Sehat v. Progressive Universal Insurance Company

Filing 99

ORDER: The Court ADOPTS as modified Magistrate Judge Acosta's Findings and Recommendation (#56). Until Plaintiff files a Second Amended Complaint and/or Defendants file further dispositive motions, this matter shall proceed only on Plai ntiff's claims against Progressive for breach of contract and Plaintiff's claims against WCSO for excessive force, conditions of confinement, public entity liability, due process, and excessive fine. The Court defers to the Magistrate Judge to set a deadiine for Plaintiff to file a Second Amended Complaint to amend only the conspiracy claim against WCSO and Claims 1-4 and 6-8 against WCSO.See attached 10 page Order for full text. Signed on 08/26/2015 by Judge Anna J. Brown. (bb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

SUBRINA POUPAK SEHAT,
Plaintiff,

3:14-CV-01433-PK
ORDER

v.
PROGRESSIVE UNIVERSAL INSURANCE,
COMPANY OF ILLINOIS, WASHINGTON
COUNTY SHERIFF'S DEPARTMENT, and
CORBRIDGE & KROLL LAW FIRM,
Defendants.

BROWN, Judge.
Magistrate Judge Paul Papak issued Amended Findings and
Recommendation (#56) on February 26, 2015, in which he recommends
this Court
(1)

Grant Defendant Progressive Universal Insurance
Company's Motion (#27-1) to Dismiss and dismiss
Plaintiff's Claims 1-5 against Progressive with
prejudice;

1 - ORDER

(2)

Grant Progressive's Motion (#27-2) to Strike
Plaintiff's conspiracy claim and "additional claims";

(3)

Grant Defendant Washington County Sheriff's
Department's (WCSO) Motion (#33-1) to Dismiss
·Plaintiff's Claims 1-4, 6-8,

9-12, and 14 against WCSO

and dismiss those claims with prejudice;
(4)

Deny with leave to refile WCSO's Motion (#33-2) for
Summary Judgment as to Plaintiff's Claims 5, 13, and
15-17 against WCSO;

(5)

Grant WCSO's Motion (#33-3) to Strike Plaintiff's
conspiracy claim and "additional claims";

(6)

Grant Defendant Corbridge & Kroll Law Firm's Motion
(#39-1) to Dismiss and dismiss Plaintiff's claims

against Corbridge & Kroll with prejudice;
(7)

Grant Corbridge & Kroll's Motion (#39-2) to Strike
Plaintiff's conspiracy claim and "additional claims";

(8)

Deny as moot Plaintiff's Motion (#19) for Permissive
Joinder;

(9)

Deny as moot Plaintiff's Motion (#31) to Strike;

(10)

Deny Plaintiff's Motion (#20) to Stay; and

(11)

Deny Plaintiff's Motion (#21) to Set Aside State Court
Judgment.

On March 23, 2015, this Court issued an Order (#64) granting
Plaintiff's Motions (#60, #63) for Extension of Time to respond

2 - ORDER

to the Findings and Reconunendation.

The Court directed Plaintiff

to file any Objection to the Findings and Reconunendation no later
than April 22, 2015.
On April 28, 2015, this Court issued an Order (#85) granting
Plaintiff's Motion (#80) for Extension of Time to File Objection
to F&R.

The Court directed Plaintiff to file any Objection to

the Findings and Reconunendation no later than May 8, 2015.

The

Court advised Plaintiff that it would not grant Plaintiff any
further extens·ion of time to file Objections.
On May 12, 2015, Plaintiff filed Objections (#92, #93, #94)
to the Findings and Reconunendation.
On May 27, 2015, the Court entered an Order in which it
noted Plaintiff failed to file her Objections by May 8, 2015, as
directed in the Court's April 28, 2015, Order.

The Court,

therefore, struck Plaintiff's Objections and gave Plaintiff leave
to show cause why the Court should consider her Objections timely
filed.
On May 29, 2015, Plaintiff filed an Answer to Order for
Explanation related to her late filed Objections.
On June 1, 2015, the Court entered an Order in which it
concluded Plaintiff had not sufficiently explained her late
filing and, therefore, ordered Plaintiff's Objections to remain

3 - ORDER

stricken 1 and the Findings and Recommendation to be under
advisement.

The matter is now before this Court pursuant to 28

U.S.C. § 636(b)(l)(B) and Federal Rule of Civil Procedure 72(b).
Because no objections to the Magistrate Judge's Findings and
Recommendation were timely filed,

this Court is relieved of its

obligation to review the record de nova.
561 F.3d 930, 932

(9th Cir. 2009).

See Dawson v. Marshall,

See also United States v.

Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en bane).
Having reviewed the legal principles de nova, the Court,
adopts the Findings and Recommendation as modified herein.

DEFENDANTS' MOTIONS (#27-1, #33-1, #39) TO DISMISS
PLAINTIFF'S CONSPIRACY CLAIM
All Defendants moved to dismiss Plaintiff's conspiracy claim
for failure to state a claim.

The Magistrate Judge recommended

granting Defendants' Motions to Dismiss Plaintiff's conspiracy
claim for failure to state a claim and dismissing Plaintiff's
conspiracy

clai~

with prejudice.

The Ninth Circuit, however, 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,'
be granted more liberally to pro se plaintiffs."

1

and should

Alcala v. Rios,

Although the Court struck Plaintiff's untimely Objections,
the Court, nevertheless, reviewed the materials and finds the
Court would not have reached a different result even if those
materials had been considered.
4 - ORDER

434 F. App'x 668,

670 (9th Cir. 2011) (quoting Ramirez v. Galaza,

334 F.3d 850, 861 (9'h Cir. 2003)).

Plaintiff is proceeding pro

se, and it is unclear as to whether Plaintiff could possibly cure

her failure to state a claim for conspiracy by alleging other
facts.

Accordingly, although the Court adopts the Magistrate

Judge's recommendation to dismiss Plaintiff's conspiracy claim,
the Court dismisses Plaintiff's conspiracy claim without
prejudice and grants Plaintiff leave to amend to file a Second
Amended Complaint to cure the deficiencies of that claim as set
out in the Findings and Recommendation.

DEFENDANT WCSO'S MOTION (#33-1) TO DISMISS
PLAINTIFF'S STATE TORT CLAIMS 1-4, 6-8
As noted, the Magistrate Judge recommends the Court dismiss
with prejudice Plaintiff's Claims 1-4 and 6-8 against WCSO for
failure to plead compliance with the tort claims notice
requirement of the Oregon Tort Claims Act (OTCA), Oregon Revised
Statute § 30.275.

Although it is clear that Plaintiff has not.

alleged facts sufficient to establish compliance with the notice
requirement of the OTCA as set out in the Findings and
Recommendation, it is not clear that Plaintiff could not cure her
failure.

The Court, therefore, declines to dismiss Plaintiff's

Claims 1-4 and 6-8 against WCSO with prejudice.

See, e.g.

Rodriguez v. Central Sch. Dist. 13J, No. 12-CV-01223-HU, 2012 WL

6756945, at *4
5 - ORDER

(D. Or. Nov. 14, 2012) ("The Oregon Supreme Court

has held that the pleading and proof of notice sufficient to
satisfy the requirements of O.R.S. 30.275 is a mandatory
requirement and a condition precedent to recovery under the
Oregon Tort Claims Act.

Accordingly, the School's motion to

dismiss Rodriguez's Second,

Fourth, and Sixth Claims for Relief

should be granted, and those claims should be dismissed without

prejudice, allowing Rodriguez to take appropriate steps to amend
her Complaint to allege the giving of proper notice under the
OTCA. ")(emphasis in original).
Accordingly, the Court adopts the Magistrate Judge's
recommendation to dismiss Plaintiff's Claims 1-4 and 6-8 for
failure to allege facts sufficient to establish compliance with
the notice requirement of the OTCA.

The Court, however,

dismisses Plaintiff's Claims 1-4 and 6-8 against WCSO without
prejudice and grants Plaintiff leave to amend to file a Second
Amended Complaint to the extent that Plaintiff can allege facts
to establish that she gave notice of Claims 1-4 and 6-8 to WCSO
within 180 days of the alleged loss or injury.

DEFENDANT CORBRIDGE & KROLL'S MOTION (#39) TO DISMISS
The Magistrate Judge recommended the Court dismiss with
prejudice Plaintiff's Claims 1-11 against Corbridge & Kroll for
lack of subject-matter jurisdiction.

Plaintiff has failed to

establish this.Court has subject-matter jurisdiction over

6 - ORDER

Plaintiff's Claims 1-11 against Corbridge & Kroll.

The Ninth

Circuit, however, had held "[o]rdinarily a case dismissed for
lack of subject matter jurisdiction should be dismissed without
prejudice so that a plaintiff may reassert his claims in a
competent court."
(9th Cir.

1988).

337 F. App'x 682,

Frigard v. United States, 862 F.2d 201, 204
See also Craan v. U.S. Army Corps of Engineers,

683 (9th Cir. 2009).

When another court has

the power to hear the case, a court should dismiss a plaintiff's
claims without prejudice.

Id.

Here, as noted in the Findings and Recommendation, the
Oregon state courts have jurisdiction over Plaintiff's Claims 111 against Corbridge & Kroll.

Accordingly, the Court dismisses

Plaintiff's Claims 1-11 against Corbridge & Kroll without
prejudice.

REMAINDER OF THE FINDINGS AND RECOMMENDATION

As to the remainder of the Findings and Recommendation, the
Court has reviewed the legal principles de nova and does not find
any error or basis for modification of the Findings and
Recommendation.

The Court, therefore, adopts the remainder of

the Findings and Recommendation without modification.

CONCLUSION

The Court ADOPTS as modified Magistrate Judge Acosta's
7 - ORDER

Findings and Recommendation (#56).
(1)

Accordingly, the Court

GRANTS Progressive's Motion (#27-1) to Dismiss and
DISMISSES with prejudice Plaintiff's Claims 1-5 against
Progressive and Plaintiff's "additional claims• against
Progressive;

(2)

GRANTS Progressive's Motion (#27-2) to Strike
Plaintiff's conspiracy claim and STRIKES that claim
with leave to amend to cure the deficiencies set out in
the Findings and Recommendation;

(3)

GRANTS WCSO's Motion (#33-1) to Dismiss Plaintiff's
Claims 1-4, 6-8, 9-12, 14, and "additional claims•
against WCSO, DISMISSES with prejudice Plaintiff's
Claims 9-12, 14, and "additional claims,• and DISMISSES
without prejudice Plaintiff's claims 1-4 and 6-8 with
leave to amend to the extent that Plaintiff can allege
facts to establish she gave notice to WCSO of Claims 14 and 6-8 within 180 days of the alleged loss or
injury;

(4)

DENIES WCSO's Motion (#33-2) for Summary Judgment as to
Plaintiff's Claims 5, 13, and 15-17 against WCSO with
leave to refile as set out in the Findings and
Recommendation;

(5)

GRANTS WCSO's Motion (#33-3) to Strike Plaintiff's
conspiracy claim and STRIKES that claim with leave to

8 - ORDER

amend to cure the deficiencies set out in the Findings
and Recommendation;
(6)

GRANTS Defendant Corbridge & Kroll's Motion (#39-1) to
Dismiss, DISMISSES without prejudice Plaintiff's Claims
1-11 against Corbridge

&

Kroll without leave to. amend,

and DISMISSES with prejudice Plaintiff's "additional
claimsn against Corbridge & Kroll;
(7)

GRANTS Corbridge & Kroll's Motion (#39-2) to Strike
Plaintiff's conspiracy claim and STRIKES that claim
with leave to amend to cure the deficiencies set out in
the Findings and Recommendation;

(8)

DENIES as moot Plaintiff's Motion (#19) for Permissive
Joinder;

(9)

DENIES as moot Plaintiff's Motion (#31) to Strike;

(10) DENIES Plaintiff's Motion (#20) to Stay; and
(11) DENIES Plaintiff's Motion (#21) to Set Aside State
Court Judgment.
Accordingly, until Plaintiff files a Second Amended
Complaint and/or Defendants file further dispositive motions,
this matter shall proceed only on Plaintiff's claims against
Progressive for breach of contract and Plaintiff's claims against
WCSO for excessive force,

conditions of confinement, public-

entity liability, due process, and excessive fine.
Because this matter is proceeding before the Magistrate

9 - ORDER

' '

'

'

Judge, the Court defers to the Magistrate ~udge to set a deadiine
for Plaintiff to file a Second Amended Complaint to amend only
the conspiracy claim against WCSO and Claims 1-4 and 6-8 against
WCSO.
IT IS SO ORDERED.
DATED this 26th day of August, 2015.

United States District Judge

10 - ORDER