United States District Court, D. Oregon
Michael H. Simon, District Judge.
States Magistrate Judge Paul Papak issued Findings and
Recommendation in this case on March 16, 2018. ECF 57. Judge
Papak recommended granting Defendants' motion for partial
judgment on the pleadings on GEICO's request for
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 a partial objection. ECF 59. Plaintiff argues
that Judge Papak erred in finding that the Court does not
have authority to declare Plaintiff's rights under Oregon
Revised Statutes § 746.280 (“Choice of Shop”
statute), that Plaintiff has other sufficient remedies, and
that Plaintiff is seeking an exemption from the Choice of
Shop statute. The Court is not persuaded by Plaintiff's
objections. First, Judge Papak did not find that the Court
does not have the authority to declare Plaintiff's rights
under the Choice of Shop act. Judge Papak noted that the
Court may declare rights under the Federal
Declaratory Judgment Act, and that it is within the
Court's discretion whether to do so. ECF 57 at 4-5. Judge
Papak did not determine it was outside the Court's
authority to declare Plaintiff's rights, status, and
legal relations with respect to Defendants.
the Court agrees with Judge Papak that Plaintiff has other
effective remedies. If Defendants commit a crime in their
treatment of Plaintiff's employees, such as menacing,
assault, or battery, Plaintiff or its employees can contact
law enforcement. Plaintiff can also file a civil suit seeking
damages for harassment or other civil claims. Further,
Plaintiff can seek an injunction, as Judge Papak noted.
the Court finds Plaintiff's argument that it is not
seeking an exemption of the Choice of Shop statute places
form over substance. Plaintiff notes that the words
“exempt” or “exemption” are nowhere
in the complaint. That may be true, but the substance of the
declaratory relief Plaintiff seeks is an exemption from the
statutory requirement that an insurer cannot require its
insured to obtain repairs from a particular location.
Although Plaintiff is not asking that its insureds be
directed to one particular location, it is asking that it
“need no longer conduct commercial activity with
Defendants, notwithstanding Oregon law to the
contrary.” This is contrary to the rights conferred by
the Choice of Shop statute for the insured to select the
motor vehicle repair shop of his or her choice. Or. Rev.
Stat. § 746.280(2). Thus, asking for this relief is
effectively asking for an exemption from the statute.
Court has reviewed de novo those portions of Judge
Papak's Findings and Recommendation to which Plaintiff
has objected, as well as Plaintiff's objections and
Defendants' response. The Court agrees with Judge
Papak'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.”
those portions of Judge Papak'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 Papak's Findings and
Recommendation, ECF 57, except as noted herein.
IS SO ORDERED.
 The Court agrees with Plaintiff that
reporting Defendants to the Oregon Department of Consumer and
Business Services is not a meaningful remedy for Plaintiff,
because Defendant is not the employer of Plaintiff's
employees for whose safety Plaintiff is concerned.
Accordingly, the Court ...