Bohlman v. United States of America

Filing 36

ORDER: Adopting in part, Judge Coffin's Findings and Recommendation 27 ; Granting in Part Denying in Part Defendant's Supplemental Motion to Dismiss Case for Lack of Jurisdiction 26 and plaintiff's First and Second Claim s for Relief in the First Amended Complaint are Dismissed; Granting Plaintiff's Motion for Leave to File Amended Complaint 29 ; Finding as Moot Motion to Dismiss Case for Lack of Jurisdiction 9 . Amended Complaint is due 6/21/2013. Signed on 6/11/2013 by Chief Judge Ann L. Aiken. (lg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

DONALD K. BOHLMAN,

Case No.

6:11-cv-6422-TC

Plaintiff,

ORDER

v.
UNITED STATES OF AMERICA,
Defendant.
AIKEN, Chief Judge:
On March 26, 2013, Magistrate Judge Coffin issued his Findings
and

Recommendation

and

recommended

that

the

government's

supplemental motion to dismiss be granted and plaintiff's claims be
dismissed. The matter is now before me. 28 U.S.C.

§

636(b) (1) (B);

Fed. R. Civ. P. 72(b). When either party objects to any portion of
a

magistrate

judge's

Findings

and Recommendation,

the

district

court must make a de novo determination of that portion of the
magistrate judge's report.

1 - OPINION AND ORDER

See 28 U.S.C.

§

636(b) (1); McDonnell

Douglas Corp. v. Commodore Business Machines, Inc., 656 F.2d 1309,
1313 (9th Cir. 1981). Plaintiff filed timely objections to part of
the Findings and Recommendation and also filed a motion to amend
his complaint.
Plaintiff does not oppose dismissal of his first or second
causes of action alleged in the First Amended Complaint. However,
plaintiff opposes dismissal of the third cause of action on grounds
that it sufficiently states a claim for a refund under 26 U.S.C.

§

7422; to the extent it does not, plaintiff seeks leave to amend the
complaint and make clear the basis of the claim. Notably, plaintiff
had been advised to do so prior to the issuance of the Findings and
Recommendation and the government's supplemental motion to dismiss.
Plaintiff failed to make clear the basis of the refund claim and
did not

respond to the government's

plaintiff's
action,

I

failure

supplemental motion.

While

to respond could warrant dismissal of this

find that plaintiff may amend the complaint under the

liberal pleading standard of the federal rules. Cafasso, U.S.

ex

rel. v. General Dynamics C4 Systems, Inc., 637 F.3d 1047, 1058 (9th
Cir. 2011)

("Normally, when a viable case may be pled, a district

court should freely grant leave to amend.").
When considering proposed amendments, the court must consider
factors of bad faith, undue delay, prejudice to the opposing party,
futility of the amendment,

and whether previous amendments have

been allowed. Nunes v. Ashcroft, 375 F.3d 805, 808 (9th Cir. 2004).
While

delay

generally

2 - OPINION AND ORDER

does

not

warrant

denial

of

the motion,

"[f]utility alone can justify the denial of a motion for leave to
amend." Id.

(citing Bonin v. Calderon, 59 F.3d 815, 845

(9th Cir.

1995)). Here, I do not find bad faith. While the factors of delay
and previous amendments weigh against plaintiff, I do not find that
these

factors

government

warrant

denial

correctly concedes,

of
the

plaintiff's

motion.

As

proposed complaint

the

arguably

states a claim for relief, and the government has been on notice
that plaintiff seeks a refund. Therefore, I will allow plaintiff's
motion to amend. Plaintiff is advised to review Local Rule 7-1(a)
and comply with its conferral requirements in the future.
CONCLUSION
For

the

reasons

set

forth,

IT

IS

HEREBY

ORDERED

Magistrate Judge Coffin's Findings and Recommendation
filed

on

March

26,

2013,

is

Supplemental Motion to Dismiss

ADOPTED,
(doc. 26)

in

part.

(doc.

that
2 7)

Defendant's

is GRANTED in part,

and

plaintiff's First and Second Claims for Relief in the First Amended
Complaint

(doc.

25)

are

DISMISSED.

Plaintiff's

Motion

to

File

Second Amended Complaint (doc. 29) is GRANTED. Defendant's initial
Motion to Dismiss

(doc. 9) is DENIED as moot.

IT IS SO ORDERED.
Dated this

//

~

day of June, 2013.

)

Ann Aiken
United States District Judge

3 - OPINION AND ORDER