Opinion
6:22-cv-01462-MK
06-08-2023
SAVE ARNOLD CANAL, an Oregon NonProfit Corporation; R. MARK ELLING; JEROME RUDLOFF; DEBRA RUDLOFF; and RALPH H. EMERSON, III, Plaintiffs, v. ARNOLD IRRIGATION DISTRICT; RONALD ALVARADO; and NATURAL RESOURCES CONSERVATION SERVICE, Defendants.
FINDINGS AND RECOMMENDATION
MUSTAFA T. KASUBHAI (HE / HIM) UNITED STATES MAGISTRATE JUDGE
Plaintiffs Save Arnold Canal, Mark Elling, Jerome Rudloff, Debra Rudloff, and Ralph Emerson (collectively, “Plaintiffs”) filed this action for declaratory and injunctive relief against defendants Arnold Irrigation District, Ronald Alvarado, and the Natural Resources Conservation Service (collectively, “Defendants”). Plaintiffs' First Amended Complaint (ECF No. 22) alleges four claims for relief, including violations of National Environmental Policy Act (“NEPA”); improper expansion of an easement; private nuisance; and Watershed and Flood Prevention Act violations under the Administrative Procedures Act (“APA”). Defendant Arnold Irrigation District (“Defendant') filed a motion to dismiss Plaintiff's second and third claims pursuant to Fed.R.Civ.P. 12(b)(1), 12(b)(6), 12(b)(7) and 17 or, in the alternative, to strike and make more definite pursuant to Fed.R.Civ.P. 12(e)-(f). ECF No. 29. Oral argument was scheduled for June 26, 2023, but the Court determined that, given the parties' well-briefed motions, no further information was required to come to a recommendation. For the reasons stated, Defendant's motion to dismiss should be granted in part. Defendant's motions to strike and to make more definite should be denied.
BACKGROUND
This action arises out of a funding decision by defendant Natural Resources Conservation Service (“NRCS”) authorizing the Arnold Irrigation District Modernization Project (“Modernization Project”). The Modernization Project proposes the installation of piping along approximately 11.9 miles of the Arnold Main Canal, an irrigation canal in Deschutes County on the southern outskirts of Bend, Oregon. The stated purpose of the Modernization Project is to improve water conservation within the Arnold Irrigation District, improve water supply management and delivery reliability to District patrons, and improve public safety along the Arnold Main Canal. The Modernization Project is to be funded in part by NCRS under the Watershed Protection and Flood Prevention Act, PL 83-566.
The area impacted by the Modernization Project includes suburban, low-density rural, and rural residential properties. Ninety-nine percent of the impacted Project area is constituted by privately-owned properties, each of which are burdened by easements held by the Arnold Irrigation District (“AID”). AID is an Oregon quasi-municipal irrigation district organized under Oregon Revised Statute Chapter 545. AID claims easements for irrigation purposes across approximately 433 private parcels, including those owned by Plaintiffs Elling, Rudloff, and Emerson, under the Canal Act of 1891, the Carey Desert Land Act of 1894, and private easement grants. The parties dispute the scope of these easements.
Plaintiff Save Arnold Canal (“SAC”) is an Oregon non-profit corporation formed in 2021 with the purpose of organizing property owners along the Arnold Main Canal to work with AID and federal agencies to seek mutually beneficial alternatives to the Modernization Project. SAC represents over 200 members and supporters who own private property along the Arnold Main Canal and enjoy its various benefits, which include riparian vegetation and wildlife habitat and property valuation premiums. FAC at 6. Plaintiffs allege that the Modernization Project will negatively affect or eliminate these benefits. Id.
Defendant NRCS is an agency of the United States and a division of the United States Department of Agriculture. NRCS subcontracted the drafting of a Draft Watershed Plan-Environmental Assessment (“Draft-Plan EA”) as required by the National Environmental Policy Act (“NEPA”) prior to implementing the Modernization Project. Plaintiffs participated in the NEPA administrative process by submitting comments to NRCS on the Draft-Plan EA in July 2021. During the open comment period, NRCS received over four hundred comments totaling over 1200 pages of commentary.
Following the open comment period, NRCS considered nine alternatives to the Modernization Project. NRCS eliminated seven of these alternatives and analyzed two: the “No Action Alternative,” and the “Piping Alternative.” On August 8, 2022, Defendant Ronald Alvarado signed a Finding of No Significant Impact for Arnold Irrigation District Infrastructure Modernization Project Deschutes County, Oregon (“FONSI”) and selected the Piping Alternative as the preferred alternative, allowing the Modernization Project to move forward. Alvarado noted the Piping Alternative was AID's preferred alternative and the National Economic Efficiency Alternative. Plaintiffs again submitted comments to NRCS regarding the final environmental assessment, titled the Watershed Plan-Environmental Assessment (“Plan-EA”) in September 2022. On December 6, 2022, Defendant NRCS authorized federal assistance for the Modernization Project. FAC at 7. As the local sponsor of the Modernization Project, AID will receive federal funding to design and install the piping described in Plan-EA. FAC at 5-6.
Plaintiff filed this action against all Defendants on September 28, 2022, alleging violations of the NEPA and the Administrative Procedures Act (“APA”), as well as claims against AID for private nuisance and improper expansion of an easement. Plaintiffs allege that Defendants acted arbitrarily and capriciously and in violation of Plaintiffs' constitutional rights by adopting the Plan-EA and signing the FONSI. Plaintiffs also challenge Defendants' alleged actions in authorizing, planning, and implementing the Modernization Project as private nuisance and improper expansions of the scope of easements held by AID.
DISCUSSION
Defendant argues that Plaintiff's second and third claims for relief should be dismissed or, in the alternative, made more definite. Defendant also argues that all of Plaintiffs' takings-related claims should be dismissed.
I. Second Claim for Relief: Improper Expansion of an Easement
Plaintiffs' Second Claim for Relief alleges “improper expansion of easement” against Defendant AID and asks the Court to “declare that the plan to excavate and bury large irrigation piping under the bed of the [Arnold] canal exceeds the scope of the easement possessed by AID and enjoin the project as contemplated in the Plan-EA.” FAC at 14. AID argues that Plaintiffs' second claim should be dismissed because (1) Plaintiffs failed to join all parties in interest; (2) Plaintiffs' second claim is a takings claim and equitable relief is therefore inappropriate; (3) Plaintiff Save Arnold Canal is not a real party in interest and lacks standing to bring this claim.
A. Failure to Join All Parties in Interest
Defendant argues that Plaintiffs' second claim for relief should be dismissed pursuant to Fed.R.Civ.P. 12(b)(7) and Fed.R.Civ.P. 19 because Plaintiff has failed to join all parties in interest, the approximately 433 property owners whose property abuts Arnold Canal. Defendant argues that because the unnamed property owners will not be bound by the Court's ruling in this action, Defendant could be exposed to future litigation and, potentially, to conflicting judgments regarding the scope of AID's easements on these estates. ECF No. 24, citing Smith v. Bayer, 564 U.S. 299 (2011) (nonparties can be bound only in properly conducted class actions). Defendant contends that joinder is necessary under Rule 19(a)(1)(B)(ii) because Plaintiffs' requested declaratory relief subjects AID to “substantial risk of incurring double, multiple, or otherwise inconsistent obligations” to the non-parties who own property within the Arnold Irrigation District and affected by the Modernization Project.
FRCP 12(b)(7) authorizes dismissal for failure to join a party under FRCP 19.
Rule 19(a)(1)(B)(ii) provides that a person must be joined as a party if the person “claims an interest relating to the subject of the action and is so situated that disposing of the action in the person's absence may ... leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest.” In U.S. v. Bowen, the Ninth Circuit clarified that joinder under Rule 19(a)(1)(B)(ii) is “contingent ... upon an initial requirement that the absent party claim a legally protect interest relating to the subject matter of the action.” 172 F.3d 682, 689 (9th Cir. 1999) (quotations omitted; emphasis in original). Five years earlier in U.S. ex rel. Morongo Band of Mission Indians v. Rose, the Ninth Circuit noted that the purpose of Rule 19(a) “is to protect the legitimate interests of absent parties, as well as to discourage multiplicitous litigation.” 34 F.3d 901, 908 (9th Cir. 1994). In that case, the court rejected a defendant's attempt to join an absent party, noting that it was “inappropriate for one defendant to attempt to champion [the] absent party's interests.” Id. at 908; see also Thomas, Head and Greisen Employees Trust v. Buster, 95 F.3d 1449, 1460 n. 18 (9th Cir. 1996) (holding that a party was not indispensable to the court's proceedings because that party “had not claimed an interest” in the defendant's partnership). Here, because the nonparty property owners have not asserted an interest in this case, the Court finds that joinder under Rule 19 is not required. See U.S. v. Bowen, 172 F.3d at 689 (“Defendant contends that a claim of interest is not required. Our precedent declares otherwise”).
Even if a party does not claim a legally protected interest in an action, joinder may be required under Rule 19 when “complete relief is not possible without the absent party's presence.” Yellowstone County v. Pease, 96 F.3d 1169, 1172 (9th Cir. 1996); U.S. v. Bowen, 172 F.3d at 688. “In conducting a Rule 19(a)(1) analysis, the court asks whether the absence of the party would preclude the district court from fashioning meaningful relief as between the parties.” Disabled Rights Action Comm. v. Las Vegas Events, 375 F.3d 861 (9th Cir. 2004). Here, Plaintiffs' requested relief would simply prevent AID from improperly expanding its existing easements within the Modernization Project area. The Court therefore finds that complete relief is possible without the joinder of the nonparty property owners.
Defendant also argues that joinder of the remaining canal-hosting properties is necessary under Oregon law to establish Plaintiffs' standing for declaratory relief. Oregon law requires that, when an action seeks declaratory relief, “all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding.” O.R.S. 28.110. If Plaintiffs prevail on their second claim for relief by showing that AID improperly expanded an easement, however, that adjudication would bind AID with respect to the scope of its easement rights, not the remaining property owners. Even if, as Defendant speculates, a nonparty property owner agreed to AID's use of their property for the Modernization Project, that would not subject AID to inconsistent obligations. Rather, it would be consistent with a declaration by this Court of improper expansion of an easement because any express permission by a property owner would create a new, express easement. Any future express easement created by Defendant and a nonparty property owner is not at issue in this case. In sum, any nonparty property owner's rights to create an express easement that expands the scope of AID's property rights will not be affected by any outcome in this action. Rather, Plaintiffs' requested declaratory judgment would limit AID's rights over the servient estates.
B. Takings Claim
Defendant next argues that Plaintiffs' second claim for relief should be dismissed because it is a takings claim and that therefore the equitable relief sought is inappropriate. FRCP 12(b)(6) authorizes dismissal for failure to state a claim upon which relief can be granted. To assess a FRCP 12(b)(6) motion, a court takes all allegations of material fact in the complaint as true, construes them in the light most favorable to the nonmoving party, and determines whether they state a claim for relief that is plausible on its face. Gilstrap v. United Air Lines, Inc., 709 F.3d 995, 1003 (9th Cir. 2013). If the allegations do not state a plausible claim for relief, dismissal is appropriate under FRCP 12(b)(6).
The Court must accept the complaint's factual allegations as true and construe those facts in the light most favorable to the non-movant, id., but the court is “not bound to accept as true a legal conclusion couched as a factual allegation,” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). To survive a motion to dismiss, a complaint must contain sufficient factual matter that “state[s] a claim to relief that is plausible on its face.” Id. at 570. A claim is plausible on its face when the factual allegations allow the court to infer the defendant's liability based on the alleged conduct. Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). The factual allegations must present more than “the mere possibility of misconduct.” Id. at 678.
In Knick v. Township of Scott, 139 S.Ct. 2162 (2019), the United States Supreme Court observed that equitable relief is “generally unavailable” under a takings claim. The Court explained that given the availability of post-takings compensation to property owners who have suffered a taking, “[a]s long as an adequate provision for obtaining just compensation exists, there is no basis to enjoin the government's action effecting a taking.” Id. at 2176. Here, Plaintiffs ask the court for a declaration that the Modernization Project “exceeds the scope of [AID's] easement” and an injunction enjoining AID's implementation of the Modernization Project. FAC at 17. The requested declaratory and injunctive relief are equitable remedies. See Bayer v. Neiman Marcus Grp., 861 F.3d 853, 864 (9th Cir. 2017).
In response, Plaintiffs assert that their second claim for relief is not a takings claim, but rather a quiet title action. ECF No. 29 at 5. To properly plead a quiet title action under O.R.S. 105.605, a party must allege a legal or equitable interest in the real property at issue that is adverse to the interest asserted by the party against whom the quiet title is sought, and that the property is not in the actual possession of another. See Yaquina Bay Timber & Logging Co. v. Shiny Rock Mining Corp., 276 Or. 779, 781 (1976) (discussing necessary allegations in complaint to quiet title). Here, contrary to AID's allegation that the property at issue is AID's easement and therefore in AID's actual possession, the estates burdened by AID's alleged easements form the basis of the individual plaintiffs' standing to bring a quiet title action. Plaintiffs have alleged a legal or equitable interest in real property along the Arnold Canal and have also alleged that their interests are adverse to AID's asserted easements allowing the Modernization Project. However, while Plaintiffs have alleged that they enjoy the benefits of the Arnold Canal, Plaintiffs have not explicitly alleged that the real property at issue is not in the actual possession of another. See Yaquina Bay Timber & Logging Co., 276 Or. At 783 (occasional or sporadic use is insufficient to show actual possession).
On this record, the Court finds that Plaintiffs have failed to plead a quiet title action under O.R.S. 105.605. Defendant's motion to dismiss Plaintiffs' second claim for relief under Rule 12(b)(6) should therefore be granted. As explained below, only the individual Plaintiffs should be granted leave to amend their second claim for relief.
C. Organizational Standing
Defendant also argues that Plaintiff SAC is not a real party in interest and lacks standing to bring Plaintiffs' second claim for relief, and that therefore the second claim for relief should be dismissed as to SAC. FRCP 12(b)(1) authorizes dismissal for lack of subject matter jurisdiction. Standing pertains to a federal court's subject matter jurisdiction under Article III, therefore, it is properly raised in a motion to dismiss under FRCP 12(b)(1). White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). A subject matter jurisdiction attack under FRCP 12(b)(1) may be either facial or factual. Safe Air For Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). “In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction.” Id. To resolve a FRCP 12(b)(1) facial attack, a court looks solely to the allegations in the complaint, assumes the allegations are true, and draws all reasonable inferences in the plaintiff's favor. Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004). If the allegations do not establish subject matter jurisdiction, the court may dismiss the complaint under FRCP 12(b)(1). Black Pearl v. Weid, 2009 U.S. Dist. LEXIS 94024, *5 (D. Or. 2009) (citing Savage v. Glendale Union High Sch. Dist. No. 205, 343 F.3d 1036, 1040 (9th Cir. 2003).
Plaintiffs argue that they properly seek declaratory and injunctive relief on behalf of SAC's members, asking the Court to apply the test for representational standing set out by the Oregon Court of Appeals in 1000 Friends of Oregon v. Multnomah County, 593 P.2d 1171, 39 Or.App. 917 (Or. App. 1979). In that case, the Oregon Court of Appeals applied a three-pronged test for organizational standing derived from federal common law representational standing requirements. That test considered whether the organizational plaintiff's “(1) members would otherwise have standing to sue in their own right; (2) the interests it seeks to protect are germane to the organization's purpose; and (3) neither the claim asserted, nor the relief requested, requires the participation of individual members in the lawsuit.” Id. at 923-24. In Benton County v. Friends of Benton County, 2 94 Or. 79, 81-82 (1982), however, the Oregon Supreme Court noted that it had not “examined or approved the concept of ‘representational standing'” formulated by the Appellate Court in 1000 Friends and noted that standing is not common-law but is derived from statute. Id. at 82-84; see Local No. 290 v. Dept. of Environ. Quality, 3 23 Or. 559, 567 (1996) (examining the text and context of statute to determine availability of representational standing).
FRCP 17(b)(2) provides that a corporation's capacity to sue is determined by the law under which it was organized. As an Oregon corporation, SAC's capacity to sue is determined by Oregon law. In Oregon Taxpayers United PAC v. Keisling, 143 Or.App. 537 (1996), the Oregon Appellate Court set out the appropriate inquiry for representational standing in a declaratory judgment action in Oregon. Id. at 545. In that case, the Court analyzed the text and context of the statute underlying the plaintiffs' claims to determine whether the operative statute permitted representational standing, and found that under Oregon law, an organization cannot seek declaratory relief on behalf of its members. Id. at 543 (observing that “the text of [Oregon's declaratory judgment] statute makes no mention of “representational standing”).
Here, because Plaintiffs assert that their second claim for relief is a quiet title action and requests declaratory relief, the Court looks to O.R.S. 105.605 and O.R.S. 28.020, the Oregon quiet title statute and declaratory relief statute, respectively. O.R.S. 105.605 does not expressly permit representational standing, and there are no Oregon decisions indicating otherwise. Further, the Oregon Court of Appeals determined in Oregon Taxpayers United PAC that O.R.S. 28.020 does not permit representational standing. 143 Or.App. At 542-43. On this record, the Court finds that Plaintiffs' second claim for relief should be dismissed with prejudice as to Plaintiff SAC.
II. Third Claim for Relief: Private Nuisance
Plaintiffs' third claim for relief alleges private nuisance against AID and states that AID's impermissible easement modifications “unreasonably interfere with property owners' private use and enjoyment of their land through the elimination of vegetation and the desertification caused by the Modernization Project.” FAC at 15. Plaintiffs ask the Court to declare that AID “will create a private nuisance on private property” and to enjoin AID from creating a private nuisance by implementing the Modernization Project. FAC at 22. Defendant argues that Plaintiff's third claim for relief should be dismissed or, in the alternative, made more definite because Plaintiff SAC lacks standing to bring this claim against AID.
Standing “is not a matter of common law but is, instead, conferred by the legislature.” Local No. 290 v. Dept. of Environ. Quality, 323 Or. 559 (1996). As discussed above, to determine whether an organization has representational standing to sue on behalf of its members, a court must determine whether the statute under which it brings suit allows it to do so. Id., 323 Or. at 565-67. Here, Plaintiffs have not pointed to any Oregon statute that allows an organization to bring suit; rather, Plaintiffs again argue that SAC has standing under the Oregon Court of Appeal's holding in 1000 Friends of Oregon v. Multnomah County, Land Conservation and Development Commission, 593 P.2d 1171, 39 Or.App. 917 (Or. App. 1979). As noted above, however, the Oregon Supreme Court clarified in Benton County that it had not approved of the representational standing requirements adopted in 1000 Friends. 294 Or. at 81-82. The Court therefore adopts the statutory test for standing indicated by the Oregon Supreme Court in Benton County. Id.; see also Rendler v. Lincoln County, 302 Or. 177, 180 (1986) (stating that “the definition of parties and interests that qualify for different judicial remedies must be sought in statutes rather than in generalized notions of ‘standing' or federal cases interpreting Article III of the United States Constitution”).
The statute under which Plaintiff's third claim for relief is alleged, O.R.S. 105.505, allows “[a]ny person whose property or personal enjoyment thereof is affected by a private nuisance [to] maintain an action for damages therefor.” The statute does not contain language allowing for representational standing. Rather, “[t]he gist of the action is the invasion of the individual's interest in the use and enjoyment of land.” Macca v. General Tel. Co. of Northwest, 495 P.2d 1193, 262 Or. 414 (1972). Plaintiffs have not alleged that SAC holds any legal interest in real property. On this record, the Court finds that SAC lacks standing to bring a claim under O.R.S. 105.505 and that Plaintiffs' third claim for relief should be dismissed as to Plaintiff SAC.
III. Motion to Strike Takings Claims Under Rule 12(f)
Defendant also argues that all of Plaintiffs' “takings claims” should be stricken pursuant to FRCP 12(f). Rule 12(f) provides that “[t]he court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Here, AID argues that the FAC contains multiple allegations which implicate the Takings Clause of the Oregon Constitution and the Fifth Amendment to the U.S. Constitution. These clauses provide that the government shall not take private property for public use without just compensation. U.S. Const. amend. V; Oregon Const. art. I, sect. 18. Specifically, Defendant moves to strike the following allegations within Plaintiffs' FAC:
FAC at 2, second paragraph: “Plaintiffs further challenges the actions of Defendant Arnold Irrigation District in authorizing, planning, and implementing the Modernization project contemplates unconstitutional takings under the United States and Oregon Constitutions[.]
FAC ¶29: “The Plan-EA states ‘AID would not need to acquire any additional easements for the installation of the proposed project,' meaning that they do not contemplate compensating property owners for expanding the scope of the easement along the length of the project.”
FAC ¶30: “The United States Constitution provides in the Fifth Amendment, as incorporated to the States by the Fourteenth Amendment, that ‘nor shall private property be taken for public use, without just compensation.' The Fourteenth Amendment also states ‘nor shall any state deprive any person of life, liberty, or property, without due process of law.'”
FAC ¶31: “Article I, Section 18 of the Oregon Constitution states that ‘[p]rivate property shall not be taken for public use, nor the particular services of any man be demanded without just compensation...'”
FAC ¶32: “AID as a quasi-municipal agency, [is a] State actor[] subject to the restrictions of converting private property to public use under the United States and Oregon Constitutions.”
FAC ¶33: “The Plan-EA contemplates a violation of the Fifth Amendment of the U.S. Constitution and Article I, Section 18 of the Oregon Constitution by proposing in the Plan-EA to excavate and bury a 48 to 60 inch pipe below the bed of the canal and installing excavated and buried concrete structures at the beginning of the canal, which exceeds the limits of the grants under the Carey Desert Land Act and the Canal Act, and will be a physical intrusion onto the private property.”
FAC ¶47: “Defendants have not initiated condemnation proceedings[.]”
FAC ¶48: “Defendants are not planning on compensating the planned expanded public use of their right of way grants as the Plan-EA states ‘AID would not need to acquire any additional easements for the installation of the proposed project.'”
FAC ¶50: “To the extent that Defendant AID actually excavates and emplaces a buried pipe on private property for public uses, Defendant AID must compensate private landowners for the expanded use.”Plaintiffs argue that the majority of these statements relate to Plaintiffs' APA claims and PL 83566 claims in their first and fourth claims for relief. The Court is satisfied that the statements identified by Defendant are reasonably related to the issues in question and to the claims being asserted. FRCP 12(f). Therefore, Defendant's motion to strike Plaintiffs' “takings claims” should be denied.
IV. Motion to Make More Definite Under Rule 12(e)
Defendant argues, finally, that the allegations in Plaintiffs' First Amended Complaint concerning the relief sought are impermissibly vague as to the scope of the relief requested. While the FAC states specific allegations as to the properties owned by the individual plaintiffs, Plaintiffs ask the Court to issue declarations and injunctions that will affect AID's interests in all properties affected by the Modernization Project. See FAC, Prayer for Relief ¶¶3-5. Defendant argues that “Plaintiffs appear to seek relief that will apply to AID with respect to all Main Canal properties, even though just three Main Canal Properties are identified in detail in the First Amended Complaint.” Defendant therefore asks the Court to order Plaintiffs to limit their requested relief to apply only to the three properties identified in the FAC.
Rule 12(e) provides that a party may move for a more definite statement of a pleading “which is so vague or ambiguous that the party cannot reasonably prepare a response.” Here, Plaintiffs challenge the scope of AID's easements. FAC at 16. Plaintiffs' prayer for relief asks for declaratory and injunctive relief to restrain AID from implementing its Plan-EA and the Modernization Project. Because this requested relief concerns Defendant's rights and actions, and the Court is satisfied that Defendants can reasonably prepare a response, the Court finds that Plaintiffs' FAC is appropriately definite to survive a motion to dismiss under Rule 12(e). For these reasons, AID's motion to make more definite should be denied.RECOMMENDATION
For the reasons above, Defendant's motion (ECF No. 24) should be GRANTED in part and DENIED in part. Defendant's motion to dismiss Plaintiffs' second and third claims should be GRANTED. Plaintiffs' second and third claims for relief should be dismissed with prejudice as to SAC. Defendant's motion to make more definite should be DENIED. Defendant's motion to strike should be DENIED.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Federal Rule of Appellate Procedure 4(a)(1) should not be filed until entry of the district court's judgment or appealable order. The Findings and Recommendation will be referred to a district judge. Objections to this Findings and Recommendation, if any, are due fourteen (14) days from today's date. See Fed.R.Civ.P. 72. Failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991).