United States District Court, D. Oregon
DR. ERIK NATKIN, DO PC, a Utah corporation; and DR. ERIK NATKIN, DO, an individual, Plaintiffs,
AMERICAN OSTEOPATHIC ASSOCIATION,, Defendants.
Michael H. Simon United States District Judge
States Magistrate Judge Stacie Beckerman issued Findings and
Recommendation in this case on March 23, 2017. ECF 102. Judge
Beckerman recommended that Plaintiff's motion to remand,
which Judge Beckerman refers to as “retransfer, ”
this case back to the United States District Court for the
Central District of California be denied.
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). 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).
timely filed an objection (ECF 106), to which Defendants
responded (ECF 107-110). Plaintiffs' primary objection is
that Judge Beckerman improperly evaluated whether the Court
has personal jurisdiction over three of the defendants in
this case. Plaintiffs argue that the Central District of
California erroneously concluded that this Court has personal
jurisdiction over three of the defendants and thus this case
originally might have been brought in this Court. Plaintiffs
contend that because that decision by the Central District of
California was erroneous, the transfer was void and this
Court does not have subject matter jurisdiction to evaluate
whether it has personal jurisdiction over the three disputed
defendants. Plaintiffs' argument appears to be that
because they contend the Central District of California's
decision was erroneous, this Court must retransfer the case
without any further evaluation. This argument is rejected.
argue that the transfer of venue was improperly granted,
specifically because of lack of personal jurisdiction over
the three disputed defendants. Judge Beckerman therefore had
to consider whether the conclusion of the Central District of
California that this Court was a court in which this case
originally might have been brought was “clearly
wrong.” This analysis necessary entails considering
whether this Court has personal jurisdiction over the three
disputed defendants. It would be nonsensical if this Court
could not consider whether it had personal jurisdiction over
the defendants. To hold as Plaintiffs suggest would mean that
a plaintiff could obtain a retransfer simply by declaring
that the transferor court was wrong in determining personal
jurisdiction. The fact that Judge Beckerman's analysis
and conclusions regarding personal jurisdiction were based on
different reasons than the Central District of California
does not change the end result-this Court has personal
jurisdiction over the three disputed defendants.
raise other objections, which are overruled. Plaintiffs argue
that a transfer of venue cannot be based on specific
jurisdiction but must be based on general jurisdiction. This
argument was raised for the first time in Plaintiffs'
objections to Judge Beckerman's Findings and
Recommendations and the Court exercises its discretion not to
consider the argument. See 28 U.S.C. §
636(b)(1) (permitting the court to “receive further
evidence” at its discretion); see also United
States v. Howell, 231 F.3d 615, 621 (9th Cir. 2000)
(discussing the Circuit split on whether a district court
must or may consider new evidence when reviewing de novo a
magistrate judge's findings and recommendation, and
concluding that a district “has discretion, but is not
required” to consider new evidence). Even if the Court
were to consider it, it would be rejected on the merits. The
requirement is that the transferee court be one in which a
case might have originally been brought (see 28
U.S.C. § 1404(a)), and a case can originally be brought
with specific jurisdiction. See ECF 107 at 5 n.1
(citing numerous cases transferring venue based on specific
also argue that there is no pendent jurisdiction in Oregon,
but the Ninth Circuit held in 2004 that “we join our
sister circuits and adopt the doctrine of pendent personal
jurisdiction.” Action Embroidery Corp. v. Atlantic
Embroidery, Inc., 368 F.3d 1174, 1181 (9th Cir 2004).
Plaintiffs further object to Judge Beckerman's failure to
retransfer based on Plaintiffs' argument that the Central
District of California improperly weighed the factors for
transferring venue. The Court agrees with Judge
Beckerman's conclusion on this point.
Court has reviewed de novo those portions of Judge
Beckerman's Findings and Recommendation to which
Plaintiffs have objected, as well as Plaintiffs'
objections and Defendants' responses. The Court agrees
with Judge Beckerman's reasoning and ADOPTS those
portions of the Findings and Recommendation.
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 Magistrates
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.” For
those portions of Judge Beckerman's Findings and
Recommendation to which neither party has objected, this
Court follows the recommendation of the Advisory Committee
and reviews those matters for clear error on the face of the
record. No such error is apparent.
Court ADOPTS Judge Beckerman's Findings
and Recommendation, ECF 102. Plaintiffs' motion to
retransfer this case back to the United States District Court
for the Central District of California (ECF 81) is DENIED.