United States District Court, D. Oregon
January 26, 2015
PAUL M. HAYDEN, Plaintiff,
UNITED STATES OF AMERICA, Defendant
Paul M Hayden, Plaintiff: Arthur C. Johnson, Jennifer J.
Middleton, LEAD ATTORNEYS, Johnson Johnson Larson & Schaller,
PC, Eugene, OR.
United States of America, Defendant: Kevin C. Danielson, LEAD
ATTORNEY, Janice E. Hebert, U.S. Attorney's Office,
H. Simon, United States District Judge.
States Magistrate Judge John V. Acosta issued a Findings and
Recommendation in this case on December 16, 2014. Dkt. 18.
Judge Acosta recommended that Plaintiff's Motion to
Strike (Dkt. 13) be granted in part and denied in part. No
party has filed objections.
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.
party objects, however, the Act does not prescribe any
standard of review. See Thomas v. Arn, 474
U.S. 140, 152, 106 S.Ct. 466, 88 L.Ed.2d 435 (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." ). Nor does the Act " preclude further
review by the district judge sua sponte. . . under
a de novo or any other standard."
Thomas, 474 U.S. at 154. And 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 findings and recommendations for "
clear error on the face of the record."
party has made objections, this Court follows the
recommendation of the Advisory Committee and reviews Judge
Acosta's Findings and Recommendation for clear error on
the face of the record. No such error is apparent.
Accordingly, the Court ADOPTS Judge Acosta's Findings and
Recommendation, Dkt. 18. Plaintiff's Motion to Strike
(Dkt. 13) is GRANTED in part and DENIED in part. The United
States' Third and Fifth Affirmative Defenses are STRUCK
with leave to replead.
IS SO ORDERED.