United States District Court, D. Oregon
INTERNATIONAL LONGSHORE AND WAREHOUSE UNION, LOCAL 40, Plaintiff,
COLUMBIA GRAIN, a.k.a. WILLAMETTE STEVEDORING, Defendant.
Thomas K. Doyle, BENNETT HARTMAN MORRIS & KAPLAN, LLP, 210 S.W. Morrison Street, Suite 500, Portland, OR 97204, Of Attorneys for Plaintiff.
Francis T. Barnwell and Kirk S. Peterson, BULLARD SMITH JERNSTEDT WILSON, 200 S.W. Market Street, Suite 1900, Portland, OR 97201, Of Attorneys for Defendant.
OPINION AND ORDER
MICHAEL H. SIMON, District Judge.
United States Magistrate Judge John V. Acosta issued his Findings and Recommendation ("F&R") in this case on July 21, 2014. Dkt. 41. Judge Acosta recommended that Defendant's motion for summary judgment (Dkt. 29) be denied.
Under the Federal Magistrates Act ("Act"), the Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1)(C). If a party files objections to a magistrate's findings and recommendations, "the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." Id.; Fed.R.Civ.P. 72(b)(3).
For those portions of a magistrate's findings and recommendations to which neither party has objected, the Act does not prescribe any standard of review. See Thomas v. Arn, 474 U.S. 140, 152 (1985) ("There is no indication that Congress, in enacting [the Act], intended to require a district judge to review a magistrate's report to which no objections are filed."); United States. v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (holding that the court must review de novo magistrate's findings and recommendations if objection is made, "but not otherwise"). Although in the absence of objections no review is required, the Act "does not preclude further review by the district judge sua sponte ... under a de novo or any other standard." Thomas, 474 U.S. at 154. Indeed, the Advisory Committee Notes to Fed.R.Civ.P. 72(b) recommend that "[w]hen no timely objection is filed, " the Court review the magistrate's recommendations for "clear error on the face of the record."
Defendant timely filed an objection (Dkt. 43), to which Plaintiff responded. Dkt. 47. Defendant objects to the portion of Judge Acosta's F&R concluding that there are issues of fact as to whether Columbia Grain and Willamette Stevedoring are alter egos. Specifically, Defendant objects that: (1) the F&R failed to require evidence of fraud or misrepresentation, which Defendant contends is a required element in determining alter-ego status; (2) the F&R failed to recognize that there was no evidence of anti-union animus because the transfer of work judgment and not as a motion for judgment on the pleadings. No party objected to this conclusion by Judge Acosta, and the Court agrees with this treatment. in this case was from one entity using union labor to another entity using union labor and was done for a legitimate business purpose; and (3) Columbia Grain had no preexisting contractual relationship with the International Longshore and Warehouse Union ("ILWU") Local 40 and, thus, Columbia Grain had no obligations with respect to Local 40. These objections are discussed below, in turn.
A. Portions of the F&R Without Objections
For those portions of the F&R to which Defendant has not objected, the Court follows the recommendation of the Advisory Committee and reviews those portions for clear error on the face of the record. No such error is apparent. Accordingly, the Court ADOPTS those portions of the F&R against which no objections were asserted, including Judge Acosta's conclusion that there are issues of fact regarding whether Columbia Grain and Willamette Stevedoring constitute a "single employer."
B. Portions of the F&R With Objections
The Court has reviewed de novo the portion of the F&R to which Defendant objected, Defendant's objections, Plaintiff's response to the objections, and the underlying submissions filed in connection with Defendant's motion before Judge Acosta. For the following reasons, the Court rejects the objections asserted by Defendant.
1. Fraud or misrepresentation
Defendant's argument that Plaintiff must prove fraud or misrepresentation to demonstrate alter-ego status misunderstands the elements established by the U.S. Court of Appeals for the Ninth Circuit. To prove alter-ego status, a plaintiff must show that: (1) the entities function as a single employer, and (2) the entity to which the work was diverted was "being used in a sham effort to avoid collective bargaining obligations... rather than for the pursuit of legitimate business objectives untainted by union animus.'" S. Cal. Painters & Allied Trades, Dist. Council No. 36 v. Rodin & Co., 558 F.3d 1028, 1032 (9th Cir. 2009) (quoting UA Local 343 v. Nor-Cal Plumbing, Inc., 48 F.3d 1465, 1470 (9th Cir. 1995) (alteration in original)). A plaintiff can prove the second element by showing "a disguised continuation, technical change, or sham undertaken for the purpose of shifting union work to a non-union company." Id. (quotation marks omitted); see also Resilient Floor Covering Pension Fund v. M&M Installation, Inc., 630 F.3d 848, 852 (9th Cir. 2010) ("[The second] element has been variously phrased as whether [the non-union employer] was created in an attempt to avoid the obligations of a [the union employer's] collective bargaining agreement through a sham transaction or a technical change in operations; whether the non-union employer was used in a sham effort to avoid collective bargaining obligations; and whether some measure of fraud or misrepresentation exists." (first alteration added, remaining alterations in original (quotation marks omitted))); A. Dariano & Sons, Inc. v. Dist. Council of Painters No. 33, 869 F.2d 516, 519 (9th Cir. 1989) (noting that the alter-ego test is ...