United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
MICHAEL W. MOSMAN CHIEF UNITED STATES DISTRICT JUDGE
February 8, 2019, Magistrate Judge Stacie F. Beckerman issued
her Findings and Recommendation (F&R) , recommending
that Plaintiffs Motion for Leave to Amend  should be
GRANTED in part. Defendant filed Objections  to the
F&R and Plaintiff filed a Response . For the reasons
stated below, I adopt Judge Beckerman's F&R in full.
magistrate judge makes only recommendations to the court, to
which any party may file written objections. The court is not
bound by the recommendations of the magistrate judge, but
retains responsibility for making the final determination.
The court is generally required to make a de novo
determination regarding those portions of the report or
specified findings or recommendation as to which an objection
is made. 28 U.S.C. § 636(b)(1)(C). However, the court is
not required to review, de novo or under any other standard,
the factual or legal conclusions of the magistrate judge as
to those portions of the F&R to which no objections are
addressed. See Thomas v. Am, 474 U.S. 140, 149
(1985); United States v. Reyna-Tapia, 328 F.3d 1114,
1121 (9th Cir. 2003). While the level of scrutiny under which
I am required to review the F&R depends on whether or not
objections have been filed, in either case, I am free to
accept, reject, or modify any part of the F&R. 28 U.S.C.
Select Rehabilitation first objected to Judge Beckerman's
conclusion that Ms. Barber's proposed amendment was not
futile because it plausibly stated a claim under ORS §
659A.030(1)(g). Obj.  at 5-6. In particular, Select
objected to the finding that the Ms. O'Bryant and Mr.
Share ("the Individual Defendants") understood that
they were "aiding in acts of discrimination or
retaliation" because, as human resources employees, they
understood Select's legal obligations under the Oregon
Family Leave Act. See Hernandez v. FedEx Freight,
Inc., No. 2:16-cv-01495-SU, 2017 WL 3120283, at *3 (D.
Or. June 12, 2017). Select argues that these facts are as
consistent with negligence as they are with intent.
"Where a complaint pleads facts that are 'merely
consistent with' a defendant's liability, it
'stops short of the line between possibility and
plausibility of "entitlement to relief"'"
Ashcroftv. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
to amend can be denied as futile where the proposed amendment
would not survive a motion to dismiss for failure to state a
claim. Nordyke v. King, 644 F.3d 776, 788 n.12 (9th
Cir. 2011), reh 'g en banc, 681 F.3d 1041 (9th
Cir. 2012). Therefore, a motion to amend can be denied where
it fails to "state a claim to relief that is plausible
on its face." Twombly, 550 U.S. at 570.
Although the standard is the same, a motion to amend must be
viewed through the lens of the requirement that courts
"freely give leave to amend when justice so
requires." Fed.R.Civ.P. 15(a)(2). In this context, I
agree with Judge Beckerman that Ms. Barber's proposed
First Amended Complaint plausibly states a claim such that
amendment is not futile. The merits of Select's arguments
on the sufficiency of Ms. Barber's claims are more
appropriately addressed in a motion to dismiss. Because
Select's argument that amendment would cause undue
prejudice relies on finding that Ms. Barber has not
sufficiently pleaded liability for aiding and abetting, I
also adopt Judge Beckerman's finding that amendment would
not cause undue prejudice. See F&Rat6.
Select objected to Judge Beckeiman's F&R on the basis
that it ignored the requirement that a plaintiff demonstrate
a causal link between aiding and abetting and the alleged
harm. Obj.  at 7-8. The basis for Select's objection
is unclear, as it challenges the sufficiency of the pleading
rather than the futility of amendment. Again, the merits of
Select's arguments on this point are not appropriate for
resolution in the present motion to amend. For the same
reason, it would be inappropriate to reject Judge
Beckerman's recommendation that the Motion to Amend
should be granted based on Select's arguments that Ms.
Barber (1) pleads facts showing that she was not teiminated,
and (2) failed to plead that she was actually denied leave.
argues that Ms. Barber should not be permitted to amend her
complaint to claim punitive damages, which require an
allegation of "conduct that is culpable by reason of
motive, intent, or extraordinary disregard of or indifference
to known or highly probably risks to others." F&R
 at 5-6 (quoting Andor v. United Air Lines,
Inc., 739 P.2d 18, 25 (Or. 1987)). Because I agree with
Judge Beckerman's recommendation that amendment should be
granted to allow claims that the Individual Defendants had
the intent to discriminate or retaliate, I also agree with
her finding that there is a sufficient basis for pleading
Select objects to Judge Beckerman's finding that it
"may not now challenge the sufficiency of allegations
that also appeared in Barber's original complaint."
F&R  at 3 n.l.
objects on the basis that it has not waived any arguments on
claims that are raised for the first time in Barber's
proposed First Amended Complaint. I agree with Select, but I
fail to discern any disagreement with Judge Beckerman's
finding. In addition, as stated in the F&R, consideration
of Select's challenges to allegations that appeared in
Barber's first complaint would not change the result of
Judge Beckerman's analysis. Therefore, to the extent that
Select presents a meaningful objection to the F&R, I
agree with Judge Beckerman's finding.
review, I agree with Judge Beckerman's recommendation and
I ADOPT the F&R  as my own opinion. Plaintiffs Motion
for Leave to Amend  is GRANTED except with respect to her
proposed aiding and abetting claim retaliation against Ms.