Hollis v. R&R Restaurants, Inc et al

Filing 122

ORDER - The Court ADOPTS Judge You's Findings and Recommendation, ECF 118 . The Court GRANTS IN PART Defendants' Motion for Summary Judgment (ECF 42 ) and Renewed Motion for Summary Judgment (ECF 98 ). The Court grants summary ju dgment against Plaintiff's wage-related and retaliation claims under the FLSA. The Court declines supplemental jurisdiction over Plaintiff's state law retaliation claim and dismisses that claim without prejudice. Signed on 3/26/2024 by Judge Michael H. Simon. (mja)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

ZOE HOLLIS, individually and on behalf of
all others similarly situated,

Case No. 3:21-cv-965-YY
ORDER

Plaintiff,
v.
R & R RESTAURANTS, INC dba SASSY’S,
et al.,
Defendants.

Michael H. Simon, District Judge.
United States Magistrate Judge Youlee Yim You issued Findings and Recommendation
in this case on November 30, 2023. Judge You recommended that this Court grant in part
Defendants’ motion for summary judgment. Specifically, Judge You recommended granting the
motion with respect to Plaintiff’s wage-related claims under the Fair Labor Standards Act
(FLSA) as time barred and FLSA retaliation claim on the merits, and decline supplemental
jurisdiction over Plaintiff’s state law retaliation claim and dismiss that claim without prejudice.
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 objects 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).
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 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 Rule 72(b)
of the Federal Rules of Civil Procedure 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. Plaintiff argues that Judge You erroneously concluded
that Plaintiff’s wage-related claims under the FLSA are time barred and that the Court should
grant summary judgment against Plaintiff’s claim for FLSA retaliation because Plaintiff is not an
“employee” under the statute. Plaintiff, however, merely rehashes her arguments presented
before Judge You. Objections that merely restate previously presented arguments, however, are
improper. See, e.g., El Papel LLC v. Inslee, 2021 WL 71678, at *2 (W.D. Wash. Jan. 8, 2021)
(“Because the Court finds that nearly all objections are merely a rehash of arguments already
raised and decided upon by the Magistrate Judge, the Court will not address each objection

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here.”); Eagleman v. Shinn, 2019 WL 7019414, at *4 (D. Ariz. Dec. 20, 2019) (“[O]bjections
that merely repeat or rehash claims asserted in the Petition, which the magistrate judge has
already addressed in the [Report and Recommendation], are not sufficient under Fed. R. Civ.
P. 72.”); Shiplet v. Veneman, 620 F. Supp. 2d 1203, 1206 n.2 (D. Mont. 2009), aff’d, 383 F.
App’x 667 (9th Cir. 2010) (explaining that objections that merely rehash arguments presented to
the magistrate judge are improper); see also Fed. R. Civ. P. 72(b)(3) (directing the court to
“determine de novo any part of the magistrate judge’s disposition that has been properly objected
to” (emphasis added)). Considering the Findings and Recommendation as without objection, the
Court finds no clear error.
Even if Plaintiff’s objections were properly lodged, upon de novo review, the Court
agrees with and adopts Judge You’s Findings and Recommendation. As Judge You explained,
Plaintiff failed to offer evidence of willfulness to expand the statute of limitations applicable to
Plaintiff’s wage-related claims under the FLSA. Plaintiff previously stated that discovery was
required to do so, but failed to take that discovery after the Court provided additional time.
Plaintiff also failed to challenge Defendants’ discovery responses as insufficient. Plaintiff’s
reliance on Defendants’ purportedly incomplete discovery responses to raise an issue of fact thus
fails, nor do those discovery responses show willfulness on their face.
For her FLSA retaliation claim, Plaintiff states in a conclusory fashion that there are
issues of fact that she was an employee of Dante’s, but fails to cite evidence showing such an
issue of fact. Plaintiff then focuses on arguing that an employer need not be the person who
engaged in the retaliation, but Judge You’s decision turned on whether Plaintiff was an
employee. Plaintiff fails to raise an issue of fact that she was an employee of Dante’s.

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The Court ADOPTS Judge You’s Findings and Recommendation, ECF 118. The Court
GRANTS IN PART Defendants’ Motion for Summary Judgment (ECF 42) and Renewed Motion
for Summary Judgment (ECF 98). The Court grants summary judgment against Plaintiff’s wagerelated and retaliation claims under the FLSA. The Court declines supplemental jurisdiction over
Plaintiff’s state law retaliation claim and dismisses that claim without prejudice.
IT IS SO ORDERED.
DATED this 26th day of March, 2024.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge

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