Bullseye Glass Co. v. Brown et al

Filing 70

ORDER - The Court ADOPTS IN PART and DECLINES TO ADOPT IN PART the Findings & Recommendation (ECF 66 ) consistent with this Order. Plaintiff's Motion for Leave to File Amended Complaint (ECF 57 ) is DENIED. Signed on 8/9/2019 by Judge Michael H. Simon. (mja)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

BULLSEYE GLASS CO.,
Plaintiff,

Case No. 3:17-cv-1970-JR
ORDER

v.
GOVERNOR KATE BROWN, et al.,
Defendants.

Michael H. Simon, District Judge.
United States Magistrate Judge Jolie A. Russo issued Findings and Recommendation in
this case on June 26, 2019. ECF 66. Magistrate Judge Russo recommended that Plaintiff’s
Motion for Leave to File Amended Complaint (ECF 57) be denied.
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 judge’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 judge’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 judge’s findings and recommendations if objection is made, “but
not otherwise”). Although in the absence of objections no review is required, 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
judge’s recommendations for “clear error on the face of the record.”
Plaintiff timely filed an objection (ECF 68), to which Defendants responded. ECF 69.
Plaintiff objects to the portion of Magistrate Judge Russo’s recommendation finding that
Plaintiff’s proposed amended complaint does not cure the deficiencies noted in this Court’s
January 2, 2019 Order. Plaintiff argues that its proposed amendment does contain specific
allegations of fact that plausibly support its characterization of intentional, deliberate, or
knowing falsehoods on the part of Defendants that could be sufficient to establish a substantive
due process claim.
STANDARDS
The Ninth Circuit has recognized that under Rule 15(a), “leave to amend shall be freely
given when justice so requires,” and “this policy is to be applied with extreme liberality.” Owens
v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001). But a complaint, or a
proposed amended complaint, must still contain factual allegations to “plausibly suggest an
entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the
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expense of discovery and continued litigation.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir.
2011). “A claim has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). “The
plausibility standard is not akin to a probability requirement, but it asks for more than a sheer
possibility that a defendant has acted unlawfully.” Mashiri v. Epstein Grinnell & Howell, 845
F.3d 984, 988 (9th Cir. 2017) (quotation marks omitted).
DISCUSSION
The Court does not adopt the portion of the recommendation finding that even if
Defendants “falsely manufacture[d] a [public health] crisis,” ECF 66 at 10, Plaintiff’s proposed
amendment should not be allowed because Plaintiff has not pleaded specific facts explaining the
Defendants’ motivation for targeting Plaintiff as part of that manufactured crisis. The Court
agrees with Plaintiff that in certain circumstances, facts suggesting knowingly false justifications
can support a claim for a substantive due process violation without a need to show the motivation
behind the misconduct.
But the Court agrees with the Magistrate Judge’s overall conclusion, because Plaintiff has
not pleaded additional factual content that plausibly shows that Defendants falsely manufactured
a public health crisis. Nor has Plaintiff otherwise pleaded facts that plausibly suggest that
Defendants engaged in intentional, deliberate, or knowing falsehoods. Plaintiff argues that the
Magistrate Judge did not consider the fact that Defendants formally established an “Incident
Management Team” that shared decision-making authority, and therefore that the actions of
Defendants were “deliberate and concerted wrongful action.” While the creation of such a team
may plausibly show concerted action, it does not plausibly show wrongful action.

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Plaintiff has also pleaded facts that plausibly suggest that Defendants knew that there
were problems with the reliability of the DEQ air monitoring of Bullseye. But Plaintiff has not
pleaded facts that plausibly show that this air monitoring, nor the other data at issue in this case,
was a “pretextual” rationale for agency action that was sufficient to support an inference of
“arbitrary or even malicious conduct.” Lockary v. Kayfetz, 917 F.2d 1150, 1155-56 (9th Cir.
1990).
Plaintiff has attempted to state a claim for a substantive due process violation based on
abusive executive action. The Supreme Court has emphasized “that only the most egregious
official conduct can be said to be ‘arbitrary in the constitutional sense,’” in such cases. Cty. of
Sacramento v. Lewis, 523 U.S. 833, 846 (1998) (quoting Collins v. Harker Heights, Tex., 503
U.S. 115, 129 (1992). The “cognizable level of executive abuse of power [is] that which shocks
the conscience.” Id. Plaintiff’s proposed amended complaint does not state a facially plausible
claim for a substantive due process violation, because it does not plead “factual content that
allows the court to draw the reasonable inference” that Defendants are liable for such a
substantive due process violation. Iqbal, 556 U.S. at 678.
CONCLUSION
The Court ADOPTS IN PART and DECLINES TO ADOPT IN PART the Findings &
Recommendation (ECF 66) consistent with this Order. Plaintiff’s Motion for Leave to File
Amended Complaint (ECF 57) is DENIED.
IT IS SO ORDERED.
DATED this 9th day of August, 2019.

/s/ Michael H. Simon
Michael H. Simon
United States District Judge
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