISMISSED. Defendants’ Cross-Motion
for Partial Summary Judgment (Dkt. 128) is DENIED as it applies to Plaintiffs’ Fifth cause of
PAGE 3 – OPINION AND ORDER
action under the UTPA. Defendants’ Cross-Motion is GRANTED in part as it applies to: (a)
Plaintiffs’ claims for violation of RICO and ORICO (Second, Third, and Fourth causes of
action), and to the extent Plaintiffs seek recovery on claims for which they have received partial
or full reimbursement; (b) Plaintiffs’ common law fraud claim (First cause of action), to the
extent Plaintiffs seek recovery on claims for which they have received partial or full
reimbursement; and (c) Plaintiffs’ unjust enrichment claim (Sixth cause of action), to the extent
Plaintiffs seek recovery on claims for which they have received partial or full reimbursement.
Plaintiffs’ Motion to Strike the Declaration of Robert Dietz, as articulated in its Response to First
Choice’s Motion for Partial Summary Judgment (Dkt 140), is DENIED.
IT IS SO ORDERED.
DATED this 22nd day of July, 2015.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge
PAGE 4 – OPINION AND ORDER
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