United States District Court, D. Oregon
Michael H. Simon, District Judge.
States Magistrate Judge Jolie A. Russo issued Findings and
Recommendations on July 23, 2019. ECF 30. Magistrate Judge
Russo recommended that the motion to dismiss (ECF 25) filed
by Avamere Home Health Care LLC, NP2U LLC, Signature Coastal
LLC, Signature Corvallis LLC, Avamere Health Services LLC,
Avamere Group LLC, Avamere Family of Companies, and Does 1-75
(together the “Disputed Defendants”) against Mr.
Casey Covelli (“Plaintiff”) be granted. She
further recommended that the claims against the Disputed
Defendants be dismissed without prejudice. For the reasons
that follow, the Court ADOPTS the Findings
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
Disputed Defendants timely filed an objection, arguing that
Plaintiff's First Amended Complaint (“FAC”)
should be dismissed with prejudice as to the Disputed
Defendants. ECF 37. Plaintiff did not respond. Plaintiff
timely filed objections (ECF 40), to which the Disputed
Defendants responded. ECF 41. Plaintiff does not identify
specific parts of Magistrate Judge Russo's Findings and
Recommendations to which he objects. Rather, Plaintiff mainly
repeats the arguments put forth in his opposition brief to
the Disputed Defendants' motion to dismiss. The Court has
tried to discern specific objections.
seems to object to Magistrate Judge Russo's decision to
rule on the motion to dismiss without first allowing
discovery. He then challenges the definition of
“employer” used to determine FMLA liability in
the Findings and Recommendations. Finally, he argues that the
Court should permit him to use “Doe pleading”
against 75 of the 82 Disputed Defendants-an argument that
Magistrate Judge Russo rejected. The Court has reviewed these
parts of the Findings and Recommendations de novo
and addresses them in turn.
request to proceed with discovery before ruling on the motion
to dismiss was properly denied. “Rule 8 . . . does not
unlock the doors of discovery for a plaintiff armed with
nothing more than conclusions.” Ashcroft v.
Iqbal, 556 U.S. 662, 678-79 (2009). Discovery follows a
properly stated claim-it is not a mechanism through which a
plaintiff obtains enough information to state a claim
properly. As discussed below, Plaintiff fails to state a
the joint employer and integrated employer theories require
assessment of the “totality of the circumstances”
surrounding employment. See Moreau v. Air France,
F.3d 942, 948 (9th Cir. 2004); 29 C.F.R. § 825.104(c).
But the key factor in both tests is the degree of day-to-day
control that the putative employer has over employees.
See Moreau, F.3d at 948 (focusing joint employer
analysis on employer's exercise of control); Grant v.
City & Cty. of San Francisco, 2018 WL
2331907, at *2 (N.D. Cal. May 23, 2018) (noting that
“centralized control of labor relations [is] the most
important” factor in the integrated employment test).
Without allegations that the Disputed Defendants exercised
day-to-day control over Plaintiff, there can be no FMLA
liability under either the joint employer theory or the
integrated employer theory. Plaintiff alleges that some of
the Disputed Defendants share physical addresses, policies,
and management. But Plaintiff does not allege any facts
demonstrating day-to-day control or supervision. The Court
need not consider the agency theory of employment because
Plaintiff did not raise it in the FAC-it appears for the
first time in Plaintiff's objections to Magistrate Judge
Russo's Findings and Recommendations. And even if
Plaintiff had raised this theory in the FAC, he has not
alleged facts sufficient to establish an employer-employee
relationship under the agency theory because the existence of
a principal-agent relationship also turns on whether the
principal controls the day-to-day actions of the agent.
See Mavrix Photographs, LLC v. Livejournal, Inc.,
873 F.3d 1045, 1055 (9th Cir. 2017). Magistrate Judge Russo
correctly considered and rejected each of Plaintiff's
theories of employment.
Judge Russo also correctly concluded that Plaintiff's use
of Doe pleading in the FAC was inappropriate. “Where
the identity of the alleged defendant[ ][is] not [ ] known
prior to the filing of a complaint[, ] the plaintiff should
be given an opportunity through discovery to identify the
unknown defendants.” Wakefield v. Thompson,
177 F.3d 1160, 1163 (9th Cir. 1999) (quotation marks
omitted). There are 75 Doe defendants in the FAC. Plaintiff
identifies about 50 of them by name. Thus, most of the Doe
defendants are not “unknown, ” and Doe pleading
is therefore inappropriate. Even if Doe pleading were
permitted, dismissal would still be the right call because
Plaintiff has not alleged that any of the unnamed defendants
exercised control over him.
Court agrees that the dismissal should be without prejudice.
Although the FAC is factually deficient, it is not clear that
the deficiencies are incurable. Lucas v. Dep't of
Corr., 66 F.3d 245, 248 (9th Cir.1995). Plaintiff
suggests that he has “further supporting facts”
(ECF 40 at 35), and at this point the Court cannot say that
FAC's deficiencies are impossible to cure.
those portions of Magistrate Judge Russo's Findings and
Recommendations 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 Magistrate Judge Russo's
Findings and Recommendations. ECF 30. Disputed
Defendants' Motion to Dismiss (ECF 25) is
GRANTED in part and DENIED
in part. As a result, Plaintiff's Motion to Compel
Discovery (ECF 20) and the Disputed Defendants' Motion
for Protective Order (ECF 23) are DENIED as
moot. The FAC is dismissed without prejudice. Any motion to
amend the FAC shall be filed not later than 14 days from the
date of this order.