United States District Court, D. Oregon
UNITED SPECIALTY INSURANCE COMPANY, a Delaware corporation, Plaintiff,
CLAY JONAK, an Oregon resident, ROGER ISON, an Oregon resident, Defendants, THE STATE OF OREGON, acting by and through its Department of Lands, Applicant for Intervention.
J. BROWN United States Senior District Judge.
Judge John V. Acosta issued Findings and Recommendation (#30)
on August 28, 2017, in which he recommends the Court grant
the State of Oregon's Motion (#14) to Intervene. The
Magistrate Judge found the State is a necessary party and is
entitled to intervene as a matter of right. The Magistrate
Judge, however, also found the State waived its Eleventh
Amendment sovereign immunity.
parties did not file objections as to the Findings and
Recommendation that this Court grant the State's request
to intervene. The State, however, filed timely Objections to
the Findings and Recommendation that this Court find the
State waived its sovereign immunity. That issue is now before
this Court pursuant to 28 U.S.C. § 636(b)(1) and Federal
Rule of Civil Procedure 72(b).
the parties did not file objections to the Magistrate
Judge's- Findings and Recommendation as to the
State's request to intervene, this Court is relieved of
its obligation to review the record de novo
regarding this issue. See Dawson v. Marshall, 561
F.3d 930, 932 (9th Cir. 2009). See also United
States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.
2003) (en banc). Having reviewed the legal
principles de novo, the Court does not find any
error in the Findings and Recommendation as to the
State's request to intervene.
noted, however, the State filed an Objection to the Findings
and Recommendation that this Court find the State waived its
sovereign immunity. 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). Accordingly, the only issue before this Court is
whether the State waived its sovereign immunity.
on April 6, 2012, Defendants leased property on the Columbia
River from the State of Oregon. The Lease required Defendants
to obtain and to maintain pollution 'liability insurance
for bodily injury, property damage, and environmental damage
on the leased property.
January 5, 2016, Defendants obtained an environmental .policy
from Plaintiff covering the leased premises with effective
dates from January 5, 2016, to January 5, 2017. Plaintiff
alleges Defendants made misrepresentations to Plaintiff in
their application for insurance that there were not any prior
or pending claims related to the property. The property,
however, had actually been subject to multiple complaints
and/or claims by various agencies regarding pollution on the
leased property since July 1, 2015.
November 1, 2016, the State sent a Notice of Claim to
Defendants seeking reimbursement for property damage and
clean-up costs on the property.
November 14, 2016, the State sent a notice to Defendants
terminating the lease.
December 15, 2016, Plaintiff received a copy of the Notice of
January 19, 2017, Plaintiff sent a letter to Defendants
regarding coverage issues for the claim made by the State.
March 20, 2017, the State and Defendants entered into a
Settlement Agreement regarding the lease. A Final Order
terminated the. lease as of May 1, 2017, ...