Hensley v. ZGF Architects, Inc.

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION

LEANNE HENSLEY, Case No. 3:20-cv-00793-JR Plaintiff, OPINION AND ORDER Vv. ZGF ARCHITECTS, an Oregon Corporation, Defendant.

MOSMAN, J., On September 17, 2021, Magistrate Judge Jolie A. Russo issued her Findings and Recommendation (“F&R”) [ECF 79], recommending that this court grant Defendant ZGF Architects, Inc.’s Motion to Dismiss [ECF 69] and dismiss Plaintiff Leanne Hensley’s Second Amended Complaint, but that the dismissal be without prejudice. No party objected to the F&R. Upon review, I agree with Judge Russo’s recommendation to dismiss the complaint. However, I find that the complaint should be dismissed with prejudice. | GRANT the motion and DISMISS Plaintiff's Second Amended Complaint [ECF 55] with prejudice. DISCUSSION The 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

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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 vy. 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 J 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 FRR. 28 U.S.C. § 636(b)(1)(C). Over the course of this case, Plaintiff has filed three different complaints.! Compl. [ECF 1]; Am. Compl. [ECF 24]; Second Am. Compl. [ECF 55]. Each time, Judge Russo has carefully analyzed Plaintiffs complaint and found that it failed to meet the requirements under Fed. R. Civ. P. 8(a). Order [ECF 9]; F&R [ECF 24]; F&R [ECF 79]. However, in the F&R before me, Judge Russo recommends I grant dismissal without prejudice. F&R [ECF 79] at 9 n.2. I disagree. Though “[d]ismissal with prejudice...is a harsh remedy,” that harshness “‘is directly proportionate to the likelihood that plaintiff would prevail if permitted to go forward to trial.” McHenry v. Renne, 84 F.3d 1172, 1178-79 (9th Cir. 1996) (quoting Von Poppenheim v. Portland Boxing & Wrestling Comm’n, 442 F.2d 1047, 1053 n.4 (9th Cir. 1971)). Here, Plaintiff has failed to articulate a claim with any likelihood of success at trial. Instead, she alleges a Title VII action against a company she never worked for and an invasion of privacy claim that lacks even a shadow of the elements of such a claim. See F&R [ECF 79] at 7-8. As such, I find that Plaintiff's complaint cannot “be saved by amendment,” and therefore must be dismissed with prejudice.

! The Court construes Plaintiff's original complaint [ECF 1], which was filed in three parts, see id Ex. 1; id. Ex. 2, as one complaint.

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Ewbank vy. Emrick, 859 Fed. Appx. 147, 149 (9th Cir. 2021) (quoting Eminence Cap., LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003)). CONCLUSION Upon review, I agree with Judge Russo’s recommendation in part, and J ADOPT the F&R [ECF 79] with the exception of its recommendation that the dismissal of the complaint be without prejudice. 1 GRANT Defendant ZGF Architects, Inc.’s Motion to Dismiss [ECF 69] and DISMISS Plaintiff Leanne Hensley’s Second Amended Complaint [ECF 55] with prejudice. ITIS SO ORDER EA DATED this “ZCday of October, 2021. MICHAEL W. MOSMA! United States District Jud ge

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