Daugherty v. Presidio Networked Solutions Group, LLC
Filing
25
OPINION AND ORDER: Upon review, I agree with Judge Acosta's recommendation and I ADOPT the F&R 19 as my own opinion. Defendant's Motion to Dismiss 5 is DENIED on claims one, four, and five, and GRANTED on claim three. Signed on 1/23/2019 by Judge Michael W. Mosman. (kms)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
KENNETH DAUGHERTY,
Plaintiff,
No. 3:18-cv-00298-AC
v.
OPINION AND ORDER
PRESIDIO NETWORKED SOLUTIONS
GROUP,LLC,
Defendant.
MOSMAN,J.,
On November 27, 2018, Magistrate Judge John V. Acosta issued his Findings and
Recommendation (F&R) [19], recommending that Defendant's Motion to Dismiss [5] be
GRANTED in part and DENIED in part. Plaintiff filed Objections to the F&R [23] and
Defendant filed a Response to Objections [24].
DISCUSSION
The magistrate judge makes only recommendations to the comi, 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. The comi is generally required to
1 - OPINION AND ORDER
make a de novo dete1mination regarding those portions of the report or specified findings or
recommendation as to which an objection is made. 28 U.S.C. § 636(b)(l)(C). However, the
comi 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 under which I am required to
review the F&R depends on whether or not objections have been filed, in either case, I am free to
accept, reject, or modify any part of the F&R. 28 U.S.C. § 636(b)(l)(C).
Plaintiff sues for wrongful te1mination, unpaid wages, commission, and stocks. The F &R
recommends that I grant in paii and deny in paii Defendant's Motion to Dismiss Plaintiffs first,
third, fomih, and fifth claims for relief. Specifically, it recommends that I grant the Motion to
Dismiss claim three (wrongful discharge) but deny the Motion to Dismiss as to the remaining
claims.
Defendant objects. It argues that while claim one rests on an alleged breach of the
express terms of the Plan, claim four rests on alleged violations of Oregon common law-the
doctrine of good faith and fair dealing. Defendant fu1iher argues that Judge Acosta improperly
blended together his analysis of these two claims. Defendant's argument is that if one focuses on
the express terms of the Plan, Plaintiff has failed to state a claim in claim one.
I disagree. The F &R properly focuses on the allegations in the Complaint in which there
were allegations of failures to pay. Defendant's argument depends on some of these failures,
involving commissions for example, being completely discretionary and therefore not violating
any express contractual term. While it seems con-ect that non payment of completely
discretionary payments may not violate any express contractual teims, it is not at all clear
2 - OPINION AND ORDER
whether the disputed non payments should be so categorized. More fundamentally, the
Complaint adequately alleges otherwise.
CONCLUSION
Upon review, I agree with Judge Acosta's recommendation and I ADOPT the F&R [19]
as my own opinion. Defendant's Motion to Dismiss [5] is DENIED on claims one, four, and
five, and GRANTED on claim three.
IT IS SO ORDERED.
DATED this
25 day of January, 2019.
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