Opinion
CV 01-1132-AS
January 25, 2002
EMILY S. COHEN, Portland, OR, for Plaintiff.
HARDY MYERS, Attorney General and PHILLIP M. BENDER, Assistant Attorney General, Department of Justice, Salem, OR, for Defendants.
ORDER
Magistrate Judge Donald C. Ashmanskas issued Findings and Recommendations (#29) on October 18, 2001, in which he recommended the Court grant Defendants' Motion to Dismiss (#16). Plaintiff Linda Hilger, a.k.a. Linda render, 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 Business Machines, Inc., 656 F.2d 1309, 1313 (9th Cir. 1981), cert. denied, 455 U.S. 920 (1982). This Court has reviewed the pertinent portions of the record de novo and finds no error in the Magistrate Judge's Findings and Recommendation.
The Findings and Recommendation did not indicate whether dismissal of Plaintiff's claims should be with or without prejudice. In Plaintiff's written Objections to the Findings and Recommendation, she argued the Court should dismiss Plaintiff's claims without prejudice. Defendants, in their written Response to Plaintiff's Objections, contended the Court must dismiss Plaintiff's claims with prejudice.
This Court agreed with the Magistrate Judge's recommendation that the Court abstain from hearing Plaintiff's claims pursuant to Younger v. Harris, 401 U.S. 37 (1971). The Court, however scheduled oral argument to be heard on January 22, 2002, on the issue of the proper disposition of this action upon abstention in light of the Ninth Circuit's holding in Adam v. Hawaii, 235 F.3d 1160 (2001).
During oral argument, Plaintiff confirmed she is not seeking relief under 42 U.S.C. § 1983. Plaintiff also conceded all of her claims for money damages under any theory. Plaintiff, however, orally requested the Court stay this action pending the outcome of her state action because it is unclear under Oregon law whether the state court has jurisdiction to hear claims under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12131 et seq., and the Rehabilitation Act, 29 U.S.C. § 701, et seq. Plaintiff pointed out she might be barred by the statute of limitations from pursuing her claims in federal court in the future even if this Court dismissed her claims without prejudice.
Defendants conceded during oral argument the Court need not dismiss Plaintiff's claims with prejudice. Defendants, however, contended the appropriate disposition of this matter is dismissal without prejudice as opposed to a stay. Defendants stated they will nor argue in the state court action that the state court lacks jurisdiction over Plaintiff's ADA and Rehabilitation Act claims; therefore, Plaintiff will have an opportunity to have her claims decided by the state court, and a stay of this action is not necessary to protect Plaintiff's right to be heard.
Although nothing prevents the state court from addressing the jurisdictional issue sua sponte, the parties have executed an agreement tolling the statute of limitations during the pendency of Plaintiff's state court action. Thus, Plaintiff will not be barred by time limitations from pursuing her claims in federal court if the state court determines it lacks jurisdiction to decide those claims.
Based on the foregoing, the Court concludes the appropriate disposition of this action is dismissal of Plaintiff's Complaint without prejudice.
CONCLUSION
The Court ADOPTS Magistrate Judge Ashmanskas's Findings and Recommendation (#29). Defendant's Motion to Dismiss (#16), therefore, is GRANTED, and Plaintiff's Complaint is DISMISSED without prejudice.