Opinion
6:22-cv-00732-MK
08-02-2023
STEVEN SMITH, Plaintiff, v. UNITED STATES OF AMERICA; and U.S. DEPARTMENT OF TRANSPORTATION, Defendants.
FINDINGS AND RECOMMENDATION
KASUBHAI, UNITED STATES MAGISTRATE JUDGE
Plaintiff Steven Smith brings this action alleging claims under the Federal Tort Claims Act (FTCA) and the Freedom of Information Act (FOIA) against Defendants, United States of America and the U.S. Department of Transportation. Compl., ECF No. 1. Plaintiff alleges that the Federal Aviation Administration (FAA) negligently investigated Plaintiff's complaints that airplanes from a local flight school operating out of the Roseburg airport were flying too close to his home and failed to enforce applicable federal regulations. Id. at ¶ 6. Before the Court are (1) Defendant United States' Partial Motion to Dismiss (ECF No. 13) and (2) Plaintiff's Motion for Partial Summary Judgment (ECF No. 41).
The Court concludes that this matter is proper for resolution without oral argument. For the below reasons, Defendant's Partial Motion to Dismiss (ECF No. 13) should be DENIED as to count one claims 1-7 but GRANTED as to count one claims 8 and 9. Plaintiff's Motion for Partial Summary Judgment (ECF No. 41) should be DENIED and instead construed as part of his response to Defendant's Partial Motion to Dismiss.
BACKGROUND
Plaintiff is a resident of Roseburg, Oregon. Compl. ¶ 4, ECF No 1. Plaintiff reported to the FAA “numerous times” between 2013 and 2021 that a flight school in Roseburg was conducting training flights averaging between 75 to 150 feet above Plaintiff's home. Id. at ¶ 6. Plaintiff complained that the overflights violated 19 C.F.R. § 91.119 governing “minimum safe altitudes.” The FAA investigated at least one of Plaintiff's complaints and responded on August 16, 2016 that the regulation “allows lower, but safe altitudes ‘when necessary for takeoff and landing'” and it would therefore not take enforcement action. Id. at ¶ 6; Ex. 5. That same letter indicated that the FAA had investigated previous complaints and found no violations. Id.
Plaintiff filed this lawsuit alleging that the FAA's responses to his complaints were negligent and that it failed to conduct a reasonable investigation and take enforcement action. Id. According to Plaintiff, as of the date of his Complaint “Defendant has failed and refused to come to Plaintiff's home and observe [the airport operations].” Id. Plaintiff also alleges that Defendant launched an investigation into his personal life. Id.
Plaintiff's Complaint includes two counts. Count one consists of seven claims sounding in negligence or nuisance (claims 1-7), one claim for invasion of privacy (claim 8), and one for abuse of process (claim 9). Id. at ¶¶ 7-15. Plaintiff's various negligence claims collectively relate to Defendant's failure to investigate his complaints, failure to supervise investigators, and failure to enforce the regulation relating to overflights. Plaintiff's count two alleges a claim a under FOIA for failure to timely answer his FOIA requests.
Defendant filed a partial motion to dismiss claims 1-8 of count one of Plaintiff's complaint under Rule 12(b)(6) for failure to state a claim and claim 9 of count one of Plaintiff's complaint under Rule 12(b)(1) for lack of subject matter jurisdiction. ECF No 13. Plaintiff's count two under FOIA is not at issue in Defendant's motion.
Plaintiff's responsive briefing included a “Partial [Motion for] Summary Judgment pursuant to Rule 56 dismissing Defendant's FRCP 12(b) defenses with regards to Plaintiff's claims 1 through 7.” ECF No. 41.
STANDARDS OF REVIEW
I. Motion to Dismiss for Failure to State a Claim
A motion to dismiss for failure to state a claim may be granted only when there is no cognizable legal theory to support the claim or when the complaint lacks sufficient factual allegations to state a facially plausible claim for relief. Los Angeles Lakers, Inc. v. Federal Insurance Company, 869 F.3d 795, 800 (9th Cir. 2017). In evaluating the sufficiency of a complaint's factual allegations, the court must accept as true all well-pleaded material facts alleged in the complaint and construe them in the light most favorable to the non-moving party. Id. To be entitled to a presumption of truth, allegations in a complaint “may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). All reasonable inferences from the factual allegations must be drawn in favor of the plaintiff. Los Angeles Lakers, 869 F.3d 795 at 800. The court need not, however, credit the plaintiff's legal conclusions that are couched as factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).
A complaint must contain sufficient factual allegations to “plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation.” Starr, 652 F.3d at 1216. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). “The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id.
II. Motion to Dismiss for Lack of Subject Matter Jurisdiction
Federal courts are courts of limited jurisdiction. Gunn v. Minton, 568 U.S. 251, 256 (2013) (quotation marks omitted). As such, a court is to presume “that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations omitted); see also Advanced Integrative Medical Science Institute, PLLC v. Garland, 24 F.4th 1249, 1256 (2022). A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of “subject-matter jurisdiction, because it involves a court's power to hear a case, can never be forfeited or waived.” United States v. Cotton, 535 U.S. 625, 630 (2002). An objection that a particular court lacks subject matter jurisdiction may be raised by any party, or by the court on its own initiative, at any time. Arbaugh v. Y&H Corp., 546 U.S. 500, 506 (2006); Fed.R.Civ.P. 12(b)(1). The Court must dismiss any case over which it lacks subject matter jurisdiction. Fed. R. Civ. P. 12(h)(3); see also Pistor v. Garcia, 791 F.3d 1104, 1111 (9th Cir. 2015) (noting that when a court lacks subject-matter jurisdiction, meaning it lacks the statutory or constitutional power to adjudicate a case, the court must dismiss the complaint, even sua sponte if necessary).
A Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction may be either “facial” or “factual.” See Edison v. U.S., 822 F.3d 510, 517 (9th Cir. 2016). A facial attack on subject matter jurisdiction is based on the assertion that the allegations contained in the complaint are insufficient to invoke federal jurisdiction. Id. “A jurisdictional challenge is factual where the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction.” Pride v. Correa, 719 F.3d 1130, 1133 n.6 (9th Cir. 2013). A factual attack on the plaintiff's assertion of jurisdiction “contests the truth of the plaintiff's factual allegations, usually by introducing evidence outside the pleadings.” New Gen, LLC v. Safe Cig, LLC, 840 F.3d 606, 614. See also Terenkian v. Republic of Iraq, 694 F.3d 1122, 1131 (9th Cir. 2012).
III. Motion for Summary Judgment
A party may move for summary judgment on a claim or defense. Fed.R.Civ.P. 56(a). Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, affidavits, and admissions on file, if any, show “that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law.” Substantive law on an issue determines the materiality of a fact. T.W. Elec. Servs., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). Whether the evidence is such that a reasonable jury could return a verdict for the nonmoving party determines the authenticity of the dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The moving party has the burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts which show a genuine issue for trial. Id. at 324.
DISCUSSION
I. Plaintiff's Motion for Partial Summary Judgment
Because it has bearing on the Court's consideration of Defendant's Partial Motion to Dismiss, the Court first addresses Plaintiff's Motion for Partial Summary Judgment. Plaintiff moves for summary judgment “dismissing Defendant's FRCP 12(b) defenses with regards to Plaintiff's claims 1 through 7.” Pl.'s Mot. 2, ECF No. 41. In substance, Plaintiff's motion asks the Court to deny Defendant's Partial Motion to Dismiss under Rule 12(b)(6) and argues that the Court should apply summary judgment standards to Defendant's motion. Such a position does not amount to a separate motion for summary judgment, but rather is a direct response to Defendant's motion. In other words, it does not seek summary judgment on a claim or defense within the meaning of Rule 56, but instead seeks the denial of Defendant's Rule 12(b) motion.
Accordingly, the Court construes Plaintiff's “Motion for Partial Summary Judgment” as part of his response to Defendant's Partial Motion to Dismiss. See, e.g. Beverly v. State of Nevada Clark Cnty., 2016 WL 632221, at *2 (D. Nev. Feb. 16, 2016) (treating a plaintiff's “motion for summary judgment” as a response to the defendant's motion to dismiss because it directly responded to the points raised in the motion to dismiss and did not identify any claim on which summary judgment was sought). The Court will consider the arguments Plaintiff makes as part of his motion-including his argument that the Court should apply a summary judgment standard-in its resolution of Defendant's motion. Accordingly, Plaintiff's Motion for Partial Summary Judgment should be denied and instead construed as part of his response to Defendant's Partial Motion to Dismiss.
II. Defendant's Partial Motion to Dismiss
A. Claims 1-7
Defendant moves to dismiss Plaintiff's claims 1-7 of count one pursuant to Rule 12(b)(6), arguing that Plaintiff's Complaint fails to state a claim because-even taking Plaintiff's alleged facts as true-the claims are barred by the applicable statute of limitations. Under the FTCA, the United States' waiver of sovereign immunity only applies when a plaintiff presents their claim to the appropriate federal agency in writing within two years after such claim accrues. 28 U.S.C. § 2401(b). An FTCA claim accrues “when a plaintiff knows or has reason to know of the injury which is the basis of his action.” Gibson v. United States, 781 F.2d 1334, 1344 (9th Cir. 1986).
Defendant contends that Plaintiff's “injury” was the FAA's August 16, 2016 letter informing Plaintiff that it had investigated his complaint regarding the overflights and would not be taking enforcement action. See Def.'s Mot 9; see also Compl. Ex. 6. Defendant cites Woodfield v. United States, No. CV 04-12483-NMG, 2005 WL 8175911 (D. Mass. Dec. 8, 2005) for the proposition that in negligent investigation claims, injury occurs at the time of the agency's final decision. Because Plaintiff's claims were not presented to the FAA in writing until October 22, 2021-more than five years after the FAA's August 16, 2016 letter-Defendant argues his claims are barred.
Accepting all allegations in the Complaint as true and construing it liberally, it is not clear from the face of the Complaint that Plaintiff's claims as a whole are untimely. See Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002) (“we construe pro se pleadings liberally on a defendant's motion to dismiss for failure to state a claim”). Despite Defendant's characterization of Plaintiff's Complaint as relating only to the FAA's investigation which culminated in its August 16, 2016 letter, the Complaint is not so limited. Plaintiff alleges “numerous” complaints between 2013 and 2021 and contends that Defendant's negligent investigation efforts continued through the date of his Complaint. Compl. ¶ 6, ECF No. 1. Moreover, the 2016 letter on which Defendant relies to establish accrual of Plaintiff's claim responds “to [Plaintiff's] letters concerning aircraft noise...” and finds that “the FAA considers your complaints to be addressed and no further action is necessary by the FAA.” ECF No. 1-6. There is no indication that the letter was intended to address future complaints. Indeed, the letter refers to previous investigations in 2013 and 2014, plausibly implying that Plaintiff's complaints were being addressed on an individual basis. Thus, even if the FAA's August 16, 2016 conclusion were construed as a final decision, it is a reasonable inference from Plaintiff's Complaint that it would only have been a final decision as to the complaints that letter was specifically addressing, not all future complaints as well.
Indeed, some of Plaintiff's exhibits to his Complaint include what appear to be FAA investigatory documents from the referenced 2013-2014 investigation. See Compl. Exs. 7-12.
Defendant argues that the Court should not consider complaints during the two years which would be within the statute of limitations (between 2019 and 2021) because the Complaint “alleges no facts supporting a contention that the FAA negligently investigated any of his complaints after closing the matter in 2016” and does not offer specific facts as to “whom specifically Plaintiff complained to at the FAA, when exactly he made such complaints, by what medium he made the complaints, or how the FAA responded to these complaints.” Def.'s Mot. 10, ECF No. 13. The Court has reviewed Plaintiff's Complaint and finds it sufficiently specific to put Defendant on “fair notice of what the claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555 (internal quotation marks, ellipsis, and citation omitted). Plaintiff alleges the general time period of his claims and the nature of them. He alleges that Defendant's inaction in the face of those complaints forms the basis of his claims. This is sufficient information to put Defendant on notice of the nature of the claims and is all that is required at this stage of the case.
Because the Court finds that there are sufficient allegations to assert timely negligence claims at least as to Defendant's response (or lack thereof) to Plaintiff's alleged complaint(s) made during the two years that are within the FTCA's statute of limitations, it need not address Plaintiff's “continuing tort” theory or the effect of the August 16, 2016 letter specifically. Defendant moved to dismiss Plaintiff's negligence claims as completely barred by the FTCA's statute of limitations, but the Court cannot conclude from the face of the Complaint that Plaintiff's claims 1-7 are untimely.
B. Claim 8
Defendant moves to dismiss Plaintiff's claim 8 (invasion of privacy) pursuant to Rule 12(b)(6), arguing that Plaintiff has failed to state a claim upon which relief can be granted. In Oregon, the state law tort of invasion of privacy can be pled under a theory of intrusion upon seclusion, appropriation of another's name or likeness, false light, or publication of private facts. Perez-Denison v. Kaiser Foundation Health Plan, 868 F.Supp.2d 1065, 1089 (D. Or. 2012).
Here, Plaintiff alleges that “Defendant negligently and unreasonably conducted an investigation to obtain personal information about Plaintiff, for example to determine who his friends and acquaintances are, and collected and distributed such information, which intruded upon his privacy and solitude in an offensive manner resulting in injury and damages to Plaintiff.” Compl. ¶ 14, ECF No. 1. In support of this claim, Plaintiff attaches three exhibits which are “whitepages.com” results-obtained by Plaintiff through a FOIA request-listing Plaintiff's name, age, address, and “people [Plaintiff] may know.” Id. at Exs. 13-15.
As an initial matter, it is unclear which type of invasion of privacy claim Plaintiff asserts. Nevertheless, construing Plaintiff's Complaint liberally, the Court considers the two invasion of privacy theories-intrusion upon seclusion and public disclosure of private facts-that are most factually similar to Plaintiff's allegations. See Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (pro se pleadings must be construed liberally and afforded the benefit of any doubt). Although Plaintiff's response implies that his claim is one for intrusion upon seclusion, the Court nevertheless addresses both theories because both were briefed by Defendant and Plaintiff appears to reserve the right to argue public disclosure of public facts in the future. See Pl.'s Resp. 19, 20 n. 15, ECF No. 41.
To establish a claim for intrusion upon seclusion, a Plaintiff must prove “(1) an intentional intrusion, physical or otherwise, (2) upon the plaintiff's solitude or seclusion or private affairs or concerns, (3) which would be highly offensive to a reasonable person.” Mauri v. Smith, 324 Or. 476, 483, 929 P.2d 307, 310 (1996). There is no intrusion upon a plaintiff's private affairs or concerns when the matter which is “intruded” upon is public, and there is therefore no “seclusion.” See Restatement (Second) of Torts § 652B (1977) (“there is no liability [for intrusion upon seclusion] for the examination of a public record concerning the plaintiff..”); Mauri, 324 Or. at 482-83 (adopting Restatement (Second) of Torts definition of invasion of privacy). Accordingly, the use of a publicly available internet search tool such as whitepages.com cannot amount to an intrusion on seclusion and Plaintiff has therefore failed to state a claim under that theory.
The Court takes judicial notice that “whitepages.com” is a publicly available internet search tool. See, e.g.Reynolds v. Binance Holdings Ltd., 481 F.Supp.3d 997, 1002 (N.D. Cal. 2020) (“[A] court may take judicial notice of publicly available newspaper and magazine articles and web pages that indicate what was in the public realm” but not the truth of the matters asserted on the website).
To claim public disclosure of private facts, a plaintiff must prove “1) that the plaintiff had private information which would otherwise have remained private; 2) that the defendant made that private information known to the public or to a large number of people; and 3) that the publication of that information would have been offensive to a reasonable person.” L & D of Oregon, Inc. v. Am. States Ins. Co., 171 Or.App. 17, 21, 14 P.3d 617, 619-20 (2000). Assuming this is Plaintiff's theory, it suffers the same deficiencies as intrusion upon seclusion, as it involves information that was derived from a publicly available internet search tool. See Restatement (Second) of Torts § 652D (1977) (“There is no liability [for public disclosure of private facts] when the defendant merely gives further publicity to information about the plaintiff that is already public”).
Plaintiff's response does not appear to dispute that the information in the exhibits which form the basis of his claim come from a public website. Instead, he contends that his invasion of privacy claim should not be dismissed because discovery has not yet occurred, citing Burlington N. Santa Fe R. Co. v. Assiniboine & Sioux Tribes of Fort Peck Rsrv., 323 F.3d 767 (9th Cir. 2003) for the proposition that “[d]ismissing a claim before a party has had a chance to discover supporting evidence is disfavored.” Pl.'s Resp. 20, ECF No. 41. In Burlington, the Ninth Circuit noted that motions to continue or defer a summary judgment motion should be granted freely when “a summary judgment motion is filed so early in the litigation, before a party has had any realistic opportunity to pursue discovery.” Id. at 773.
Burlington is inapplicable here because that case involved a motion for summary judgment and a corresponding motion to defer that motion pending discovery under Rule 56(d) (formerly Rule 56(f)). A Rule 56(d) motion allows deferral of a motion for summary judgment “[i]f a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition.” Here, Plaintiff has not filed a Rule 56(d) motion, nor could he because that rule expressly applies to summary judgment motions. Defendant's motion is one for dismissal pursuant to Rule 12(b)(6) , under which the only question before the Court is whether the complaint contains sufficient factual allegations to state a facially plausible claim for relief. Discovery is irrelevant because a Rule 12(b)6) motion does not turn on facts obtained during but rather on the sufficiency of the pleadings on their face. Taking the alleged facts as true, Plaintiff's Complaint fails to state a claim for relief based on invasion of privacy.
To the extent Plaintiff's response and partial motion for summary judgment can be liberally construed to argue that the Court should treat Defendant's motion as one for summary judgment pursuant to Rule 12(d), that rule does not apply because Defendant's motion does not rely on matters outside the pleadings. See Fed.R.Civ.P. 12 (“If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56”). Thus, the Court will not treat Defendant's motion as one for summary judgment.
Given the vagueness of Plaintiff's allegations under claim 8 and his intimation that it may be based on more than the whitepages.com printout, Plaintiff should be granted leave to amend. However, the Court notes that any allegations that Defendant invaded Plaintiff's privacy must do more than state the elements of the claim; they must put Defendant on notice of the factual basis of the claim. See Pac. Coast Fed'n of Fishermen's Assocs. v. Glaser, 937 F.3d 1191, 1200 (9th Cir. 2019) (“the allegations in the complaint give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests) (internal quotations and citation omitted). The liberal pleading standards of Rule 8 “do[] not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.” Iqbal, 556 U.S. 662 at 678-79.
C. Claim 9
Defendant moves to dismiss Plaintiff's claim 9 (abuse of process) pursuant to Fed.R.Civ.P. 12(b)(1), arguing that this Court lacks subject matter jurisdiction.
The FTCA waives the United States Government's (and its employees acting in their official capacities) sovereign immunity from tort suits, except for certain intentional torts, including abuse of process. 28 U.S.C. § 2680(h). However, that exception to the FTCA waiver itself carves out claims arising out of “acts and omissions of investigative or law enforcement officers” so that the waiver of sovereign immunity does apply in such instances. Id. When an exception to the FTCA's waiver of sovereign immunity applies, the Court must dismiss the claim for lack of subject matter jurisdiction. Nurse v. United States, 226 F.3d 996, 1000 (9th Cir. 2000).
There is no dispute that Plaintiff's claim 9 is one for abuse of process, as it is explicitly alleged as such. See Compl. ¶ 15, ECF No. 1. Plaintiff alleges that Defendant, through its attorney, made false and misleading statements in the course of a settlement conference. Id. Plaintiff's Complaint alleges no facts that would establish that his abuse of process claim arises from acts or omissions of investigative or law enforcement officers as would be necessary to establish subject matter jurisdiction. Indeed, Plaintiff does not appear to dispute that Defendant's attorney is not such an officer. Pl.'s Resp. 22, ECF No. 41. Instead, Plaintiff argues that the abuse of process occurred “likely through agent Harris” who provided the false and misleading statements to Defendants' attorney. Id. Plaintiff's response-but not his Complaint-argues that “agent Harris is an investigative or law enforcement officer subject to the exception to the FTCA's intentional tort exclusion.” Id. Plaintiff requests additional time to discover such facts as material to the claim.
Plaintiff's argument and request for deferral on the Court's hearing of this motion misapprehends the nature of Defendant's challenge, which pertains to the allegations in the Complaint without presenting extraneous evidence. In other words, it is a facial attack on Plaintiff's Complaint itself. 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. By contrast, in a factual attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction”).
Although Defendant's moving papers explicitly state that its motion with respect to claim 9 was made pursuant to Rule 12(b)(1), its reply confusingly refers to Rule 12(b)(6) case law. Def.'s Reply 8, ECF No. 19. In either event, however, it is clear that Defendant's motion relies solely on the allegations in the complaint and not on extraneous evidence. Accordingly, the Court construes it as a facial attack.
None of the facts Plaintiff discusses in his response appear in his Complaint, nor do the allegations Plaintiff did assert in the Complaint establish subject matter jurisdiction in the face of the FTCA's jurisdictional bar for abuse of process claims. Thus, taking all of the allegations in Plaintiff's Complaint as true-as this Court must do in a facial attack-Plaintiff fails to plead facts giving rise to subject matter jurisdiction, and the Court should dismiss the claim. However, Plaintiff should be granted leave to amend his Complaint to attempt to address the issue. See, e.g. Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987) (“A pro se litigant must be given leave to amend [their] complaint unless it is absolutely clear that the deficiencies of the complaint could not be cured by amendment”) (internal quotations and citation omitted).
RECOMMENDATION
For the reasons above, Plaintiff's Motion for Partial Summary Judgment (ECF No. 41) should be DENIED and the arguments and authority cited within should be construed as part of his response to Defendant's Partial Motion to Dismiss. Defendant's Partial Motion to Dismiss (ECF No. 13) should be DENIED as to claims 1-7 of count one and GRANTED as to claims 8 and 9 of count one. Plaintiff's claims 8 and 9 of count one should be DISMISSED with leave to amend.
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).