Opinion
10-CV-134-PK.
August 5, 2010
JAMES E. JACOBSON, JR., Portland, OR, Plaintiff, Pro Se. JOAN L. VOLPERT, MICHAEL J. FARRELL, Martin Bischoff Templeton Langslet Hoffman, Portland, OR, Attorneys for Defendants American Honda Motor Company, Inc., and American Honda Finance Corporation.
STEPHEN P. RICKLES, MARTIN WILLIAM JAQUA, The Rickles Law Firm, PC, Portland, OR, Attorneys for Defendant Ron Tonkin Honda.
ORDER
Magistrate Judge Paul Papak issued Findings and Recommendation (#50) on April 29, 2010, in which he recommends the Court grant the Motion (#12) to Dismiss of Defendant Ron Tonkin Honda; grant the Motion (#23) to Dismiss of Defendants American Honda Motor Company, Inc., and American Honda Finance Corporation; deny all other pending motions as moot; and dismiss this matter without prejudice. Plaintiff filed timely Objections to the Findings and Recommendation and a Motion (#43) for Imposition of Sanctions. The matter is now before this Court pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b).
The Court has determined oral argument is unnecessary to resolve these matters and, therefore, pursuant to Local Rule 7-1(d)(1), the Court denies Plaintiff's request for oral argument.
I. Plaintiff's Objections
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. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) ( en banc); United States v. Bernhardt, 840 F.2d 1441, 1444 (9th Cir. 1988).
In his Objections, Plaintiff notes at least one other judge in this Court has granted a request by Plaintiff to proceed in forma pauperis (IFP), and, therefore, Magistrate Judge Papak erred when he found Plaintiff's allegations of poverty in his Application in this matter were untrue. The record, however, does not reflect Magistrate Judge Stewart had before her in Jacobson v. Lundeen the same materials submitted to Magistrate Judge Papak in this matter. Moreover, the fact that Plaintiff was awarded IFP status in Jacobson v. Lundeen based on the record in that case does not resolve whether the record in this case supported Magistrate Judge Papak's Findings and Recommendation.
Plaintiff contends Judge Haggerty granted Plaintiff's request to proceed in forma pauperis in Jacobson v. Oregon, 10-CV-115-ST. Even though Plaintiff submitted an Application to Proceed In Forma Pauperis in that matter, Judge Haggerty adopted Magistrate Judge Stewart's Findings and Recommendation to remand the matter to state court without ruling on Plaintiff's Application to Proceed In Forma Pauperis. The Court, however, notes Magistrate Judge Stewart granted Plaintiff's Application to Proceed In Forma Pauperis in Jacobson v. Lundeen, 10-CV-98-ST. Accordingly, the Court assumes Plaintiff intended to refer to Jacobson v. Lundeen in his Objections.
In any event, Plaintiff does not point to any reliable evidence in the record that establishes the Magistrate Judge erred when he found Plaintiff's present allegations of poverty are untrue. In fact, the record in this matter, including Plaintiff's own submissions, establishes Plaintiff's Application to Proceed In Forma Pauperis contains at least inaccurate, if not affirmatively false allegations of poverty.
In short, this Court has carefully considered Plaintiff's Objections and concludes they do not provide a basis to modify the Findings and Recommendation. The Court also has reviewed the pertinent portions of the record de novo and does not find any error in the Magistrate Judge's Findings and Recommendation.
II. Ron Tonkin Honda's vexatious litigant request
Defendant Ron Tonkin Honda contends the Court should enter a "vexatious litigant" order against Plaintiff. Ron Tonkin Honda raises this request for the first time in its Response to Plaintiff's Objections and this issue was not presented to the Magistrate Judge. The Court, therefore, declines to address Ron Tonkin Honda's request because it is not properly before this Court at this time.
III. Plaintiff's Motion for Sanctions
Plaintiff moves for sanctions pursuant to Federal Rule of Civil Procedure 11 against Defendant Ron Tonkin Honda because in the Affidavit of Stephen P. Rickels attached to Ron Tonkin Honda's Motion to Dismiss, Rickels refers to and attaches documents that contain unredacted personal information of Plaintiff in violation of Federal Rule of Civil Procedure 5.2(a). The Court construes Plaintiff's Motion for Sanctions as a Motion to Seal the Rickels Affidavit and attachments thereto, and to that extent GRANTS the Motion to Seal, and DIRECTS the Clerk of Court to seal the Affidavit of Stephen P. Rickels and the attachments thereto submitted with Defendant Ron Tonkin Honda's Motion (#12) to Dismiss. To the extent Plaintiff seeks other relief or "sanctions" against Defendant Ron Tonkin Honda in this Motion, the Court, in the exercise of its discretion, denies Plaintiff's request.
In light of these rulings and the dismissal of this action, the Court denies all other pending motions (#4, #31, and #34) as moot.
CONCLUSION
The Court ADOPTS Magistrate Judge Papak's Findings and Recommendation (#50); GRANTS the Motion (#12) to Dismiss of Defendant Ron Tonkin Honda; GRANTS the Motion (#23) to Dismiss of Defendants American Honda Motor Company, Inc., and American Honda Finance Corporation; GRANTS Plaintiff's Motion (#43) to Seal; DIRECTS the Clerk of Court to seal the Affidavit of Stephen P. Rickels and the attachments thereto submitted with Defendant Ron Tonkin Honda's Motion (#12) to Dismiss; DENIES all other pending motions (#4, #31, and #34) as moot; and DISMISSES this matter without prejudice.
IT IS SO ORDERED.