Opinion
Civil No. 3:18-CV-01218
11-19-2018
PAIGE BARNARD, Plaintiff, v. LIBERTY MUTUAL INSURANCE CORPORATION, and THE FIRST LIBERTY INSURANCE CORPORATION, Defendants.
(Judge Mariani)
( ) REPORT AND RECOMMENDATION
I. INTRODUCTION
Pending before the court is the defendants' motion to dismiss Counts I and II of the plaintiff's amended complaint. (Doc. 13). The plaintiff, Paige Barnard, asserts claims against the defendants (collectively "Liberty Mutual") arising out of an automobile insurance policy. She alleges that Liberty Mutual breached its contract with her when it refused to continue to pay her first party medical benefits as required by the policy and by the Pennsylvania Motor Vehicle Financial Responsibility Law ("MVFRL"), 75 Pa. Cons. Stat. § 1701, et seq. She further claims that Liberty Mutual acted in bad faith when it sent her case to a peer review organization ("PRO"), which determined that Barnard's medical treatment was unnecessary and unreasonable, causing Liberty Mutual to cease paying her benefits.
The defendants have filed the instant motion to dismiss Counts I and II of the plaintiff's amended complaint. Liberty Mutual argues that Count I, a breach of contract claim, must be dismissed because it is duplicative of Count III, which states a claim pursuant to 75 Pa. Cons. Stat. § 1797, and both claims stem from the denial of the plaintiff's first party medical benefits. Additionally, Liberty Mutual claims that Count II, which alleges statutory bad faith pursuant to 42 Pa. Cons. Stat. § 8371, must be dismissed because § 1797 of the MVFRL provides the exclusive remedy for the plaintiff's bad faith claim. The motion has been fully briefed and is ripe for resolution. (Docs. 14, 16, 17, 21). For the reasons set forth below, we will recommend that the defendants' motion be denied as to Count I, and granted as to Count II. We further recommend that Count II be dismissed without prejudice to allowing the plaintiff to file an amended complaint if she can allege well-pleaded facts which would support a bad faith claim in this particular factual setting.
II. BACKGROUND
The plaintiff, Paige Barnard, was involved in a motor vehicle accident on December 21, 2015, in which she was seriously injured. (Doc. 7, ¶ 5). At the time of the accident, Barnard was insured by Liberty Mutual under her parents' auto insurance policy. (Id., ¶ 7). The insurance policy included coverage for first party medical benefits. (Id., ¶7; Ex. A, at 17). It is alleged that the plaintiff was receiving medical treatment for her injuries, and that Liberty Mutual paid the first party medical benefits and income loss benefits. (Id., ¶¶ 8-9). On December 22, 2016, about one year after the accident, the plaintiff received a letter from Liberty Mutual advising her that it would be terminating all services on and after February 11, 2016, including prescriptions, diagnostic testing, and all other treatments she was receiving. (Id., ¶ 12). The decision to terminate the plaintiff's benefits was made after Liberty Mutual sent the plaintiff's claim to a peer review organization ("PRO"), which determined that the plaintiff's treatment was not appropriate, necessary, or reasonable. (Id.)
On March 2, 2017, Barnard submitted a request for reconsideration of the termination of benefits, which included medical records to support her claim of injury. (Id., ¶ 13). Her request for reconsideration was denied, and Barnard alleges that the decision on reconsideration was made without the benefit of her back surgeon's medical records. (Id.) Liberty Mutual then sent a letter dated March 14, 2017, along with a copy of the reconsideration report, and stated that the bills for treatment would not be paid, the termination of benefits was being upheld, and the amount paid for the reconsideration was to be paid by the plaintiff. (Id. ¶ 14). It is alleged that, in addition to terminating her medical treatment benefits, Liberty Mutual also ceased paying the income loss benefits that Barnard had been receiving. (Id., ¶ 15).
Barnard initially filed her original complaint in the Court of Common Pleas of Lackawanna County on May 23, 2018. (Doc. 2, Ex. A). Liberty Mutual removed the case to this court on June 15, 2018, on the basis of diversity jurisdiction, (Doc. 1), and subsequently filed a motion to dismiss Counts I and II of the complaint. (Doc. 4). This first motion was ultimately dismissed as moot, (Doc. 10), as the plaintiff filed a motion to remand the case to state court. (Doc. 6). While the motion for remand was pending, the plaintiff filed an amended complaint (Doc. 7), and the defendants filed the instant motion to dismiss Counts I and II of that amended complaint. (Doc. 13).
III. STANDARD OF REVIEW
The defendants have moved to dismiss Counts I and II of the amended complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, "failure to state a claim upon which relief can be granted." With respect to this benchmark standard for legal sufficiency of a complaint, the United States Court of Appeals for the Third Circuit has aptly noted the evolving standards governing pleading practice in federal court, stating that:
Standards of pleading have been in the forefront of jurisprudence in recent years. Beginning with the Supreme Court's opinion in Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007) continuing with our opinion in Phillips [v. County of Allegheny, 515 F.3d 224, 230 (3d Cir. 2008)]and culminating recently with the Supreme Court's decision in Ashcroft v. Iqbal -U.S.- 129 S. Ct. 1937 (2009) pleading standards have seemingly shifted from simple notice pleading to a more heightened form of pleading, requiring a plaintiff to plead more than the possibility of relief to survive a motion to dismiss.Fowler v. UPMC Shadyside, 578 F.3d 203, 209-10 (3d Cir. 2009).
In considering whether a complaint fails to state a claim upon which relief may be granted, the Court must accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom are to be construed in the light most favorable to the plaintiff. Jordan v. Fox Rothschild, O'Brien & Frankel, Inc., 20 F.3d 1250, 1261 (3d Cir. 1994). However, a court "need not credit a complaint's bald assertions or legal conclusions when deciding a motion to dismiss." Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Additionally a court need not "assume that a ... plaintiff can prove facts that the ... plaintiff has not alleged." Associated Gen. Contractors of Cal. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983). As the Supreme Court held in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), in order to state a valid cause of action a plaintiff must provide some factual grounds for relief, which "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of actions will not do." Id. at 555. "Factual allegations must be enough to raise a right to relief above the speculative level." Id.
In keeping with the principles of Twombly, the Supreme Court has underscored that a trial court must assess whether a complaint states facts upon which relief can be granted when ruling on a motion to dismiss. In Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court held that, when considering a motion to dismiss, a court should "begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Id. at 679. According to the Supreme Court, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. at 678. Rather, in conducting a review of the adequacy of complaint, the Supreme Court has advised trial courts that they must:
[B]egin by identifying pleadings that because they are no more than conclusions are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.Id. at 679.
Thus, following Twombly and Iqbal, a well-pleaded complaint must contain more than mere legal labels and conclusions. Rather, a complaint must recite factual allegations sufficient to raise the plaintiff's claimed right to relief beyond the level of mere speculation. As the United States Court of Appeals for the Third Circuit has stated:
[A]fter Iqbal, when presented with a motion to dismiss for failure to state a claim, district courts should conduct a two-part analysis. First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a 'plausible claim for relief.' In other words, a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to 'show' such an entitlement with its facts.Fowler, 578 F.3d at 210-11.
As the court of appeals has observed: "The Supreme Court in Twombly set forth the 'plausibility' standard for overcoming a motion to dismiss and refined this approach in Iqbal. The plausibility standard requires the complaint to allege 'enough facts to state a claim to relief that is plausible on its face.' Twombly, 550 U.S. at 570, 127 S.Ct. 1955. A complaint satisfies the plausibility standard when the factual pleadings 'allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.' Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). This standard requires showing 'more than a sheer possibility that a defendant has acted unlawfully.' Id. A complaint which pleads facts 'merely consistent with' a defendant's liability, [ ] 'stops short of the line between possibility and plausibility of "entitlement of relief." ' " Burtch v. Milberg Factors, Inc., 662 F.3d 212, 220-21 (3d Cir. 2011) cert. denied, 132 S. Ct. 1861, 182 L. Ed. 2d 644 (U.S. 2012).
In practice, consideration of the legal sufficiency of a complaint entails a three-step analysis: "First, the court must 'tak[e] note of the elements a plaintiff must plead to state a claim.' Iqbal, 556 U.S. at 675. Second, the court should identify allegations that, 'because they are no more than conclusions, are not entitled to the assumption of truth.' Id. at 679. Finally, 'where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.' Id." Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010).
In addition to these pleading rules, a civil complaint must comply with the requirements of Rule 8(a) of the Federal Rules of Civil Procedure, which defines what a complaint should say and provides that:
(a) A pleading that states a claim for relief must contain (1) a short and plain statement of the grounds for the court's jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support; (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought, which may include relief in the alternative or different types of relief.Fed. R. Civ. P. 8(a).
Thus, a well-pleaded complaint must contain more than mere legal labels and conclusions. Rather, a plaintiff's complaint must recite factual allegations which are sufficient to raise the plaintiff's claimed right to relief beyond the level of mere speculation, set forth in a "short and plain" statement of a cause of action.
IV. DISCUSSION
The defendants have moved to dismiss Counts I and II of the amended complaint. Count I asserts a breach of contract claim, alleging that Liberty Mutual's failure to pay first party medical benefits breached the insurance policy, as section 1712 of the MVFRL requires an insurer to pay these benefits, as well as loss income benefits, under the policy. (Doc. 7, ¶¶ 17, 19). Count II alleges a bad faith claim pursuant to 42 Pa. Cons. Stat. § 8371, claiming that Liberty Mutual acted in bad faith when it denied payment of her medical benefits. (Doc. 7, ¶ 23). Liberty Mutual contends that the breach of contract claim is duplicative of the statutory claim under § 1797 of the MVFRL in Count III, and that § 1797 preempts the bad faith claim made pursuant to § 8371. We address each of Liberty Mutual's arguments in turn.
A. The Plaintiff's Breach of Contract Claim Should Not be Dismissed.
Count I of the plaintiff's amended complaint alleges that Liberty Mutual breach its contract with her when it denied payment of first party medical benefits to which she was entitled. Barnard asserts that the MVFRL, specifically sections 1712 and 1716, requires an insurer to pay medical benefits, in addition to loss income benefits, for reasonable and necessary medical treatment, and that Liberty Mutual breached the insurance agreement when it failed to do so. Liberty Mutual contends that this claim is duplicative of Count III of the amended complaint, which asserts a claim pursuant to § 1797 of the MVFRL, and therefore it must be dismissed. We disagree.
In order to state a claim for breach of contract in Pennsylvania, Barnard must prove three elements: "(1) the existence of a contract, including its essential terms, (2) a breach of the contract, and (3) resultant damages." Meyer, Darragh, Buckler, Bebenek & Eck, P.L.L.C. v, Law Firm of Malone Middleman, P.C., 137 A.3d 1257 (Pa. 2016). Here, it is clear that there was a contract between Barnard and Liberty Mutual, as Barnard was covered under the auto insurance policy issued to Barnard's parents by Liberty Mutual. It is equally clear that the contract included coverage for first party medical benefits. (Doc. 7, Ex. A, at 17).
Barnard also alleges that Liberty Mutual breached its contract with her. Section 1712 of the MVFRL states that an insurer that issues automobile insurance policies must make first party benefits available for purchase, which includes medical benefits and income loss benefits. 75 Pa. Cons. Stat. § 1712(1), (2). Medical benefits under this section include, but are not limited to, hospital, surgical, licensed physical therapy, and other benefits. § 1712(1). Income loss benefits include eighty percent of actual loss of gross income. § 1712(2). Section 1716 provides that benefits are considered overdue if not paid within thirty days after receiving reasonable proof of the amount of benefits. § 1716. This section mandates that an insurer that has acted unreasonably in refusing to pay the benefits pay the amount of benefits owed, interest of 12% per annum, and reasonable attorney fees. Id.
In this case, Liberty Mutual, a provider of auto insurance policies, did in fact offer coverage for first party medical benefits and income loss benefits. (Doc. 7, Ex. A, at 17). Thus, it was required to provide benefits for reasonable and necessary medical treatment, and failure to do so would result in a breach of the agreement. Here, Barnard has alleged that her medical treatment was reasonable and necessary, and that Liberty Mutual failed to pay for that treatment. Thus, Barnard sufficiently alleges that Liberty Mutual breached the contract. Furthermore, Barnard claims to have suffered damages caused by the breach, including unpaid medical benefits and unpaid income loss benefits. On this score, Barnard has pleaded a breach of contract claim against Liberty Mutual sufficient to survive the motion to dismiss.
Liberty Mutual's contention that the breach of contract claim is duplicative of the statutory claim under § 1797 is unpersuasive. Section 1797 allows an insurer to contract with a peer review organization ("PRO") in order to evaluate treatments provided to injured persons. § 1797(b)(1). The purpose of the evaluation is to confirm that the treatment or services received by the injured person "conform to the professional standard of performance and are medically necessary." Id. The MVFRL defines "necessary" treatment as "[t]reatment, accommodations, products or services which are determined to be necessary by a licensed health care provider unless they shall have been found or determined to be unnecessary by a State-approved Peer Review Organization (PRO)." § 1702. If a PRO determines that the treatment is unnecessary or unreasonable, an insured person may request a reconsideration of the PRO's determination within thirty days. § 1797(b)(2). Additionally, § 1797(b) allows an insured to challenge the denial of benefits in court, even absent a request for reconsideration. See Terminato v. Pennsylvania National Ins. Co., 645 A.2d 1287 (Pa. 1994) (finding erroneous an insurance regulation that foreclosed a party from pursuing a claim under § 1797 when the party had not sought reconsideration of the PRO's initial determination).
Here, the plaintiff brings a claim pursuant to § 1797 in Count III of her amended complaint, alleging that Liberty Mutual, in deciding to terminate her benefits, relied on an improper PRO report that determined her treatment was not necessary or reasonable. (Doc. 7, ¶ 26). Section 1797 clearly allows for an insured person to challenge a denial of benefits in this respect. See § 1797(b); see also Metropolitan Group Property and Casualty Ins. Co. v. Hack, 312 F.Supp.3d 439, 447 (M.D. Pa. 2018) ("The sine qua non that triggers section 1797 is a dispute over the reasonableness or necessity of medical treatment); Hickey v. Allstate Property and Casualty Ins. Co., 722 F.Supp.2d 609, 614 (M.D. Pa. 2010) ("allegations amount[ing] to a challenge to the denial of first-party benefits based on the reasonableness and necessity of medical treatment would fall under section 1797"). Accordingly, the causes of action pursued in Counts I and III—one being a common law breach of contract claim, and the other being a statutory violation—while arising out of a common nucleus of operative facts are separate causes of action. Thus, we conclude that Count I is not duplicative of Count III, and therefore Count I should not be dismissed.
We recognize that Liberty Mutual's motion to dismiss is motivated, in part, by a concern that these two claims could result in a windfall for the plaintiff, a double recovery on substantially overlapping claims. To the extent that Liberty Mutual has voiced concern about the plaintiff receiving a "double recovery" in the amount of her unpaid medical benefits, the United States Court of Appeals for the Third Circuit has stated that "a plaintiff whose case concerns a single course of conduct . . . and a single injury . . . should [not] recover those profits twice or thrice over for each legal theory advanced in favor of liability. This would yield an unwarranted windfall recovery." Fineman v. Armstrong World Industries, Inc., 980 F.2d 171, 218 (3d Cir. 1992). Thus, if successful, Barnard should only be permitted to recover the amount of her lost medical benefits under one theory of liability. However, the possibility that a verdict might ultimately have to be molded to avoid a double recovery does not warrant dismissal of a potentially duplicative claim at the outset of this litigation.
B. The Plaintiff's Bad Faith Claim Under 42 Pa. Cons. Stat. § 8371 Should Be Dismissed Without Prejudice.
Barnard asserts a bad faith claim in Count II of the amended complaint pursuant to 42 Pa. Cons. Stat. § 8371. Liberty Mutual contends that this claim is preempted by § 1797 of the MVFRL, which provides the exclusive remedy for a purported denial of first party medical benefits under an insurance contract. We agree with the defendants that, as pleaded in the amended complaint, the plaintiff's bad faith claim falls within § 1797, which would preclude her from seeking the remedies permitted under § 8371. We note, however, that the plaintiff has argued facts that are not pleaded in her amended complaint which might give rise to a valid bad faith claim.
When a plaintiff brings an action that arises out of an insurance policy, and a court finds that the insurer has acted in bad faith, the court may award a 3% interest on the amount of the claim, punitive damages and attorney fees and court costs against the insurer. 42 Pa. Cons. Stat. § 8371. Section 1797 contains a provision permitting similar damages for bad faith conduct. 75 Pa. Cons. Stat. § 1797(b)(4) ("Conduct considered to be wanton shall be subject to a payment of treble damages to the injured party"). Under § 8371, a plaintiff must show that there was no reasonable basis for the defendant's denial of benefits, and that the "defendant knew or recklessly disregarded its lack of reasonable basis in denying the claim." Terletsky v. Prudential Property and Casualty Ins. Co., 649 A.2d 680, 688 (Pa. Super. Ct. 1994). A claim of bad faith must be proven by clear and convincing evidence. Id.
As Liberty Mutual aptly notes, the remedies provided by each statutory provision are different. Section 8371 provides for an interest rate of 3% and punitive damages, whereas § 1797 provides for a 12% interest rate and attorney fees. Where a court is faced with two statutory provisions, and those provisions are irreconcilable, the specific provision will prevail "unless the general provision was enacted later or 'manifests an intention that it should prevail.'" Hack, 312 F.Supp.3d at 444-45 (quoting Harris v. Lumberman's Mut. Cas. Co., 409 F.Supp.2d 618, 620 (E.D. Pa. 2006)). The United States Court of Appeals for the Third Circuit in Gemini Physical Therapy and Rehab., Inc. v. State Farm Mutual Auto. Ins. Co., 40 F.3d 63 (3d Cir. 1994), dealt specifically with the conflict between § 1797 of the MVFRL and § 8371. In Gemini, the Court of Appeals affirmed the dismissal of a § 8371 bad faith claim, relying on Pennsylvania caselaw and statutory interpretation, and found that the more specific provision of § 1797 governed the plaintiff's claim for first party benefits under the MVFRL. Id. at 67 (citing Barnum v. State Farm Mutual Auto. Ins. Co., 635 A.2d 155 (1993)). Thus, in a garden variety case, the provisions of §1797 would control and preempt a §8371 bad faith claim.
However, beyond this general rule, district courts in this circuit have crafted a narrow exception to this rule and held that the provisions in § 1797do not preempt a bad faith claim brought under § 8371 when the insurer's conduct falls outside of the scope of § 1797, and involves a bad faith abuse of the process challenging more than just the insurer's denial of first party benefits. See Hack, 312 F.Supp.3d 439 (M.D. Pa. 2018); Hickey v. Allstate Property and Casualty Ins. Co., 722 F.Supp.2d 609 (M.D. Pa. 2010); Perkins v. State Farm Ins. Co., 589 F.Supp.2d 559 (M.D. Pa. 2008); Schwartz v. State Farm Ins. Co., 1996 WL 189839 (E.D. Pa. April 18, 1996). Thus, a majority of courts have concluded that § 8371 claims will only remain cognizable "when the insurer's conduct goes beyond the scope of § 1797." Shea v. USAA, 2018 WL 3575261, at *8 (E.D. Pa. July 25, 2018). Conduct that has been deemed a challenge to the reasonableness and necessity of medical treatment, and falls within the scope of § 1797, includes failure to pay first party benefits, failure to fairly evaluate coverage, and failure to act in a reasonable time and in good faith. Hack, 312 F.Supp.3d at 447 (collecting cases). On the other hand, a challenge to the PRO process itself or to the insurer's abuse of the PRO process is not within the scope of § 1797. See Shea, 2018 WL 3575261, at *9.
Turning to the instant case, we conclude that Barnard's allegations, as pleaded in the amended complaint, are insufficient to establish a bad faith claim under § 8371. Barnard's amended complaint asserts eight allegations of bad faith against Liberty Mutual: (1) denying benefits based on a review that improperly determined her treatment was unnecessary; (2) failing to exercise good faith by paying the claim after receiving reasonable proof; (3) failing to pay the benefits without a reasonable foundation to do so; (4) jeopardizing her treatment by wrongfully refusing to pay; (5) compelling her to institute this litigation; (6) repeatedly violating and ignoring its duty to the plaintiff; (7) failing to exercise good faith in discharging its duties; and (8) engaging in unfair claims, settlements and insurance policies. (Doc. 7, ¶ 23 (a)-(h)). These allegations are similar to the allegations in Hack, which the court found to be within the scope of § 1797. The plaintiff's assertions are essentially challenges to the reasonableness and necessity of her treatment. Because the plaintiff's allegations as currently pleaded fall within the scope of § 1797, we recommend that the defendants' motion be granted with respect to the § 8371 bad faith claim in Count II.
However, we recommend that Count II be dismissed without prejudice, allowing the plaintiff leave to amend her complaint. Rule 15(a) of the Federal Rules of Civil Procedure states that leave to amend "shall be freely given when justice so requires." Fed. R. Civ. P. 15(a). The Supreme Court of the United States has held that, "[i]f the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, [s]he ought to be afforded an opportunity to test h[er] claims on the merits." Foman v. Davis, 371 U.S. 178, 182 (1962). The plaintiff's brief in opposition to the instant motion raises issues of potential bias regarding Liberty Mutual's PRO process which might give rise to a freestanding §8371 claim. However, none of these additional factual matters argued by Barnard in her opposition to this motion to dismiss are alleged in her amended complaint. While "it is axiomatic that the complaint may not be amended by the briefs in opposition to a motion to dismiss," Car Carriers, Inc. v. Ford Motor Co., 745 F.3d 1101, 1107 (3d Cir. 1984), the issues raised in the plaintiff's brief, if pleaded in a complaint, might give rise to conduct by Liberty Mutual that falls outside of the scope of § 1797, thereby resurrecting her bad faith claim under § 8371. Accordingly, we recommend that Count II be dismissed, but that the plaintiff be granted leave to amend her complaint.
V. RECOMMENDATION
Accordingly, for the foregoing reasons, IT IS RECOMMENDED THAT the Defendant's motion to dismiss the plaintiff's complaint (Doc. 13) be GRANTED IN PART and DENIED IN PART. IT IS RECOMMENDED THAT the motion be denied with respect to Count I, and that the motion be granted as to Count II, dismissing Count II without prejudice. IT IS FURTHER RECOMMENDED THAT the plaintiff be granted leave to amend the complaint in order to address the pleading deficiencies that we have identified. The Parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The
judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Submitted this 19th day of November, 2018.
S/Martin C . Carlson
Martin C. Carlson
United States Magistrate Judge