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Dauven v. U.S Bancorp

United States District Court, D. Oregon

June 30, 2014

THEODORE (TED) E. DAUVEN, BARBARA G. DAUVEN, AND CHRISTIANA C. DAUVEN, Plaintiffs,
v.
U.S. BANCORP.; U.S. BANK NATIONAL ASSOCIATION, as trustee for MASTR ASSET BACKED SECURITIES TRUST, 2006-WMC2; WELLS FARGO AND COMPANY; IAN REEKIE; REEKIE PROPERTIES, LLC; STATE FARM MUTUAL AUTOMOBILE INSURANCE CO.; J.R. OLEYAR; DANIEL STAUFFER; SHAWNA STAUFFER; RANDALL STAUFFER; CHRISTINA STAUFFER; ELIZABETH BALKOVIC ALLAN; TERESA BALKOVIC; MARY MARGARET WEIBEL; SAMUEL TAYLOR V; ANNIE MECKLEY TENNESON; DENISE FRICKE; and KINGSLEY W. CLICK, Defendants.

ORDER

ANNA J. BROWN, District Judge.

Magistrate Judge John V. Acosta issued Findings and Recommendation (#140) on March 19, 2014, in which he recommends the Court grant Defendants' Motions to Dismiss (#38, #40, #43, #52, #54, #73, #95, #103) and grant Defendant State Farm Mutual Automobile Insurance Company's Motion for Summary Judgment (#120). The matter is now before this Court pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b). Plaintiffs filed timely Objections on April 18, 2014.

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 Dawson v. Marshall, 561 F.3d 930, 932 (9th Cir. 2009); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)( en banc ).

MOTION (#38) TO DISMISS OF DEFENDANT ANNIE MECKLEY TENNESON

Magistrate Judge Acosta recommends granting Defendant Tenneson's Motion to Dismiss and dismissing with prejudice Plaintiffs' Claims One, Two, and Three against Tenneson on the ground that Plaintiffs' Amended Complaint does not contain any allegations that Plaintiffs are members of a protected class who suffer from invidious discrimination or that Tenneson acted with any class-based animus, and, therefore, Plaintiffs fail to state a claim against Tenneson for violation of 42 U.S.C. § 1985(2) or (3).[1]

In their Objections Plaintiffs reiterate the arguments contained in their Response to Tenneson's Motion to Dismiss and stated at oral argument. This Court has carefully considered Plaintiffs' Objections and concludes they do not provide a basis to modify the substantive legal analysis of the Findings and Recommendation. The Court, however, notes the Ninth Circuit has made clear that when a plaintiff fails to state a claim, "[l]eave to amend should be granted unless the pleading could not possibly be cured by the allegation of other facts, ' and should be granted more liberally to pro se plaintiffs." Alcala v. Rios, 434 F.App'x 668, 670 (9th Cir. 2011)(quoting Ramirez v. Galaza, 334 F.3d 850, 861 (9th Cir. 2003)). It is unclear on the face of the Amended Complaint that Plaintiffs could not in good faith allege they are members of a protected class who suffer from invidious discrimination or that Defendant Tenneson acted with any class-based animus. The Court, therefore, declines to adopt the Magistrate Judge's recommendation to dismiss with prejudice Plaintiffs' claims against Tenneson.

Accordingly, the Court GRANTS Defendant Tenneson's Motion (#38) to Dismiss and DISMISSES without prejudice Plaintiffs' Claims One, Two, and Three against Defendant Tenneson.

MOTION (#40) TO DISMISS OF DEFENDANT MARY MARGARET WEIBEL

Magistrate Judge Acosta recommends granting Defendant Weibel's Motion to Dismiss and dismissing with prejudice Plaintiffs' Claims One, Two, and Three against Weibel on the ground that Plaintiffs' Amended Complaint does not contain any allegations that Plaintiffs are members of a protected class who suffer from invidious discrimination or that Weibel acted with any class-based animus, and, therefore, Plaintiffs fail to state a claim for violation of 42 U.S.C. § 1985(2) or (3).

In their Objections Plaintiffs reiterate the arguments contained in their Response to Weibel's Motion to Dismiss and stated at oral argument. This Court has carefully considered Plaintiffs' Objections and concludes they do not provide a basis to modify the substantive legal analysis of the Findings and Recommendation. As noted, however, when a plaintiff fails to state a claim, "[l]eave to amend should be granted unless the pleading could not possibly be cured by the allegation of other facts, and should be granted more liberally to pro se plaintiffs." Alcala, 434 F.App'x at 670 (quotation omitted). It is unclear on the face of the Amended Complaint that Plaintiffs could not in good faith allege they are members of a protected class who suffer from invidious discrimination or that Weibel acted with any class-based animus. The Court, therefore, declines to adopt the Magistrate Judge's recommendation to dismiss with prejudice Plaintiffs' claims against Weibel.

Accordingly, the Court GRANTS Defendant Weibel's Motion (#40) to Dismiss and DISMISSES without prejudice Plaintiffs' Claims One, Two, and Three against Defendant Weibel.

MOTION (#43) TO DISMISS OF DEFENDANTS IAN REEKIE AND REEKIE PROPERTIES, LLC

Magistrate Judge Acosta recommends granting the Motion to Dismiss of Defendants Ian Reekie and Reekie Properties, LLC (Reekie Defendants) and dismissing with prejudice Plaintiffs' Claims One, Two, and Three against Reekie Defendants on the ground that Plaintiffs' Amended Complaint does not contain any allegations that Plaintiffs are members of a protected class who suffer from invidious discrimination or that Reekie Defendants acted with any class-based animus, and, therefore, Plaintiffs fail to state a claim for violation of 42 U.S.C. § 1985(2) or (3).

In their Objections Plaintiffs reiterate the arguments contained in their Response to Reekie Defendants' Motion to Dismiss and stated at oral argument. This Court has carefully considered Plaintiffs' Objections and concludes they do not provide a basis to modify the substantive legal analysis of the Findings and Recommendation. As noted, however, when a plaintiff fails to state a claim, "[l]eave to amend should be granted unless the pleading could not possibly be cured by the allegation of other facts, and should be granted more liberally to pro se plaintiffs." Alcala, 434 F.App'x at 670 (quotation omitted). It is unclear on the face of the Amended Complaint that Plaintiffs could not in good faith allege they are members of a protected class who suffer from invidious discrimination or that Reekie Defendants acted with any class-based animus. The Court, therefore, declines to adopt the Magistrate Judge's recommendation to dismiss with prejudice Plaintiffs' claims against Reekie Defendants.

Accordingly, the Court GRANTS Reekie Defendants' Motion (#43) to Dismiss and DISMISSES without prejudice Plaintiffs' Claims One, Two, and Three against Reekie Defendants.

MOTION (#52) TO DISMISS OF DEFENDANT RANDALL STAUFFER

Magistrate Judge Acosta recommends granting Defendant Randall Stauffer's Motion to Dismiss and dismissing with prejudice Plaintiffs' Claims One, Two, Three, and Twelve against Randall Stauffer.

I. Plaintiffs' Claims One, Two, and Three

The Magistrate Judge recommends dismissing with prejudice Plaintiffs' Claims One, Two, and Three against Randall Stauffer on the ground that Plaintiffs' Amended Complaint does not contain any allegations that Plaintiffs are members of a protected class who suffer from invidious discrimination or that Randall Stauffer acted with any class-based animus, and, therefore, Plaintiffs fail to state a claim for violation of 42 U.S.C. § 1985(2) or (3).

In their Objections Plaintiffs reiterate the arguments contained in their Response to Randall Stauffer's Motion to Dismiss and stated at oral argument. This Court has carefully considered Plaintiffs' Objections and concludes they do not provide a basis to modify the substantive legal analysis of the Findings and Recommendation.

II. Plaintiffs' Claim Twelve

The Magistrate Judge recommends dismissing with prejudice Plaintiffs' Claim Twelve against Randall Stauffer on the ground that Plaintiffs have not stated a claim against Randall Stauffer under 42 U.S.C. § 1983 for violation of Plaintiffs' constitutional rights because Plaintiffs do not allege in their Amended Complaint that Randall Stauffer was a state actor, was entwined with state actors, conspired with state actors, or that his conduct is attributable to the State.

In their Objections Plaintiffs reiterate the arguments contained in their Response to Randall Stauffer's Motion to Dismiss and stated at oral argument. This Court has carefully considered Plaintiffs' Objections and concludes they do not provide a basis to modify the substantive legal analysis of the Findings and Recommendation.

III. Dismissal Without Prejudice

As noted, when a plaintiff fails to state a claim, "[l]eave to amend should be granted unless the pleading could not possibly be cured by the allegation of other facts, and should be granted more liberally to pro se plaintiffs." Alcala, 434 F.App'x at 670 (quotation omitted). It is unclear on the face of the Amended Complaint that Plaintiffs could not in good faith allege they are members of a protected class who suffer from invidious discrimination; that Randall Stauffer acted with any class-based animus; or that Randall Stauffer was a state actor, was entwined with state actors, conspired with state actors, or that his conduct is attributable to the State. The Court, therefore, declines to adopt the Magistrate Judge's recommendation to dismiss with prejudice Plaintiffs' claims against Randall Stauffer.

In summary, the Court GRANTS Defendant Randall Stauffer's Motion (#52) to Dismiss and DISMISSES without prejudice Plaintiffs' Claims One, Two, Three, and Twelve against Randall Stauffer.

MOTION (#54) TO DISMISS OF DEFENDANT CHRISTINA STAUFFER

Magistrate Judge Acosta recommends granting Defendant Christina Stauffer's Motion to Dismiss and dismissing with prejudice Plaintiffs' Claims One and Two against Christina Stauffer and dismissing without prejudice ...


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