Smith v. United Parcel Service Inc.

Filing 42

ORDER - The Court ADOPTS Judge Papak's Findings and Recommendation,Dkt. 39 . Smith's Motion to Transfer Venue (Dkt. 26 ) is granted. Smith's Motion to Stay (Dkt. 27 ) and UPS's Motion to Dismiss (Dkt. 21 ) are denied a s moot. The Clerk of the Court is directed to transfer this action to the United States District Court for the District of Colorado andto send a copy of this Order and Judge Papak's Findings and Recommendation to that court. Signed 1/25/2016 by Judge Michael H. Simon. (mja)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

MATTHEW ALAN SMITH,
Plaintiff,

Case No. 3:14-cv-01681-PK
ORDER ADOPTING FINDINGS AND
RECOMMENDATION

v.
UNITED PARCEL SEVICE INC.,
Defendant.
Matthew Alan Smith, P.O. Box 350217, Westminster, CO 80035, pro se.
Calvin L. Keith and Joanna T. Perini-Abbott, PERKINS COIE, LLP, 1120 NW Couch Street,
10th Floor, Portland, OR 97209. Of Attorneys for Defendant.
Michael H. Simon, District Judge.
United States Magistrate Judge Paul Papak issued Findings and Recommendation in this
case on December 28, 2015. Dkt. 39. Judge Papak recommended that this Court grant Plaintiff
Matthew Alan Smith’s (“Plaintiff” or “Smith”) Motion to Transfer Venue (Dkt. 26), deny as
moot Smith’s Motion to Stay (Dkt. 27), and also deny as moot Defendant United Parcel Service
Inc.’s (“Defendant” or “UPS”) Motion to Dismiss (Dkt. 21). No party has filed objections.
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.
PAGE 1 – OPINION AND ORDER

§ 636(b)(1). 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).
If no party objects, 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 a district judge to review a magistrate’s report to which no objections are filed.”);
United States. v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (holding that the
court must review de novo magistrate’s findings and recommendations if objection is made, “but
not otherwise”).
Although review is not required in the absence of objections, the 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 findings
and recommendations for “clear error on the face of the record.”
No party having made objections, this Court follows the recommendation of the Advisory
Committee and reviews Judge Papak’s Findings and Recommendation for clear error on the face
of the record. No such error is apparent. Although the decision does not rest on these grounds,
the Court notes that Smith asserts that he will be able to comply with the Order to Show Cause
(Dkt. 22-11) issued by the Tenth Circuit because an attorney has agreed to represent him. See
Dkt. 36 at 1. Accordingly, the Court ADOPTS Judge Papak’s Findings and Recommendation,
Dkt. 39. Smith’s Motion to Transfer Venue (Dkt. 26) is granted. Smith’s Motion to Stay
(Dkt. 27) and UPS’s Motion to Dismiss (Dkt. 21) are denied as moot. The Clerk of the Court is

PAGE 2 – OPINION AND ORDER

directed to transfer this action to the United States District Court for the District of Colorado and
to send a copy of this Order and Judge Papak’s Findings and Recommendation to that court.
IT IS SO ORDERED.
DATED this 25th day of January, 2016.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge

PAGE 3 – OPINION AND ORDER