United States District Court, D. Oregon
A. Schuck and Leslie E. Baze, Schuck Law, LLC Of Attorneys
E. Loving and Jeremy N. Pyle, Of Attorneys for Defendants.
OPINION AND ORDER
Michael H. Simon, District Judge.
States Magistrate Judge Paul Papak issued Findings and
Recommendation in this case on October 16, 2017. ECF 82.
Judge Papak recommended that Defendants' motion to
certify this Court's Order relating to choice of law for
interlocutory appeal or, in the alternative, to certify the
underlying questions of law to the Oregon Supreme Court be
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).
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.”
filed an objection to the Findings and Recommendation. ECF
86. Plaintiff responded to Defendants' objections. ECF
88. Defendants argue that the Court should review the
Findings and Recommendation de novo and Plaintiff
argues that the Court should review it for clear error.
Because the Court's conclusion would be the same under
either review, the Court will review the issues de
novo. The Court adopts the Legal Standards and Material
Facts section of the Findings and Recommendation.
may certify an issue for interlocutory appeal if three
requirements are met: (1) “a controlling question of
law” must be present; (2) there must be a
“substantial ground for difference of opinion” as
to the controlling question; and (3) “an immediate
appeal from the order may materially advance the ultimate
termination of the litigation.” See 28 U.S.C. §
1292(b). Such certification should only be granted “in
extraordinary cases where decision of an interlocutory appeal
might avoid protracted and expensive litigation.”
U.S. Rubber Co. v. Wright, 359 F.2d 784, 785 (9th
Cir. 1966). Defendants argue that all three elements are met
in this case and that the Findings and Recommendation erred
in finding that all three elements are not met.
Controlling question of law
argue that choice of law is a controlling question of law in
this case. Defendants primarily rely on United States v.
Woodbury, which noted that a controlling question of law
must involve a “fundamental” determination. 263
F.2d 784, 787 (9th Cir. 1959). The court in Woodbury
gave as one of several examples of such fundamental
determinations a case holding that the rights of the United
States would be determined by state instead of federal law
and that choice-of-law determination resulted in the denial
of an application for receivership that would otherwise have
been granted and “might also have led to other results
seriously affecting the relief otherwise available to the
also cite to Hoffman v. Citibank (South Dakota)
N.A., in which the Ninth Circuit granted interlocutory
appeal on the district court's choice-of-law
determination to apply South Dakota law instead of California
law, when that determination resulted in the district court
compelling arbitration. 546 F.3d 1078 (9th Cir. 2008). They
also cite to Phillips v. Amoco Trinidad Oil Co., in
which the Ninth Circuit reviewed on interlocutory appeal the
district court's choice-of-law determination to apply the
law of Trinidad instead of the United States (the Jones Act)
for the tort claims of Trinidad citizens who were injured
while working on an American vessel. 632 F.2d 82 (9th Cir.
1980). Finally, Defendants cite to Schoenberg v.
Exportadora de Sal, SA de CV, 930 F.2d 777 (9th
Cir. 1991). In this case the Ninth Circuit reviewed on
interlocutory appeal (consolidated with an interlocutory
appeal of the denial of a motion to dismiss brought on
grounds of foreign sovereign immunity) the district
court's determination that California law applied instead
of Mexican law for personal injury claims arising out of a
plane crash. Mexico law would limit damages and California
law did not limit damages. Id. at 782. None of these
cases expressly analyzed whether or under what circumstances
choice-of-law was a controlling issue of law for purposes of
an interlocutory appeal, but by considering choice of law on
interlocutory appeal, implicitly so found.
there are circumstances, such as in the cases cited by
Defendants, where a choice of law determination is so
fundamental that it is considered controlling for purposes of
§ 1292(b), this case does not involve one of those
situations. Unlike where choice of law results in arbitration
being compelled, the appointment or denial of a receiver, or
other major substantive rights being altered (such as the
ability to bring personal injury tort claims or to assert
unlimited damages versus capped damages), here the
differences between Washington and Oregon wage and hour laws
are not substantial enough to make the choice of law
determination “fundamental” and thus controlling.
See, e.g., ECF 88 at 10 ...