United States District Court, D. Oregon
ANDREW ABRAHAM, on behalf of himself, and for all others similarly situated, Plaintiff,
CORIZON HEALTH, INC., f/k/a Prison Health Services, Inc., Defendant.
OPINION AND ORDER
MICHAEL W.MOSMAN, CHIEF UNITED STATES DISTRICT JUDGE.
October 18, 2019, Magistrate Judge Jolie A. Russo issued her
Findings and Recommendation (“F&R”) [ECF 76],
recommending that Plaintiff's Motion for Leave to File
Amended Complaint [ECF 68] and Motion to Certify Question to
Oregon Supreme Court [ECF 69] be denied. Plaintiff objected
[ECF 78]. Defendant responded. [ECF 79].
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. Arn, 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.
case comes to me on remand from the Ninth Circuit Court of
Appeals. Abraham v. Corizon Health, Inc., 775
Fed.Appx. 301, 303 (9th Cir. 2019). In the first instance,
Mr. Abraham brought claims under the federal Americans with
Disabilities Act, the federal Rehabilitation Act, and Or.
Rev. Stat. § 659A.142, which is the Oregon public
accommodations statute. Compl. [ECF 1]. Mr. Abraham then
filed a Motion for Leave to File Amended Complaint [ECF 30]
in order to request compensatory damages, in light of Judge
Papak's early ruling that Mr. Abraham lacked standing to
seek injunctive relief under § 659A.142. [ECF 16] at
9-10. Magistrate Judge Paul Papak recommended that motion to
amend be denied on the grounds that any claim pursuant to
that statute would be futile because both the statute and its
legislative history show that a private entity like Corizon
is not a “place of public accommodation.” Papak
F&R [ECF 42] at 7-8. I adopted the Papak F&R and
denied Mr. Abraham's motion to amend his complaint.
O&O [ECF 50].
appeal, the Ninth Circuit wrote the following with respect to
my denial of Plaintiff's motion to amend:
Abraham argues that the district court erred in denying his
motion to amend his Oregon Revised Statute § 659A.142
claim as futile because, contrary to the court's
conclusion, Corizon is a “place of public
accommodation, ” as defined by § 659A.400. Oregon
courts have yet to address whether a private contractor like
Corizon constitutes a “place of public
accommodation.” It also appears that the district court
did not consider whether there existed independent or
supplemental jurisdiction over Abraham's § 659A.142
claim when it granted a summary judgment to Corizon on
Abraham's final federal claim. We therefore vacate the
district court's order denying Abraham's motion to
amend as futile and remand for the court to consider its
jurisdiction over Abraham's § 659A.142 claim in the
first instance. See Brigham v. Eugene Water & Elec.
Bd., 357 F.3d 931, 942 n.19 (9th Cir. 2004) (“[W]e
also remand the employees' state-law claims to the
district court for reconsideration-including whether the
exercise of supplemental jurisdiction over such claims is
appropriate in the first instance given the paucity of state
law authority on the precise topic at issue in this
litigation.” (citing 28 U.S.C. § 1367(c))).
Abraham, 775 Fed.Appx. at 303.
only explicit instruction in this passage directs me to
“consider [my] jurisdiction over Abraham's §
659A.142 claim in the first instance.” Id.
Judge Russo issued an order finding that the court had
diversity jurisdiction. [ECF 64]. That order resolved the
primary-and, arguably, only-issue on vacatur. No. party has
objected to Judge Russo's order, and I ADOPT her
jurisdictional finding as my own.
second possible issue on remand is futility. The Ninth
Circuit noted that “Oregon courts have yet to address
whether a private contractor like Corizon constitutes a
‘place of public accommodation.'”
Abraham, 775 Fed.Appx. at 303. It is not clear from
the context whether this statement informs the jurisdictional
question or the futility inquiry. There is an argument for
both readings. Whether Oregon courts have resolved the issue
could be relevant to whether this court has supplemental
jurisdiction over the claim. 28 U.S.C. § 1367(c)(1)
(“The district courts may decline to exercise
supplemental jurisdiction over a claim . . . if the claim
raises a novel or complex issue of State law.”).
Indeed, the Abraham court cited to Brigham v.
Eugene Water & Electric Board with the apparent
intent of making this point. 357 F.3d 931, 942 n. 19 (9th
Cir. 2004). Read this way, the court's statement about
the Oregon courts having not resolved the
public-accommodation issue could be read as providing grounds
for this court to decline exercising supplemental
jurisdiction. This reading would render the point moot,
as this court is sitting in diversity on this claim.
second reading of the Abraham court's statement
would tie it to the substantive issue of futility and whether
a private entity such as Corizon could be a place of public
accommodation for purposes of Oregon state law. It is not
clear from the Abraham opinion that this was an
issue for this court to reconsider on remand, as the only
direction to this court was to consider its jurisdiction of
the claim. However, the phrasing of the Ninth Circuit's
analysis on this issue suggests that it may be implying that
the claim cannot be futile unless state law provides a
definitive answer. Assuming I was meant to reconsider the
futility question on remand, I concur with Judge Papak's
and Judge Russo's reasoning. This court is as equipped to
interpret § 659A.142 as is the Oregon Supreme Court.
This is especially so because this court is sitting in
diversity, and in that posture, it resolves difficult
questions of state law on a frequent basis. I therefore ADOPT
Judge Russo's F&R and hold that any complaint brought
under § 659A.142 would be futile because Corizon is not
a place of public accommodation.
in an abundance of caution, Judge Russo has carefully
considered the question of certification to the Oregon
Supreme Court. While nothing in the Ninth Circuit's order
of remand required that analysis, I agree with her that such
a suggestion may be found in the ...