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requiring "element to the detention such as using deliberate and systematic tactic to threaten and frighten the plaintiff into a confession, or cold-blooded . . . interrogation upon scanty evidence"
Summary of this case from Pope v. Rostraver Shop SaveOpinion
No. 05-CV-689-PK.
September 19, 2006
CEDRIC R. BROWN, Portland, OR, Attorney for Plaintiff.
STEPHEN P. MCCARTHY, Lane Powell, PC, Portland, OR, Attorneys for Defendant.
ORDER
Magistrate Judge Paul Papak issued Findings and Recommendation (#68) on August 14, 2006, in which he recommended the Court grant Defendant Nordstrom's Motion for Summary Judgment (#43) as to Plaintiff's claims for intentional infliction of emotional distress and violations of 42 U.S.C. § 1981, 42 U.S.C. § 2000a, and Or. Rev. Stat. § 659A.403. The Magistrate Judge also recommended the Court decline to exercise supplemental jurisdiction over Plaintiff's claims for false imprisonment and assault. The matter is now before this Court pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b). Plaintiff filed timely objections to the Findings and Recommendation. The matter is now before this Court pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b).
When any party objects to any portion of the Magistrate Judge's Findings and Recommendation, the district court must make a de novo determination of that portion of the Magistrate Judge's report. 28 U.S.C. § 636(b)(1). See also United States v. Bernhardt, 840 F.2d 1441, 1444 (9th Cir. 1988); McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981), cert. denied, 455 U.S. 920 (1982). Because the objecting party did not arrange for the transcription of the record pursuant to Fed.R.Civ.P. 72(b) nor did any party protest the lack of a transcript, the Court did not review a transcript or tape recording of the proceedings before the Magistrate Judge as part of the Court's de novo review. See Spaulding v. Univ. of Wash., 686 F.2d 1232, 1235 (9th Cir. 1982).
Plaintiff contends in her Objections to the Findings and Recommendation that the Court should exercise supplemental jurisdiction over her claims for false imprisonment and assault because the statute of limitations has run on these claims and, therefore, Plaintiff would be precluded from filing them in state court.
Plaintiff's contention is not well taken. As the Supreme Court explained in Jinks v. Richland County, S.C.:
To prevent the limitations period on . . . supplemental claims from expiring while the plaintiff was fruitlessly pursuing them in federal court, [28 U.S.C.] § 1367(d) provides a tolling rule that must be applied by state courts: "The period of limitations for any claim asserted under subsection (a), and for any other claim in the same action that is voluntarily dismissed at the same time as or after the dismissal of the claim under subsection (a), shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period."538 U.S. 456, 459 (2003) (quoting 28 U.S.C. § 1367(d)). "Section 1367(d) replaces this selection of inadequate choices [that existed prior to its enactment] with the assurance that state-law claims asserted under § 1367(a) will not become time barred while pending in federal court." Id. Accordingly, the statute of limitations on Plaintiff's claims for false imprisonment and assault is tolled for at least 30 days after this Court declines to exercise supplemental jurisdiction and dismisses those claims without prejudice.
This Court has reviewed the pertinent portions of the record de novo, does not find any error in the Magistrate Judge's Findings and Recommendation, and adopts the Findings and Recommendation.
CONCLUSION
The Court ADOPTS Magistrate Judge Papak's Findings and Recommendation (#68). Accordingly, the Court GRANTS Defendant's Motion for Summary Judgment (#43) as to Plaintiff's claims for intentional infliction of emotional distress and violations of 42 U.S.C. § 1981, 42 U.S.C. § 2000a, and Or. Rev. Stat. § 659A.403 and declines to exercise supplemental jurisdiction over Plaintiff's claims for false imprisonment and assault. The Court, therefore, DISMISSES Plaintiff's claims for intentional infliction of emotional distress and violations of 42 U.S.C. § 1981, 42 U.S.C. § 2000a, and Or. Rev. Stat. § 659A.403 with prejudice and DISMISSES Plaintiff's claims for false imprisonment and assault without prejudice.
IT IS SO ORDERED.