Makaneole v. Solarworld Industries America, Inc. et al

Filing 51

ORDER: The Court ADOPTS as modified Magistrate Judge Papaks Findings and Recommendation 43 . Accordingly, the Court: 1. DENIES Kelly Services Motion 7 to Dismiss; 2. GRANTS Kelly Services Alternative Motion 7 for More Definite Statement pursuant to Rule 12(e); 3. GRANTS Randstad Professionals Motion 10 to Dismiss as to Plaintiffs First, Second, and Third Claims; 4. DENIES Randstad Professionals Motion 10 to Dismissas to Plaintiffs request for attorneys fees; 5. DISMISSES withou t prejudice Plaintiffs First, Second, and Third Claims; and 6. GRANTS Plaintiff leave to file an Amended Complaint no later than April 6, 2015, to cure the deficiencies set out in the Findings and Recommendation. Signed on 03/09/2015 by Judge Anna J. Brown. (bb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

MICHAEL MAKANEOLE, individually
and on behalf of all similarly
situated,

3:14-CV-01528-PK
ORDER

Plaintiff,
v.
SOLARWORLD INDUSTRIES AMERICA,
INC.; SOLARWORLD INDUSTRIES
AMERICA, LP; SOLARWORLD
INDUSTRIES SERVICES, LLC;
SOLARWORLD POWER PROJECTS,
INC., RANDSTAD PROFESSIONALS US,
LP, and KELLY SERVICES, INC.,
Defendants.

BROWN, Judge.
Magistrate Judge Paul Papak issued Findings and
Recommendation (#43) on December 8, 2014, in which he recommends
the Court deny the Motion (#7) to Dismiss of Defendant Kelly
1 - ORDER

Services, Inc.; grant Kelly Service’s Alternative Motion (#7) for
More Definite Statement pursuant to Rule 12(e); grant in part and
deny in part the Motion (#10) to Dismiss of Defendant Randstad
Professionals U.S., LP; dismiss with prejudice Plaintiff’s Third
Claim as to all Defendants; dismiss without prejudice Plaintiff’s
First and Second Claims as to all Defendants; and grant Plaintiff
thirty days to file an Amended Complaint consistent with the
Findings and Recommendation.
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).
I.

Portions of the Findings and Recommendation to which
Plaintiff does not object.
Plaintiff does not object to any part of the Findings and

Recommendation other than the Magistrate Judge’s recommendation
to dismiss with prejudice Plaintiff’s Third Claim.
When a party does not object to portions of a Magistrate
Judge’s Findings and Recommendation, this Court is relieved of
its obligation to review the record de novo as to those portions
of the Findings and Recommendation.
F.3d 930, 932 (9th Cir. 2009).

See Dawson v. Marshall, 561

See also United States v. Reyna-

Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)(en banc).

Having

reviewed the legal principles de novo as to those portions of the
Findings and Recommendation to which Plaintiff does not object,
the Court does not find any error.
2 - ORDER

II.

Portions of the Findings and Recommendation to which
Plaintiff objects.
As noted, Plaintiff objects only to the Magistrate Judge’s

recommendation to dismiss with prejudice Plaintiff’s Third Claim.
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).
The Magistrate Judge notes in the Findings and
Recommendation that Plaintiff's Third Claim for Defendants'
failure to pay wages on termination in violation of Oregon
Revised Statute § 652.140 is based on the same factual
allegations as those underlying Plaintiff’s Second Claim for
Defendants' failure to pay overtime in violation of Oregon
Revised Statute § 653.261.

The Magistrate Judge, however, finds

under Oregon law that a plaintiff may not seek two penalties for
violations of wage-and-hour laws based on the same underlying
facts.

See Hurger v. Hyatt Lake Resort, Inc., 170 Or. App. 320,

323 (2001).

See also Cornier v. Paul Tulacz, DVM PC, 176 Or.

App. 245, 247 (2001).

Because the Magistrate Judge concludes

Plaintiff seeks two penalties based on the same set of facts, he
recommends the Court dismiss Plaintiff’s Third Claim with
prejudice.
3 - ORDER

Plaintiff asserts in his Objections that the Magistrate
Judge erred when he recommended the Court dismiss Plaintiff’s
Third Claim with prejudice because (1) Oregon courts permit
recovery of a double penalty based on facts that allege more than
one wage-and-hour law violation and/or (2) in this putative class
action there may be plaintiffs who have claims for regular wages
that remain unpaid even though their employment has ended, but
who do not have overtime claims.

According to Plaintiff, if the

Court dismisses Plaintiff’s Third Claim with prejudice, the class
members who only have claims for regular wages that remain unpaid
after termination would be unable to obtain any penalty because
they would be ineligible to recover a penalty for Defendants’
failure to pay overtime wages and they would be foreclosed from
seeking a penalty for Defendants’ failure to pay regular wages on
termination.
The Court disagrees with Plaintiff’s first assertion related
to an award of double penalties and concludes the Magistrate
Judge did not err when he found Plaintiff seeks penalties in his
Second Claim for Defendants’ alleged failure to pay Plaintiff
overtime wages upon termination that are duplicative of the
penalties Plaintiff seeks in his Third Claim for Defendants’
alleged failure to pay overtime wages during employment.

The

Court also concludes the Magistrate Judge did not err when he
found Plaintiff is barred from seeking such duplicative penalties

4 - ORDER

by Hurger and Cornier.
Plaintiff’s second assertion, however, is well-taken.
Federal Rule of Civil Procedure 8(d)(2) provides:

“A party may

set out 2 or more statements of a claim or defense alternatively
or hypothetically, either in a single count or defense or in
separate ones.

If a party makes alternative statements, the

pleading is sufficient if any one of them is sufficient."
Accordingly, Plaintiff is permitted to plead claims in the
alternative and it is premature to dismiss Plaintiff’s Third
Claim with prejudice.

The Court, therefore, declines to adopt

that portion of the Findings and Recommendation in which the
Magistrate Judge recommends the Court dismiss Plaintiff’s Third
Claim with prejudice.

The Court instead dismisses Plaintiff’s

Third Claim without prejudice to allow Plaintiff to allege his
Third Claim in the alternative.

CONCLUSION
The Court ADOPTS as modified Magistrate Judge Papak’s
Findings and Recommendation (#43).

Accordingly, the Court:

1.

DENIES Kelly Services’ Motion (#7) to Dismiss;

2.

GRANTS Kelly Services’ Alternative Motion (#7) for More
Definite Statement pursuant to Rule 12(e);

3.

GRANTS Randstad Professionals’ Motion (#10) to Dismiss
as to Plaintiff’s First, Second, and Third Claims;

5 - ORDER

4.

DENIES Randstad Professionals’ Motion (#10) to Dismiss
as to Plaintiff’s request for attorneys’ fees;

5.

DISMISSES without prejudice Plaintiff’s First, Second,
and Third Claims; and

6.

GRANTS Plaintiff leave to file an Amended Complaint no
later than April 6, 2015, to cure the deficiencies set
out in the Findings and Recommendation.

IT IS SO ORDERED.
DATED this 9th day of March, 2015.

/s/ Anna J. Brown

ANNA J. BROWN
United States District Judge

6 - ORDER