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Howard v. Maximus, Inc.

United States District Court, D. Oregon

February 5, 2014

MELVIN J. HOWARD, Plaintiff,
v.
MAXIMUS, INC., d/b/a MAXIMUS, CANADA, INC., d/b/a THEMIS PROGRAM MANAGEMENT & CONSULTING LTD.; STEVE KITCHER, in his individual capacity; and JOANNE PLATT, in her individual capacity, Defendants.

ORDER

ANNA J. BROWN, District Judge.

Magistrate Judge Janice M. Stewart issued Findings and Recommendation (#27) on November 20, 2013, in which she recommends the Court grant the Motion (#20) to Dismiss of Defendant Maximus, Inc.[1] Plaintiff, appearing pro se, filed timely Objections to the Findings and Recommendation. The matter is now before this Court pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b).

I. Portions of the Findings and Recommendation to which Plaintiff Does Not Object

It appears Plaintiff does not object to the portions of the Findings and Recommendation in which the Magistrate Judge dismisses with prejudice Plaintiff's "Piercing the Corporate Veil" claim and Defendant's alternative request for dismissal under Federal Rule of Civil Procedure 12(b)(7) for failure to join "required" parties under Federal Rule of Civil Procedure 19. The Court, therefore, is relieved of its obligation to review the record de novo as to these portions of the Findings and Recommendation. See Shiny Rock Min. Corp v. U.S., 825 F.2d 216, 218. (9th Cir. 1987). See also Lorin Corp. v. Goto & Co., 700 F.2d 1202, 1206 (8th Cir. 1983).

Having reviewed the legal principles de novo, the Court does not find any error in these portions of the Findings and Recommendation except that the Court dismisses Plaintiff's "Piercing the Corporate Veil" claim without prejudice.

II. Portions of the Findings and Recommendation to which Plaintiff Objects

When any party objects to any portion of the Magistrate Judge's Findings and Recommendation, the district court must make a de novo determination of that portion of the Magistrate Judge's report. 28 U.S.C. § 636(b)(1). See also United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)( en banc ); United States v. Bernhardt, 840 F.2d 1441, 1444 (9th Cir. 1988).

Plaintiff appears to object to the part of the Findings and Recommendation in which the Magistrate Judge concludes Plaintiff's claim under 42 U.S.C. § 1983 should be dismissed for lack of subject-matter jurisdiction and Plaintiff's claims under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1962, et seq., should be dismissed for failure to state a claim. Plaintiff appears to argue that his case "touches and concerns the territory of the United States with sufficient force" that his § 1983 and RICO claims should not be dismissed.

This Court has carefully considered Plaintiff's Objections and concludes they do not provide a basis to modify these portions of the Findings and Recommendation. The Court also has reviewed the pertinent portions of the record de novo and does not find any error in the Magistrate Judge's Findings and Recommendation.

III. Defendant's Alternative Argument for Failure to Join Required Parties under Rule 19

As noted, the Court does not find error in the Magistrate Judge's conclusions that Plaintiff's § 1983 claim should be dismissed for lack of jurisdiction and his RICO and "Piercing the Corporate Veil" claims should be dismissed for failure to state a claim. Although the Magistrate Judge concludes the Court need not reach the issue of Defendant's alternative argument that Plaintiff's claims should be dismissed for failure to join required parties, the Magistrate Judge included a discussion of the merits of Defendant's alternative argument. Because the Court concludes Plaintiff's claims should be dismissed as recommended by the Magistrate Judge on the ground that the Court lacks jurisdiction over the Plaintiff's § 1983 claim and fails to state a claim under RICO and under his "Piercing the Corporate Veil" theory, the Court need not address Defendant's alternative argument.

IV. New Claims

Plaintiff also appears to be attempting to assert new claims under the Alien Tort Statute, 28 U.S.C. § 1350, and the Torture Victim Protection Act of 1991, 106 Stat. 73 (note following 28 U.S.C. § 1350) that he did not assert in his Complaint nor in his Opposition to Defendant's Motion. To the extent that Plaintiff is attempting to assert new claims, these assertions do not provide a basis to modify the Findings and Recommendation and, in any event, are inappropriate at this stage as the opportunity to object to the Magistrate Judge's Findings and Recommendations is not an invitation for Plaintiff to have a "second bite at the apple." See Greenhow v. Sec'y of Health & Human Servs., 863 F.2d 633, 638 (9th Cir. Cal. 1988), overruled on other grounds, United States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir. 1992)("[A]llowing parties to litigate fully their case before the magistrate and, if unsuccessful, to change their strategy and present a different theory to the district court would frustrate the purpose of the Magistrates Act. We do not believe that the Magistrates Act was intended to give litigants an opportunity to run one version of their case past the magistrate, then another past the district court."). See also Chiari v. New York Racing Ass'n Inc., No. 12-CV-0598, 2013 WL 5234242, at *2 (E.D.N.Y. 2013)("Although the ...


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