Freitag v. Catlin Indemnity Company et al

Filing 99

ORDER: I ADOPT the Magistrate's Findings and Recommendation 83 in its entirety; defendants' motion for summary judgment 28 is DENIED, plaintiff's motion for partial summary judgment 47 is GRANTED, and defendants' motion for leave to amend 63 is DENIED. Defendants' request for oral argument is DENIED as unnecessary. Signed on July 23, 2013 by Chief Judge Ann L. Aiken. (cp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
KURT FREITAG dba BIG FISH
PARTNERS,

Case No. 6:12-cv-01111-TC
0 R D E R

Plaintiff,

v.
CATLIN INDEMNITY COMPANY,
a foreign corporation;
CATLIN INSURANCE COMPANY,
INC., a foreign corporation;
CENTURY SURETY COMPANY, a
foreign corporation; and
CATLIN SPECIALTY INSURANCE
COMPANY, a foreign
corporation,
Defendants.
AIKEN, Chief Judge:
Magistrate Judge Coffin filed his Findings and Recommendation
on June 11, 2013, recommending that plaintiff Kurt Freitag's motion
for partial summary judgment be granted, and that defendants Catlin
Indemnity Company's, Catlin Insurance Company, Inc.'s, and Catlin
Specialty

Insurance

Company's

motion

for

summary

motion for leave to amend their answer be denied.
Page 1 - ORDER

judgment

and

The matter is

now before me pursuant to 28 U.S.C.
P.

§

636(b) (1) (B) and Fed. R. Civ.

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.

See 28 U.S.C.

§

636(b) (1) (C); McDonnell Douglas Corp. v.

Commodore Bus. Machs., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981),
cert. denied, 455 U.S. 920 (1982).
Defendants timely filed objections to:

(1) the denial of their

motion to amend; and (2) the merits of Magistrate Coffin's findings
regarding the parties' cross-motions for summary judgment.

I have,

therefore, given those portions of the report a de novo review.

As

to the former, defendants argue that they should be granted leave
to amend their answer in order to allege additional affirmative
defenses and counter-claims because they did not become aware of
the facts necessary to support such allegations until January and
February 2013.

See Defs.' Objections at 4-8, 11.

A review of the

record reveals that this "new" evidence does not include any facts
that

defendants

did not

moving to amend.

reasonably have

access

to

long before

Further, defendants moved to amend their answer

seven months after their initial response, five months after filing
their

motion

for

summary

judgment,

and

two

months

after

they

allegedly became aware of additional facts through discovery.
Finally, contrary to defendants' assertion, the fact that they
filed their motion to amend before "the agreed deadline" does not
give them an immediate right to amend.
Page 2 - ORDER

Id. at 4; see also Fed. R.

Civ. P. 15(a).

In other words, the parties' discovery agreement

merely establishes deadlines for them to request leave from the
court to amend,

a request that Magistrate Coffin denied in his

Findings and Recommendation.

In any event, this Court agrees with

Magistrate Coffin's analysis and conclusion at to this issue.
Defendants' remaining objections merely restate their initial
See generally Defs.'

arguments in favor of summary judgement.
I

Objections.
conclusions

agree

regarding

with
these

Magistrate

Coffin's

analysis

and

matters.

As

I

the

such,

ADOPT

Magistrate's Findings and Recommendation (doc. 83) in its entirety;
defendants'

motion

for

summary

judgment

plaintiff's

motion

for

partial

summary

GRANTED,
DENIED.

(doc.

28)

judgment

and defendants' motion for leave to amend
Defendants'

request

for

oral

argument

unnecessary.
IT IS SO ORDERED.
Dated this

~

day of July, 2013.

)

Ann Aiken
United States District Judge

Page 3 - ORDER

is

(doc.

4 7)

is

63)

is

DENIED

as

(doc.
is

DENIED,