United States District Court, D. Oregon, Portland Division
FRIENDS OF THE WILD SWAN INC. and ALLIANCE FOR THE WILD ROCKIES, INC., Plaintiffs,
ROBYN THORSON, Pacific Region Director, U.S. Fish and Wildlife Service, U.S. FISH AND WILDLIFE SERVICE, S.M.R. JEWELL, Secretary, U.S. Department of the Interior, and U.S. DEPARTMENT OF THE INTERIOR, Defendants.
OPINION AND ORDER
MICHAEL W. MOSMAN, CHIEF UNITED STATES DISTRICT JUDGE
April 10, 2019, Magistrate Judge John V. Acosta issued his
Findings and Recommendation (F&R) , recommending that
I deny Plaintiffs' Motion for Leave to File an Amended
Complaint . Plaintiffs filed Objections to the F&R
 and Defendants filed a Response to those Objections
. For the reasons stated below, I adopt Judge
Acosta'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.
previously dismissed Plaintiffs' Complaint  with leave
to amend eight of Plaintiffs' nine claims. Order .
Plaintiffs were allowed twenty-eight days in which to file an
amended complaint. Order . After Plaintiffs failed to
file an amendment, a final judgment was entered. J. .
Plaintiffs then appealed. Notice . After the Ninth
Circuit affirmed the Order dismissing Plaintiffs'
Complaint, Plaintiffs requested leave to file an amended
complaint. Mot. .
Acosta recommends that I dismiss Plaintiffs' Motion for
Leave to File an Amended Complaint  because Plaintiffs
have not demonstrated that the final judgment in this case
should be reopened under Federal Rule of Civil Procedure 60,
a prerequisite to granting a motion to amend under Rule 15.
F&R  at 2. In particular, Judge Acosta found that
Plaintiffs failed to satisfy the requirements of Rule
60(b)(5) or (6). Id. at 6. Under Rule 60(b)(5), a
party seeking relief from a final judgment must show
"changed circumstances." Id. (quoting
Home v. Flores, 557 U.S. 433, 447 (2009)). Under
Rule 60(b)(6), relief from a final judgment is appropriate if
a party can "establish the existence of extraordinary
circumstances." Id. at 9 (quoting Mackey v.
Hoffman, 682 F.3d 1247, 1251 (9th Cir. 2012)).
state only one objection to the F&R: that Judge Acosta
was "incorrect that matters proceeding under the ESA do
not constitute extraordinary circumstances." Obj. 
at 3. Plaintiffs then request that I "confirm the
magistrate judge's finding that [Plaintiffs] may replead
their claims in a new complaint and be heard on the
merits." Id. Defendants' Response urges
that I not review Plaintiffs' Objections because
"Plaintiffs do not actually point to a specific portion
of Judge Acosta's [F&R] to which they object."
Resp.  at 5. Defendants also argue that Plaintiffs
mischaracterize Judge Acosta's F&R by requesting that
I adopt a finding that Plaintiffs may be heard on the merits
if they file a new complaint. Id. at 6. Defendants
object to any order that precludes them from raising defenses
prior to the consideration of a new complaint on the merits.
Id. at 6-8.
Plaintiffs' Objections liberally, I find that they have
made specific objections to the F&R. But I disagree with
Plaintiffs' contention that all cases brought under the
Endangered Species Act meet the "extraordinary
circumstances" requirement to reopen a final judgment
under Rule 60(b)(6). Therefore, I reject the Plaintiffs'
objection to the F&R. I also find that Judge Acosta's
F&R made no predetermination of Plaintiffs' ability
to be heard on the merits if they choose to file a new
reasons described above, I adopt the F&R  as my own
opinion. Plaintiffs' Motion for Leave to File an ...