DTL Builders, Inc. v. RI KY Roofing & Sheet Metal, LLC
Filing
27
ORDER: Granting in Part Denying in Part 12 Motion to Dismiss for Failure to State a Claim; Adopting Findings and Recommendation 20 in case 6:17-cv-01251-JR; Granting in Part Denying in Part 19 Motion to Dismiss for Failure to State a Claim; Adopting Findings and Recommendation 26 in case 6:17-cv-01592-JR in case 6:17-cv-01251-JR. Any motion to amend should be filed within fourteen days of this order. Signed on 3/28/2018 by Judge Ann L. Aiken. Associated Cases: 6:17-cv-01592-JR, 6:17-cv-01251-JR (ck)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION
DTL BUILDERS, INC., a Utah corporation, and
THE CINCINNATI INSURANCE COMPANY,
and an Ohio surety,
Case No. 6:17-cv-01592-JR
6: 17-cv-01251-JR
ORDER
Plaintiffs,
vs.
RI KY ROOFING & SHEET METAL, LLC,
Oregon limited liability company,
Defendant.
AIKEN, Judge:
Magistrate Judge Russo filed her Findings and Recommendation ("F&R") (doc. 20) on
February 7, 2018. The matter is now before me. See 28 U.S.C. § 636(b); Fed. R. Civ. P. 72.
Judge Russo recommended dismissing defendant DTL Builders' ("DTL") claim for breach of the
duty of good faith and fair dealing. DTL filed objections to the F&R on a single ground: it
argues that Judge Russo's recommendation is moot because DTL has filed for leave to amend
the good faith and fair dealing claim. The recommendation is not moot because Judge Russo has
not granted DTL's motion for leave to amend and has stayed consideration of that motion
pending my ruling on the F&R.
Page 1 - OPINION AND ORDER
Although DTL's decision not to object to Judge Russo's F&R on the merits relieves me
of my obligation to perform a de nova review, I retain the obligation to "make an informed, final
determination." Britt v. Simi Valley Unified Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983),
overruled on other grounds, United States v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th Cir.
2003) (en bane). The Magistrates Act does not specify a standard of review in cases in which no
merits objections are filed.
Ray v. Astrue, 2012 WL 1598239, *l (D. Or. May 7, 2012).
Following the recommendation of the Rules Advisory Committee, I review the F&R for "clear
error on the face of the record[.]" Fed. R. Civ. P. 72 advisory committee's note (1983) (citing
Campbell v. United States District Court, 501 F.2d 196, 206 (9th Cir. 1974)); see also United
States v. Vonn, 535 U.S. 55, 64 n.6 (2002) (stating that, "[i]n the absence of a clear legislative
mandate, the Advisory Committee Notes provide a reliable source of insight into the meaning
of' a federal rule). Having reviewed the file of this case, I find no clear error.
THEREFORE, IT IS HEREBY ORDERED that I adopt Judge Russo's F&R (doc. 20).
' ,,,Jf\..__.,
Dated thisJC:Jc\ay of March 2018.
__6~2~.l~.fA~a~/_t.{~.f~~-t~-·"-~/
Ann Aiken
United States District Judge
Page 2 - OPINION AND ORDER
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?