United States District Court, D. Oregon
JACK A. DUNN, Plaintiff,
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS; and U.S. BANK, NATIONAL ASSOCIATION, Defendants.
Michael H. Simon, United States District Judge
States Magistrate Judge Youlee Yim You issued Amended
Findings and Recommendation in this case on July 23, 2018.
ECF 27. Judge You recommended that Defendants' motion to
dismiss be granted and this case be dismissed with prejudice.
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
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
judge's recommendations for “clear error on the
face of the record.” Plaintiff timely filed an
objection. ECF 28. Plaintiff argues that the State court
judgment of foreclosure is void and thus Plaintiff can
collaterally attack the judgment in this court without
implicating the doctrine of claim preclusion or the
Rooker-Feldman doctrine. Plaintiff also argues that
Defendants are debt collectors under the Fair Debt Collection
Practices Act, despite case law to the contrary. Finally,
Plaintiff objects to his claims being dismissed with
Court has reviewed de novo those portions of Judge
You's Findings and Recommendation to which Plaintiff has
objected, as well as Plaintiff's objections and
Defendants' response. The Court agrees with Judge
You's reasoning and ADOPTS the Findings and
Recommendation, with one possible exception in the portion
relating to issue preclusion. To the extent Judge You
intended to find issue preclusion relating to the specific
issue of whether MERS was an appropriate beneficiary or had
the authority to assign any purported interest in the context
of a judicial foreclosure, the Court does not find that issue
was actually litigated in State court. The issue of whether
U.S. Bank was the holder of the original Note and held the
beneficial interest in the Deed of Trust at the time of
foreclosure, however, was actually litigated by the State
court, as noted by Judge You.
those portions of Judge You'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.
whether to dismiss this case with or without prejudice, the
Court notes that a dismissal under the
Rooker-Feldman doctrine generally is without
prejudice, although one from which the plaintiff will not be
able to replead in this Court. See White v.
Dobrescu, 651 Fed.Appx. 701, 703 (9th Cir. 2016)
(“Because we affirm the dismissal on the basis of the
Rooker-Feldman doctrine, we treat the dismissal as
one without prejudice.”); see also Kelly v.
Fleetwood Enters., Inc., 377 F.3d 1034, 1036 (9th Cir.
2004) (dismissals for lack of subject matter jurisdiction
should be without prejudice). Dismissals based on claim
preclusion, however, are with prejudice. See Todd v.
Skrah, 2017 WL 3429400, at *4 (D. Or. June 19, 2017),
report and recommendation adopted as modified, 2017
WL 3429387 (D. Or. Aug. 8, 2017), aff'd, 728
Fed.Appx. 745 (9th Cir. 2018) (noting that dismissal is
“with prejudice because claim preclusion forecloses
successive litigation arising from the incident giving rise
to the claim”); Griffin v. Countrywide Home Loan
Servicing, LP, 2012 WL 2017581, at *3 (D. Nev. June 5,
2012), aff'd sub nom. Griffin v. Countrywide Home
Loans Servicing, L.P., 592 Fed.Appx. 586 (9th Cir.
2015), and aff'd sub nom. Griffin v. Countrywide Home
Loans Servicing, L.P., 592 Fed.Appx. 586 (9th Cir. 2015)
((“[T]he Court finds that Plaintiff's claims are
barred by the doctrine of res judicata and claim preclusion
and must therefore be dismissed with prejudice.”).
Accordingly, Plaintiff's claims are dismissed with
Court ADOPTS Judge You's Findings and
Recommendation, ECF 27 with the possible caveat as noted
herein. Defendants' Motion to Dismiss (ECF 7) is GRANTED.
This case is dismissed with prejudice.