Potter v. International Business Machine Corporation et al
ORDER - No party having made objections, this Court follows the recommendation of the Advisory Committee and reviews Judge Acosta's Findings and Recommendation for clear error on the face of the record. No such error is apparent. Accordingly, the Court ADOPTS Judge Acosta's Findings and Recommendation, ECF 28 . Plaintiff's Motion to Remand (ECF 11 ) is GRANTED and her request for attorney fees is DENIED. Ordered by Judge Michael H. Simon. (mja)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
Case No. 3:17-cv-1409-AC
INTERNATIONAL BUSINESS MACHINE
CORPORATION (dba IBM, INC.), a New
York corporation, SETERUS, INC., (fka
KYANITE FINANCIAL BUSINESS
SERVICES, INC.), a Delaware corporation,
and MICHAEL PERRY, an individual,
SHANNON STOCK, an individual, and
AMANDA LOWE, an individual.
Michael H. Simon, District Judge.
United States Magistrate Judge John Acosta issued Findings and Recommendation in this
case on March 14th, 2018. ECF 28. Judge Acosta recommended that Plaintiff’s motion to
remand be granted but that her request for attorney fees and costs be denied. No party has filed
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.
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§ 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 Acosta’s Findings and Recommendation for clear error on the
face of the record. No such error is apparent. Accordingly, the Court ADOPTS Judge Acosta’s
Findings and Recommendation, ECF 28. Plaintiff’s Motion to Remand (ECF 11) is GRANTED
and her request for attorney fees is DENIED.
IT IS SO ORDERED.
DATED this 13th day of April 2018.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge
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