Walters v. Vitamin Shoppe Industries, Inc.

Filing 49

ORDER: The Court ADOPTS Magistrate Judge Papaks Findings andRecommendation 44 and, therefore, GRANTS Defendants Motion to Dismiss as to each of Plaintiffs claims, DENIES as moot that portion of Defendants Motion in which Defendant seeks to strike Plaintiffs class allegations, and DISMISSES with prejudice Plaintiffs Second Amended Complaint 21 in its entirety. Signed on 06/25/2015 by Judge Anna J. Brown. (bb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

LEE WALTERS, M.D.,
Plaintiff,

3:14-cv-01173-PK
ORDER

v.
VITAMIN SHOPPE INDUSTRIES, INC.,
a Delaware corporation,
Defendant.

BROWN, Judge.
Magistrate Judge Paul Papak issued Findings and
Recommendation (#44) on May 13, 2015, in which he recommends this
Court grant Defendant’s Motion to Dismiss as to each of
Plaintiff’s claims, deny as moot that portion of Defendant’s
Motion in which Defendant seeks to strike Plaintiff’s class
allegations, and dismiss Plaintiff’s Second Amended Complaint

1 - ORDER

(#21) in its entirety with prejudice.

The Magistrate Judge also

recommends this Court enter judgment in favor of Defendant and
dismiss Plaintiff’s claims in their entirety.

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).
Plaintiff filed timely Objections to Magistrate Judge
Papak’s Findings and Recommendation in which Plaintiff contends
the Magistrate Judge erred when he found the contract that was
formed between Plaintiff and Defendant when Plaintiff purchased
the vitamins at issue was not unconscionable because Defendant
did not violate Federal Department of Agriculture (FDA) labeling
rules.

In the alternative, Plaintiff contends this matter should

be stayed pending a determination by the FDA regarding the
sufficiency of the labeling on the vitamin packages at issue.
This Court has carefully considered Plaintiff’s Objections
and concludes Plaintiff’s Objections 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

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not find any error in the Magistrate Judge's Findings and
Recommendation.

CONCLUSION
The Court ADOPTS Magistrate Judge Papak’s Findings and
Recommendation (#44) and, therefore, GRANTS Defendant’s Motion to
Dismiss as to each of Plaintiff’s claims, DENIES as moot that
portion of Defendant’s Motion in which Defendant seeks to strike
Plaintiff’s class allegations, and DISMISSES with prejudice
Plaintiff’s Second Amended Complaint (#21) in its entirety.
IT IS SO ORDERED.
DATED this 25th day of June, 2015.

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

3 - ORDER