Barber v. Vance et al

Filing 289

ORDER: Adopting Findings and Recommendation 263 . Signed on 3/30/18 by Judge Michael H. Simon. (jy)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

BENJAMIN BARBER,
Plaintiff,

Case No. 3:16-cv-2105-AC
ORDER

v.
MEAGAN VANCE, ELLEN
ROSENBLUM, BRAD AVAKIAN,
KATE BROWN, BEN CANNON, LYNNE
SAXTON in their official capacity,
Defendants.

Michael H. Simon, District Judge.
United States Magistrate Judge John V. Acosta issued Findings and Recommendation in
this case on February 7, 2018. ECF 263. Judge Acosta recommended that the Defendant Meagan
Vance’s motion for attorney’s fees be granted and that she be awarded attorney’s fees in the
requested amount of $6,650.
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.
§ 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).
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For those portions of a magistrate’s findings and recommendations to which neither party
has objected, 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 in the absence of objections no review is required, the Magistrates 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
recommendations for “clear error on the face of the record.”
Plaintiff timely filed a document purporting to object to the Findings and
Recommendation. ECF 273. Plaintiff’s objections, however, challenge the underlying findings in
his state court criminal case and in this Court’s order dismissing his first claim for relief and
granting Ms. Vance’s anti-SLAPP motion. Plaintiff does not challenge specific findings in the
Findings and Recommendation relating to the reasonableness of the proposed fees, or challenge
any particular aspect of Ms. Vance’s motion for attorney’s fees. Accordingly, the Court does not
find that Plaintiff adequately has objected to the Findings and Recommendation.
The Court therefore follows the recommendation of the Advisory Committee and reviews
the Findings and Recommendation for clear error on the face of the record. No such error is
apparent. Moreover, even if the Court did interpret Plaintiff’s filing as sufficiently objecting to
the Findings and Recommendation and conducted a de novo review of the Findings and

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Recommendation, the Court would still agree with and adopt the reasoning and analyses of
Judge Acosta.
CONCLUSION
The Findings and Recommendation (ECF 263) is ADOPTED. Defendant Meagan
Vance’s motion for attorney’s fees (ECF 165) is GRANTED. Attorney’s fees are awarded in the
amount of $6,650.
IT IS SO ORDERED.
DATED this 30th day of March, 2018.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge

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