Opinion
CV 03-1509-ST.
June 22, 2004
TIMOTHY C. BENNETT, Moore Law Group, PC, Lake Oswego, OR, Attorneys for Plaintiff.
ROBERT LANE CAREY, BRENDA K. BAUMGART, Barran Liebman LLP, Portland, OR, Attorneys for Defendant.
AMENDED ORDER
Magistrate Judge Janice M. Stewart issued Findings and Recommendation (#18) on February 25, 2004, in which she recommended the Court deny Defendant Ash Grove Cement Company's Motion to Compel Arbitration and Abate Further Proceedings (#3). Defendant filed timely objections to the Findings and Recommendation.
The matter is now before this Court pursuant to 28 U.S.C. § 636(b)(1)(A) and Fed.R.Civ.P. 72(a) and on Plaintiff's Motion to Strike (#24).
STANDARDS
Motions to stay proceedings to enforce arbitration provisions are nondispositive, pretrial matters. Torrance v. Aames Funding Corp., 242 F. Supp.2d 862, 865 (D. Or. 2002).
When any party objects to any portion of a Magistrate Judge's Findings and Recommendation regarding a nondispositive motion, the district court must determine whether that portion of the Magistrate Judge's report is clearly erroneous as to any of its factual findings or contrary to law as to any of its Recommendations; i.e., legal conclusions. 28 U.S.C. § 636(b)(1)(A). See also Jochims v. Isuzu Motors, 151 F.R.D. 338 (S.D. Iowa 1993) ("clearly erroneous" review applies to factual findings; "contrary to law" review applies to conclusions of law).
PLAINTIFF'S MOTION TO STRIKE
Plaintiff moves to Strike Declarations submitted by Defendant in support of its objections to the Magistrate Judge's Findings and Recommendation. The Declarations pertain to Defendant's explanation as to how the attorneys' fees and legal costs associated with provisions of the Dispute Resolution Program (DPR) were to be allocated. Defendant also submits evidence purporting to establish that, after the Magistrate Judge issued her Findings and Recommendation, Plaintiff demanded and received from Defendant payment of $1,000 attorneys' fees that Plaintiff incurred during the arbitration.
The Court need not address the merits of Defendant's argument that this Court should consider materials not presented to the Magistrate Judge because, for the reasons stated below, this Court is not conducting a de novo review of Magistrate Judge Stewart's Findings and Recommendation. The Court's review of this matter is limited to whether Magistrate Judge Stewart's factual findings were clearly erroneous or her legal conclusions and Recommendation were contrary to law. This Court, therefore, necessarily limits its review to the materials before the Magistrate Judge.
Accordingly, the Court grants Plaintiff's Motion to Strike.
DEFENDANT'S OBJECTIONS TO FINDINGS AND RECOMMENDATION
The Magistrate Judge concluded the provision of Defendant's DRP that required Plaintiff to submit her claims to arbitration was ambiguous. The Magistrate Judge also concluded provisions relating to confidentiality, the payment of certain arbitrator's fees and costs, and the payment of attorneys' fees were unconscionable.After reviewing the record, this Court finds the Magistrate Judge's factual findings were not clearly erroneous nor were her legal conclusions and Recommendation contrary to law.
CONCLUSION
For these reasons, the Court GRANTS Plaintiff's Motion to Strike (#24). The Court ADOPTS Magistrate Judge Stewart's Findings and Recommendation (#18) and, accordingly, the Court DENIES Defendant's Motion to Compel Arbitration (#3).
IT IS SO ORDERED.