Kaiser et al v. Cascade Capital LLC et al, No. 3:2016cv00744 - Document 86 (D. Or. 2017)

Court Description: OPINION and ORDER - Because Plaintiffs' claims are now STAYED pending arbitration, the matters raised in Defendants' Motion to Dismiss 19 are moot. The Court, therefore, DECLINES TO ADOPT the Magistrate Judge's F&R 71 and DENIES De fendants' Motion to Dismiss (19] as moot with leave to renew in the event that the arbitrator concludes Plaintiffs' claims are not subject toarbitration. IT IS SO ORDERED. DATED this 31st day of August, 2017. Signed on 8/31/17 by Chief United States District Judge Michael W. Mosman. (peg)

Download PDF

Kaiser et al v. Cascade Capital LLC et al Doc. 86 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION MICHAEL KAISER and MARGARET J. LOEWEN, on behaH of themselves and Others similarly situated, No. 3:16-cv-00744-AC OPINION AND ORDER Plaintiffs, v. CASCADE CAPITAL, LLC, and GORDON AYLWORTH & TAMI, P.C., Defendants. MOSMAN,J., On May 25, 2017, Magistrate Judge John V. Acosta issued his Findings and Recommendation [71], in which he recommended that the Court (1) deny Defendants' Motion to Dismiss [19] pursuant to Federal Rule of Civil Procedure 12(b)(l) for lack of subject-matter jurisdiction and (2) grant in part and deny in part Defendants' Motion pursuant to Rule 12(b)(6) for failure to state a claim. In particular, the Magistrate Judge recommended the Court grant Defendants' Rule 12(b)(6) Motion as to Plaintiffs claims under the Fair Debt Collection Practices Act (FDCPA) §§ 1692d, 1692e(5), 1692e(9), and 1692f(l); as well as Plaintiffs' common-law intentional infliction of emotional distress claim. The Magistrate Judge further recommended the Cami deny Defendants' Rule 12(b)(6) Motion as to Plaintiffs' claims under the FDCPA 1 - OPINION AND ORDER Dockets.Justia.com §§ 1692e, 1692e(2); 1692e(10); 1692f. Moreover, the Magistrate Judge recommended the Court find that 15 U.S.C. §§ 1692-1692(p) are not unconstitutionally vague, deny Defendants' Motion to Strike paragraph 18 ofF'irst Amended Complaint, and grant Defendants' Motion to Make More Definite and Certain. 1 On June 28, 2017, Plaintiffs filed Objections to the Magistrate Judge's F&R [80], and, on June 30, 2017, Defendants filed their own Amended Objections [81] to the F&R. 2 Defendants responded [82] to Plaintiffs Objections and, in turn, Plaintiffa responded [83] to Defendants' Objections. DISCUSSION The magistrate judge makes only reconnnendations 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. 1be Com\ is generally required to make a de nova determination regarding those portions of the report or specified findings or recommendations as to which an objection is made. 28 U.S.C. § 636(b)(l)(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 with which the Court is required to review the F&R depends on whether or not objections have been filed, in either case, the Comi is free to accept, reject, or modify any part of the F&R. 28 U.S.C. § 636(b)(l)(C). 1 Defendants made their Motion to Strike paragraph 18 of First Amended Complaint and Motion to Make More Definite and Certain in the course of briefing on the Motion to Dismiss. 2 Defendants originally filed their Objections [78] on June 28, 2017. Those Objections were superseded by Defendants' Amended Objections. 2 - OPINION AND ORDER Since the Magistrate Judge issued the F&R and the parties filed their Objections, however, this Court adopted the Magistrate Judge's March 27, 2017, Findings and Recommendation [56] in which the Magistrate Judge recommended the Court grant Defendants' Motion to Compel Arbitration [16] on the basis that an arbitrator must first determine whether the claims raised in Plaintiffs' First Amended Complaint are subject to arbitration. See Opinion and Order [85] (Jul. 12, 2017). The Court, therefore, stayed Plaintiffs' claims pending completion of the arbitration. Because Plaintiffs' claims are now stayed pending arbitration, the matters raised in Defendants' Motion to Dismiss [19] are moot. The Court, therefore, DECLINES TO ADOPT the Magistrate Judge's F&R [71] and DENIES Defendants' Motion to Dismiss (19] as moot with leave to renew in the event that the arbitrator concludes Plaintiffs' claims are not subject to arbitration. IT IS SO ORDERED. DATED this 3 - OPINION AND ORDER of August, 2017.

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.