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Schedler v. Fieldturf USA, Inc.

United States District Court, D. Oregon

January 17, 2018

JOHN SCHEDLER, an individual, Plaintiff,
v.
FIELDTURF USA, INC., a foreign corporation, et al., Defendants.

          David A. Schuck and Leslie E. Baze, Schuck Law, LLC Of Attorneys for Plaintiff.

          Paul E. Loving and Jeremy N. Pyle, Of Attorneys for Defendants.

          OPINION AND ORDER

          Michael H. Simon, District Judge.

         United 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 denied.

         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). 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.”

         Defendants 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.

         DISCUSSION

         A. Interlocutory Appeal

         A court 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.

         1. Controlling question of law

         Defendants 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 government.” Id.

         Defendants 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.

         Although 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 ...


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