Kaiser et al v. Cascade Capital LLC et al

Filing 86

OPINION and ORDER - Because Plaintiffs' claims are now STAYED pending arbitration, the matters raised in Defendants' Motion to Dismiss 19 are moot. The Court, therefore, DECLINES TO ADOPT the Magistrate Judge's F&R 71 and DENIES De fendants' Motion to Dismiss (19] as moot with leave to renew in the event that the arbitrator concludes Plaintiffs' claims are not subject toarbitration. IT IS SO ORDERED. DATED this 31st day of August, 2017. Signed on 8/31/17 by Chief United States District Judge Michael W. Mosman. (peg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION

MICHAEL KAISER and MARGARET
J. LOEWEN, on behaH of themselves and
Others similarly situated,

No. 3:16-cv-00744-AC
OPINION AND ORDER

Plaintiffs,

v.

CASCADE CAPITAL, LLC, and
GORDON AYLWORTH & TAMI, P.C.,
Defendants.

MOSMAN,J.,
On May 25, 2017, Magistrate Judge John V. Acosta issued his Findings and
Recommendation [71], in which he recommended that the Court (1) deny Defendants' Motion to
Dismiss [19] pursuant to Federal Rule of Civil Procedure 12(b)(l) for lack of subject-matter
jurisdiction and (2) grant in part and deny in part Defendants' Motion pursuant to Rule 12(b)(6)
for failure to state a claim.
In particular, the Magistrate Judge recommended the Court grant Defendants' Rule
12(b)(6) Motion as to Plaintiffs claims under the Fair Debt Collection Practices Act (FDCPA)
§§ 1692d, 1692e(5), 1692e(9), and 1692f(l); as well as Plaintiffs' common-law intentional
infliction of emotional distress claim. The Magistrate Judge further recommended the Cami deny
Defendants' Rule 12(b)(6) Motion as to Plaintiffs' claims under the FDCPA
1 - OPINION AND ORDER

§§ 1692e, 1692e(2); 1692e(10); 1692f. Moreover, the Magistrate Judge recommended the Court
find that 15 U.S.C. §§ 1692-1692(p) are not unconstitutionally vague, deny Defendants' Motion
to Strike paragraph 18 ofF'irst Amended Complaint, and grant Defendants' Motion to Make
More Definite and Certain. 1
On June 28, 2017, Plaintiffs filed Objections to the Magistrate Judge's F&R [80], and, on
June 30, 2017, Defendants filed their own Amended Objections [81] to the F&R. 2 Defendants
responded [82] to Plaintiffs Objections and, in turn, Plaintiffa responded [83] to Defendants'
Objections.
DISCUSSION
The magistrate judge makes only reconnnendations to the Court, to which any party may
file written objections. The Court is not bound by the recommendations of the magistrate judge,
but retains responsibility for making the final determination. 1be Com\ is generally required to
make a de nova determination regarding those portions of the report or specified findings or
recommendations as to which an objection is made. 28 U.S.C. § 636(b)(l)(C). However, the
Court is not required to review, de novo or under any other standard, the factual or legal
conclusions of the magistrate judge as to those portions of the F&R to which no objections are
addressed. See Thomas v. Arn, 474 U.S. 140, 149 (1985); United States v. Reyna-Tapia, 328 F.3d
1114, 1121 (9th Cir. 2003). While the level of scrutiny with which the Court is required to
review the F&R depends on whether or not objections have been filed, in either case, the Comi is
free to accept, reject, or modify any part of the F&R. 28 U.S.C. § 636(b)(l)(C).

1

Defendants made their Motion to Strike paragraph 18 of First Amended Complaint and Motion
to Make More Definite and Certain in the course of briefing on the Motion to Dismiss.
2
Defendants originally filed their Objections [78] on June 28, 2017. Those Objections were
superseded by Defendants' Amended Objections.
2 - OPINION AND ORDER

Since the Magistrate Judge issued the F&R and the parties filed their Objections,
however, this Court adopted the Magistrate Judge's March 27, 2017, Findings and
Recommendation [56] in which the Magistrate Judge recommended the Court grant Defendants'
Motion to Compel Arbitration [16] on the basis that an arbitrator must first determine whether
the claims raised in Plaintiffs' First Amended Complaint are subject to arbitration. See Opinion
and Order [85] (Jul. 12, 2017). The Court, therefore, stayed Plaintiffs' claims pending
completion of the arbitration.
Because Plaintiffs' claims are now stayed pending arbitration, the matters raised in
Defendants' Motion to Dismiss [19] are moot. The Court, therefore, DECLINES TO ADOPT the
Magistrate Judge's F&R [71] and DENIES Defendants' Motion to Dismiss (19] as moot with
leave to renew in the event that the arbitrator concludes Plaintiffs' claims are not subject to
arbitration.
IT IS SO ORDERED.
DATED this ~-day of August, 2017.

3 - OPINION AND ORDER