Austin v. Union Bond & Trust Co. et al

Filing 42

ORDER: The Court ADOPTS Magistrate Judge Stewart's Findings and Recommendation 38 , GRANTS Defendants' Motion 25 to Dismiss, and DISMISSES Plaintiff's claims as follows: (1) The Court dismisses all of Plaintiff's cla ims against Principal Life Insurance Company (Second Claim and portions of the Third and Fourth Claims) with prejudice; (2) The Court dismisses the portions of Plaintiff's First, Third, and Fourth Claims against Union and Morley as to setting the Crediting Rates and retaining the spread in the Principal Synthetic Investment Contract (SIC) with prejudice; and (3) The Court dismisses the remaining portions of Plaintiff's First, Third, and Fourth Claims against Union without prejudice . The Court GRANTS Plaintiff leave to file an Amended Complaint to cure the deficiencies noted in the Findings and Recommendation with respect to Plaintiff's First, Third, and Fourth Claims against Union no later than January 14, 2015. Signed on 12/23/2014 by Judge Anna J. Brown. See attached Order. (bb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

KERRY D. AUSTIN, on behalf of
himself and all others
similarly situated,

3:14-CV-00706-ST
ORDER

Plaintiff,

v.
UNION BOND & TRUST CO.,
MORLEY CAPITAL MANAGEMENT,
and PRINCIPAL LIFE INSURANCE
.COMPANY,
Defendants.

BROWN, Judge.
Magistrate Judge Janice M. Stewart issued Findings and
Recommendation (#38) on November 10, 2014, in which she
recommends the Court grant Defendants' Motion (#25) to Dismiss as
follows:

(1) dismiss all of Plaintiff's claims against Defendant

Principal Life Insurance Company (Second Claim and portions of
the Third and Fourth Claims) with prejudice;
1 - ORDER

(2) dismiss the

portions of Plaintiff's First, Third, and Fourth Claims against
Defendants Union Bond & Trust Company and Morley Capital
Management as to setting the Crediting Rates and retaining the
spread in the Principal Synthetic Investment Contract (SIC) with
prejudice; and (3) dismiss the remaining portions of Plaintiff's
First, Third, and Fourth Claims against Union and Morley without
prejudice and with leave to replead.

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).

F.3d 930, 932

See also Dawson v. Marshall, 561

(9'h Cir. 2009); United States v. Reyna-Tapia, 328

F.3d 1114, 1121 (9th Cir. 2003) (en bane).
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.

CONCLUSION
The Court ADOPTS Magistrate Judge Stewart's Findings and
2 - ORDER

Recommendation (#38), GRANTS Defendants' Motion (#25) to Dismiss,
and DISMISSES Plaintiff's claims as follows:
(1)

The Court dismisses all of Plaintiff's claims against
Principal Life Insurance Company (Second Claim and
portions of the Third and Fourth Claims) with
prejudice;

(2)

The Court dismisses the pbrtions of Plaintiff's First,
Third, and Fourth Claims against Union and Morley as to
setting the Crediting Rates and retaining the spread in
the Principal Synthetic Investment Contract (SIC) with
prejudice; and

(3)

The Court dismisses the remaining portions of
Plaintiff's First, Third, and Fourth Claims against
Union without prejudice.

The Court GRANTS Plaintiff leave to file an Amended
Complaint to cure the deficiencies noted in the Findings and
Recommendation with respect to Plaintiff's First, Third, and
Fourth Claims against Union no later than January 14, 2015.
IT IS SO ORDERED.
DATED this 23'd day of December, 2014.

United States District Judge
3 - ORDER