IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

SUBRINA POUPAK SEHAT, 

Plaintiff, 

v. 

PROGRESSIVE UNIVERSAL INSURANCE, 

COMPANY OF ILLINOIS, WASHINGTON 

COUNTY SHERIFF'S DEPARTMENT, and 

CORBRIDGE & KROLL LAW FIRM, 

Defendants. 

BROWN, Judge. 

3:14-CV-01433-PK 

ORDER 

Magistrate Judge Paul Papak issued Amended Findings and 

Recommendation (#56) on February 26, 2015, in which he recommends 

this Court 

(1) Grant Defendant Progressive Universal Insurance 

Company's Motion (#27-1) to Dismiss and dismiss 

Plaintiff's Claims 1-5 against Progressive with 

prejudice; 

1 - ORDER 

Case 3:14-cv-01433-PK Document 99 Filed 08/26/15 Page 1 of 10
(2) Grant Progressive's Motion (#27-2) to Strike 

Plaintiff's conspiracy claim and "additional claims"; 

(3) Grant Defendant Washington County Sheriff's 

Department's (WCSO) Motion (#33-1) to Dismiss 

·Plaintiff's Claims 1-4, 6-8, 9-12, and 14 against WCSO 

and dismiss those claims with prejudice; 

(4) Deny with leave to refile WCSO's Motion (#33-2) for 

Summary Judgment as to Plaintiff's Claims 5, 13, and 

15-17 against WCSO; 

(5) Grant WCSO's Motion (#33-3) to Strike Plaintiff's 

conspiracy claim and "additional claims"; 

(6) Grant Defendant Corbridge & Kroll Law Firm's Motion 

(#39-1) to Dismiss and dismiss Plaintiff's claims 

against Corbridge & Kroll with prejudice; 

(7) Grant Corbridge & Kroll's Motion (#39-2) to Strike 

Plaintiff's conspiracy claim and "additional claims"; 

(8) Deny as moot Plaintiff's Motion (#19) for Permissive 

Joinder; 

(9) Deny as moot Plaintiff's Motion (#31) to Strike; 

(10) Deny Plaintiff's Motion (#20) to Stay; and 

(11) Deny Plaintiff's Motion (#21) to Set Aside State Court 

Judgment. 

On March 23, 2015, this Court issued an Order (#64) granting 

Plaintiff's Motions (#60, #63) for Extension of Time to respond 

2 - ORDER 

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to the Findings and Reconunendation. The Court directed Plaintiff 

to file any Objection to the Findings and Reconunendation no later 

than April 22, 2015. 

On April 28, 2015, this Court issued an Order (#85) granting 

Plaintiff's Motion (#80) for Extension of Time to File Objection 

to F&R. The Court directed Plaintiff to file any Objection to 

the Findings and Reconunendation no later than May 8, 2015. The 

Court advised Plaintiff that it would not grant Plaintiff any 

further extens·ion of time to file Objections. 

On May 12, 2015, Plaintiff filed Objections (#92, #93, #94) 

to the Findings and Reconunendation. 

On May 27, 2015, the Court entered an Order in which it 

noted Plaintiff failed to file her Objections by May 8, 2015, as 

directed in the Court's April 28, 2015, Order. The Court, 

therefore, struck Plaintiff's Objections and gave Plaintiff leave 

to show cause why the Court should consider her Objections timely 

filed. 

On May 29, 2015, Plaintiff filed an Answer to Order for 

Explanation related to her late filed Objections. 

On June 1, 2015, the Court entered an Order in which it 

concluded Plaintiff had not sufficiently explained her late 

filing and, therefore, ordered Plaintiff's Objections to remain 

3 - ORDER 

Case 3:14-cv-01433-PK Document 99 Filed 08/26/15 Page 3 of 10
stricken 1 and the Findings and Recommendation to be under 

advisement. The matter is now before this Court pursuant to 28 

U.S.C. § 636(b)(l)(B) and Federal Rule of Civil Procedure 72(b). 

Because no objections to the Magistrate Judge's Findings and 

Recommendation were timely filed, this Court is relieved of its 

obligation to review the record de nova. See Dawson v. Marshall, 

561 F.3d 930, 932 (9th Cir. 2009). See also United States v. 

Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en bane). 

Having reviewed the legal principles de nova, the Court, 

adopts the Findings and Recommendation as modified herein. 

DEFENDANTS' MOTIONS (#27-1, #33-1, #39) TO DISMISS 

PLAINTIFF'S CONSPIRACY CLAIM 

All Defendants moved to dismiss Plaintiff's conspiracy claim 

for failure to state a claim. The Magistrate Judge recommended 

granting Defendants' Motions to Dismiss Plaintiff's conspiracy 

claim for failure to state a claim and dismissing Plaintiff's 

conspiracy clai~ with prejudice. The Ninth Circuit, however, has 

made clear that when a plaintiff fails to state a claim, "[l]eave 

to amend should be granted unless the pleading 'could not 

possibly be cured by the allegation of other facts,' and should 

be granted more liberally to pro se plaintiffs." Alcala v. Rios, 

1 Although the Court struck Plaintiff's untimely Objections, 

the Court, nevertheless, reviewed the materials and finds the 

Court would not have reached a different result even if those 

materials had been considered. 

4 - ORDER 

Case 3:14-cv-01433-PK Document 99 Filed 08/26/15 Page 4 of 10
434 F. App'x 668, 670 (9th Cir. 2011) (quoting Ramirez v. Galaza, 

334 F.3d 850, 861 (9'h Cir. 2003)). Plaintiff is proceeding pro 

se, and it is unclear as to whether Plaintiff could possibly cure 

her failure to state a claim for conspiracy by alleging other 

facts. Accordingly, although the Court adopts the Magistrate 

Judge's recommendation to dismiss Plaintiff's conspiracy claim, 

the Court dismisses Plaintiff's conspiracy claim without 

prejudice and grants Plaintiff leave to amend to file a Second 

Amended Complaint to cure the deficiencies of that claim as set 

out in the Findings and Recommendation. 

DEFENDANT WCSO'S MOTION (#33-1) TO DISMISS 

PLAINTIFF'S STATE TORT CLAIMS 1-4, 6-8 

As noted, the Magistrate Judge recommends the Court dismiss 

with prejudice Plaintiff's Claims 1-4 and 6-8 against WCSO for 

failure to plead compliance with the tort claims notice 

requirement of the Oregon Tort Claims Act (OTCA), Oregon Revised 

Statute § 30.275. Although it is clear that Plaintiff has not. 

alleged facts sufficient to establish compliance with the notice 

requirement of the OTCA as set out in the Findings and 

Recommendation, it is not clear that Plaintiff could not cure her 

failure. The Court, therefore, declines to dismiss Plaintiff's 

Claims 1-4 and 6-8 against WCSO with prejudice. See, e.g. 

Rodriguez v. Central Sch. Dist. 13J, No. 12-CV-01223-HU, 2012 WL 

6756945, at *4 (D. Or. Nov. 14, 2012) ("The Oregon Supreme Court 

5 - ORDER 

Case 3:14-cv-01433-PK Document 99 Filed 08/26/15 Page 5 of 10
has held that the pleading and proof of notice sufficient to 

satisfy the requirements of O.R.S. 30.275 is a mandatory 

requirement and a condition precedent to recovery under the 

Oregon Tort Claims Act. Accordingly, the School's motion to 

dismiss Rodriguez's Second, Fourth, and Sixth Claims for Relief 

should be granted, and those claims should be dismissed without 

prejudice, allowing Rodriguez to take appropriate steps to amend 

her Complaint to allege the giving of proper notice under the 

OTCA. ")(emphasis in original). 

Accordingly, the Court adopts the Magistrate Judge's 

recommendation to dismiss Plaintiff's Claims 1-4 and 6-8 for 

failure to allege facts sufficient to establish compliance with 

the notice requirement of the OTCA. The Court, however, 

dismisses Plaintiff's Claims 1-4 and 6-8 against WCSO without 

prejudice and grants Plaintiff leave to amend to file a Second 

Amended Complaint to the extent that Plaintiff can allege facts 

to establish that she gave notice of Claims 1-4 and 6-8 to WCSO 

within 180 days of the alleged loss or injury. 

DEFENDANT CORBRIDGE & KROLL'S MOTION (#39) TO DISMISS 

The Magistrate Judge recommended the Court dismiss with 

prejudice Plaintiff's Claims 1-11 against Corbridge & Kroll for 

lack of subject-matter jurisdiction. Plaintiff has failed to 

establish this.Court has subject-matter jurisdiction over 

6 - ORDER 

Case 3:14-cv-01433-PK Document 99 Filed 08/26/15 Page 6 of 10
Plaintiff's Claims 1-11 against Corbridge & Kroll. The Ninth 

Circuit, however, had held "[o]rdinarily a case dismissed for 

lack of subject matter jurisdiction should be dismissed without 

prejudice so that a plaintiff may reassert his claims in a 

competent court." Frigard v. United States, 862 F.2d 201, 204 

(9th Cir. 1988). See also Craan v. U.S. Army Corps of Engineers, 

337 F. App'x 682, 683 (9th Cir. 2009). When another court has 

the power to hear the case, a court should dismiss a plaintiff's 

claims without prejudice. Id. 

Here, as noted in the Findings and Recommendation, the 

Oregon state courts have jurisdiction over Plaintiff's Claims 1-

11 against Corbridge & Kroll. Accordingly, the Court dismisses 

Plaintiff's Claims 1-11 against Corbridge & Kroll without 

prejudice. 

REMAINDER OF THE FINDINGS AND RECOMMENDATION 

As to the remainder of the Findings and Recommendation, the 

Court has reviewed the legal principles de nova and does not find 

any error or basis for modification of the Findings and 

Recommendation. The Court, therefore, adopts the remainder of 

the Findings and Recommendation without modification. 

CONCLUSION 

The Court ADOPTS as modified Magistrate Judge Acosta's 

7 - ORDER 

Case 3:14-cv-01433-PK Document 99 Filed 08/26/15 Page 7 of 10
Findings and Recommendation (#56). Accordingly, the Court 

(1) GRANTS Progressive's Motion (#27-1) to Dismiss and 

DISMISSES with prejudice Plaintiff's Claims 1-5 against 

Progressive and Plaintiff's "additional claims• against 

Progressive; 

(2) GRANTS Progressive's Motion (#27-2) to Strike 

Plaintiff's conspiracy claim and STRIKES that claim 

with leave to amend to cure the deficiencies set out in 

the Findings and Recommendation; 

(3) GRANTS WCSO's Motion (#33-1) to Dismiss Plaintiff's 

Claims 1-4, 6-8, 9-12, 14, and "additional claims• 

against WCSO, DISMISSES with prejudice Plaintiff's 

Claims 9-12, 14, and "additional claims,• and DISMISSES 

without prejudice Plaintiff's claims 1-4 and 6-8 with 

leave to amend to the extent that Plaintiff can allege 

facts to establish she gave notice to WCSO of Claims 1-

4 and 6-8 within 180 days of the alleged loss or 

injury; 

(4) DENIES WCSO's Motion (#33-2) for Summary Judgment as to 

Plaintiff's Claims 5, 13, and 15-17 against WCSO with 

leave to refile as set out in the Findings and 

Recommendation; 

(5) GRANTS WCSO's Motion (#33-3) to Strike Plaintiff's 

conspiracy claim and STRIKES that claim with leave to 

8 - ORDER 

Case 3:14-cv-01433-PK Document 99 Filed 08/26/15 Page 8 of 10
amend to cure the deficiencies set out in the Findings 

and Recommendation; 

(6) GRANTS Defendant Corbridge & Kroll's Motion (#39-1) to 

Dismiss, DISMISSES without prejudice Plaintiff's Claims 

1-11 against Corbridge & Kroll without leave to. amend, 

and DISMISSES with prejudice Plaintiff's "additional 

claimsn against Corbridge & Kroll; 

(7) GRANTS Corbridge & Kroll's Motion (#39-2) to Strike 

Plaintiff's conspiracy claim and STRIKES that claim 

with leave to amend to cure the deficiencies set out in 

the Findings and Recommendation; 

(8) DENIES as moot Plaintiff's Motion (#19) for Permissive 

Joinder; 

(9) DENIES as moot Plaintiff's Motion (#31) to Strike; 

(10) DENIES Plaintiff's Motion (#20) to Stay; and 

(11) DENIES Plaintiff's Motion (#21) to Set Aside State 

Court Judgment. 

Accordingly, until Plaintiff files a Second Amended 

Complaint and/or Defendants file further dispositive motions, 

this matter shall proceed only on Plaintiff's claims against 

Progressive for breach of contract and Plaintiff's claims against 

WCSO for excessive force, conditions of confinement, publicentity liability, due process, and excessive fine. 

Because this matter is proceeding before the Magistrate 

9 - ORDER 

Case 3:14-cv-01433-PK Document 99 Filed 08/26/15 Page 9 of 10
' ' ' ' 

Judge, the Court defers to the Magistrate ~udge to set a deadiine 

for Plaintiff to file a Second Amended Complaint to amend only 

the conspiracy claim against WCSO and Claims 1-4 and 6-8 against 

WCSO. 

IT IS SO ORDERED. 

DATED this 26th day of August, 2015. 

United States District Judge 

10 - ORDER 

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