United States District Court, D. Oregon
OPINION AND ORDER
MICHAEL H. SIMON, District Judge.
United States Magistrate Judge John V. Acosta issued Findings and Recommendation in this case on August 26, 2014. Dkt. 27. Judge Acosta recommended that (1) Defendant's motion to dismiss be granted; (2) Plaintiff's motion to amend the complaint be denied; and (3) the case be dismissed with prejudice.
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."
Plaintiff timely filed an objection, Dkt. 32, to which Defendant responded. Dkt. 36. Defendant also timely filed a limited objection, Dkt. 35, to which Plaintiff responded. Dkt. 37. Plaintiff objects to the treatment of Defendant's jurisdictional challenge as a factual attack; to the finding that Plaintiff has not adequately established subject-matter jurisdiction; and to the recommendation that the case be dismissed with prejudice. Defendant objects that Judge Acosta also should have addressed Defendant's alternative argument that Plaintiff failed to state a claim for relief.
The Court has reviewed de novo Judge Acosta's Findings and Recommendation, as well as Plaintiff's and Defendant's objections, both responses, and the underlying briefing in this case. The Court largely agrees with Judge Acosta's reasoning and adopts Judge Acosta's Findings and Recommendation, supplemented as follows.
A. Evidence Not Presented to the Magistrate Judge
In support of his objections, Plaintiff has included two new declarations and four new exhibits. "[A] district court has discretion, but is not required, to consider evidence presented for the first time in a party's objection to a magistrate judge's recommendation." United States v. Howell, 231 F.3d 615, 621 (9th Cir. 2000). Plaintiff could have provided this information for Judge Acosta to consider, and Plaintiff offers no reason why this evidence was not presented to Judge Acosta. Accordingly, the Court declines to consider this new evidence.
B. Facial and Factual Challenges to Standing
A motion to dismiss for lack of subject-matter jurisdiction brought under Federal Rule of Civil Procedure 12(b)(1) may be either "facial" or "factual." Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). A facial attack on subject-matter jurisdiction is based on the premise that the allegations in the complaint, accepted as true, are insufficient to invoke federal jurisdiction. Id. By contrast, in a factual attack, "the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction.'" Pride v. Correa, 719 F.3d 1130, 1133 n.6 (9th Cir. 2013) (quoting Safe Air for Everyone, 373 F.3d at 1039). When a defendant factually challenges the plaintiff's assertion of jurisdiction, a court does not presume the truthfulness of the plaintiff's allegations and may consider evidence extrinsic to the complaint. Terenkian v. Republic of Iraq, 694 F.3d 1122, 1131 (9th Cir. 2012); Safe Air for Everyone, 373 F.3d at 1039. A factual challenge "can attack the substance of a complaint's jurisdictional allegations despite their formal sufficiency." Dreier v. United States, 106 F.3d 844, 847 (9th Cir. 1996) (citation and quotation marks omitted).
In this case, Judge Acosta treated Defendant's subject-matter jurisdiction challenge as a factual attack. Defendant, however, did not dispute the truth of Plaintiff's allegations or offer extrinsic evidence; rather, Judge Acosta determined that a declaration provided by Plaintiff, the non-movant, converted the attack into a factual one. Judge Acosta accordingly determined that Plaintiff's allegations need not be presumed true. Plaintiff argues that this was improper.
Generally, the movant offers the extrinsic evidence that constitutes a factual attack. See Safe Air for Everyone, 373 F.3d at 1039 ("[I]n a factual attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction." (emphasis added)). Plaintiff argues that because Defendant's motion did not attack the substance of his allegations, Defendant's attack could not have been factual, and Plaintiff's allegations should therefore have been accepted as true. Defendant, on the other hand, correctly points out that under a facial analysis, Judge Acosta would not have considered Plaintiff's declaration, which contains additional factual matter to support Plaintiff's standing.
Whether a non-movant can convert a jurisdictional challenge from facial to factual by submitting extrinsic evidence is unclear. What is clear, however, is that the legal standard used was inconsequential to the outcome: Even under the standard for a ...