United States District Court, D. Oregon
Michael H. Simon Michael H. Simon United States District
States Magistrate Judge Patricia Sullivan issued Findings and
Recommendation in this case on June 7, 2018. ECF 26. Judge
Sullivan recommended that Defendant's motion for partial
summary judgment be granted and Plaintiff's motion for
certification 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 judge'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 judge'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 judge'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 judge's
recommendations for “clear error on the face of the
record.” For those portions of Judge Sullivan'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 and
those portions are adopted.
timely filed an objection (ECF 28), to which Defendant
responded (ECF 29). Plaintiff objects to the portion of Judge
Sullivan's recommendation finding that Plaintiff may not
bring a negligence per se claim against Defendant
under Oregon law and dismissing that claim. Plaintiff also
objects to the portion of the F&R finding that there is a
sufficient body of controlling Oregon appellate precedent to
deny certification to the Oregon Supreme Court of the
questions of whether Oregon's Unfair Claims Settlement
Practices Act, Or. Rev. Stat. § 746.230, provides the
statutory duty of care necessary to support a claim for
negligence per se or provides an independent
standard of care separate from the insurance contract to
support a tort claim.
relies on this Court's opinion in Foraker v. USAA
Casualty Insurance Co., in which the Court noted that it
believed that the Oregon appellate courts had not
“definitively spoken” on these issues. 2017 WL
3184716, at *7 (D. Or. July 26, 2017). The Court had also
asked the parties in that case whether the Court should
consider certifying to the Oregon Supreme Court the same
questions for which Plaintiff requests certification.
Id. The parties in Foraker did not support
certification and thus the Court did not analyze the
statutory factors relating to certification.
resolving these same issues on the merits in
Foraker, the Court noted that “[a]lthough
there is not an Oregon case directly on point regarding
either of Plaintiff's arguments, Oregon courts have
developed a body of case law regarding an insurer's
liability in tort that informs the Court's
analysis.” Id. at *5. The Court then
determined how it believed the Oregon Supreme Court would
decide the issues, and found that an insured could not bring
a claim for negligence per se against an insurer.
Id. at *7-8.
purposes of the requested certification, Oregon courts need
not have definitively addressed the specific question at
issue in a case directly on point for there to be a
sufficient body of law to constitute controlling precedent.
See Keyes v. Johnson, 2017 WL 6328151, at *5 (D. Or.
Dec. 11, 2017) (“[T]he Oregon Supreme Court does not
require that the Oregon appellate precedent completely
resolve or even directly address the question at issue.
Instead, the Oregon Supreme Court has delegated this
determination to the subjective discretion of the district
court.”); see also W. Helicopter Servs., Inc. v.
Rogerson Aircraft Corp., 311 Or. 361, 366 (1991)
(“The fifth question, on the other hand, is subjective.
It directs the certifying court to satisfy itself that it is
not certifying questions of law already controlled by
existing Oregon appellate precedent.”). Accordingly,
the Court agrees with Judge Sullivan that the Court should
not exercise its discretion to certify the questions
presented by Plaintiff to the Oregon Supreme Court under the
facts of this case.
Court ADOPTS Judge Sullivan's Findings
and Recommendation, ECF 26. Plaintiff's Motion for
Certification of a Question to the Oregon Supreme Court (ECF
14) is DENIED. Defendant's Motion for Partial Summary
Judgment (ECF 12) is GRANTED. Plaintiff's claim for
negligence per se is dismissed.