IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

MICHAEL MAKANEOLE, individually 3:14-CV-01528-PK

and on behalf of all similarly 

situated, ORDER

Plaintiff, 

v. 

 

SOLARWORLD INDUSTRIES AMERICA,

INC.; SOLARWORLD INDUSTRIES

AMERICA, LP; SOLARWORLD

INDUSTRIES SERVICES, LLC;

SOLARWORLD POWER PROJECTS,

INC., RANDSTAD PROFESSIONALS US,

LP, and KELLY SERVICES, INC.,

 Defendants.

BROWN, Judge.

Magistrate Judge Paul Papak issued Findings and

Recommendation (#43) on December 8, 2014, in which he recommends

the Court deny the Motion (#7) to Dismiss of Defendant Kelly

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Services, Inc.; grant Kelly Service’s Alternative Motion (#7) for

More Definite Statement pursuant to Rule 12(e); grant in part and

deny in part the Motion (#10) to Dismiss of Defendant Randstad

Professionals U.S., LP; dismiss with prejudice Plaintiff’s Third

Claim as to all Defendants; dismiss without prejudice Plaintiff’s

First and Second Claims as to all Defendants; and grant Plaintiff

thirty days to file an Amended Complaint consistent with the

Findings and Recommendation. 

Plaintiff 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 Federal Rule of Civil Procedure 72(b).

I. Portions of the Findings and Recommendation to which

Plaintiff does not object.

Plaintiff does not object to any part of the Findings and

Recommendation other than the Magistrate Judge’s recommendation

to dismiss with prejudice Plaintiff’s Third Claim. 

When a party does not object to portions of a Magistrate

Judge’s Findings and Recommendation, this Court is relieved of

its obligation to review the record de novo as to those portions

of the Findings and Recommendation. See Dawson v. Marshall, 561

F.3d 930, 932 (9th Cir. 2009). See also United States v. ReynaTapia, 328 F.3d 1114, 1121 (9th Cir. 2003)(en banc). Having

reviewed the legal principles de novo as to those portions of the

Findings and Recommendation to which Plaintiff does not object,

the Court does not find any error.

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II. Portions of the Findings and Recommendation to which

Plaintiff objects.

As noted, Plaintiff objects only to the Magistrate Judge’s

recommendation to dismiss with prejudice Plaintiff’s Third Claim.

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 Dawson v. Marshall, 561

F.3d 930, 932 (9th Cir. 2009); United States v. Reyna-Tapia, 328

F.3d 1114, 1121 (9th Cir. 2003)(en banc). 

The Magistrate Judge notes in the Findings and

Recommendation that Plaintiff's Third Claim for Defendants'

failure to pay wages on termination in violation of Oregon

Revised Statute § 652.140 is based on the same factual

allegations as those underlying Plaintiff’s Second Claim for

Defendants' failure to pay overtime in violation of Oregon

Revised Statute § 653.261. The Magistrate Judge, however, finds

under Oregon law that a plaintiff may not seek two penalties for

violations of wage-and-hour laws based on the same underlying

facts. See Hurger v. Hyatt Lake Resort, Inc., 170 Or. App. 320,

323 (2001). See also Cornier v. Paul Tulacz, DVM PC, 176 Or.

App. 245, 247 (2001). Because the Magistrate Judge concludes

Plaintiff seeks two penalties based on the same set of facts, he

recommends the Court dismiss Plaintiff’s Third Claim with

prejudice. 

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Plaintiff asserts in his Objections that the Magistrate

Judge erred when he recommended the Court dismiss Plaintiff’s

Third Claim with prejudice because (1) Oregon courts permit

recovery of a double penalty based on facts that allege more than

one wage-and-hour law violation and/or (2) in this putative class

action there may be plaintiffs who have claims for regular wages

that remain unpaid even though their employment has ended, but

who do not have overtime claims. According to Plaintiff, if the

Court dismisses Plaintiff’s Third Claim with prejudice, the class

members who only have claims for regular wages that remain unpaid

after termination would be unable to obtain any penalty because

they would be ineligible to recover a penalty for Defendants’

failure to pay overtime wages and they would be foreclosed from

seeking a penalty for Defendants’ failure to pay regular wages on

termination.

The Court disagrees with Plaintiff’s first assertion related

to an award of double penalties and concludes the Magistrate

Judge did not err when he found Plaintiff seeks penalties in his

Second Claim for Defendants’ alleged failure to pay Plaintiff

overtime wages upon termination that are duplicative of the

penalties Plaintiff seeks in his Third Claim for Defendants’

alleged failure to pay overtime wages during employment. The

Court also concludes the Magistrate Judge did not err when he

found Plaintiff is barred from seeking such duplicative penalties

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by Hurger and Cornier.

Plaintiff’s second assertion, however, is well-taken. 

Federal Rule of Civil Procedure 8(d)(2) provides: “A party may

set out 2 or more statements of a claim or defense alternatively

or hypothetically, either in a single count or defense or in

separate ones. If a party makes alternative statements, the

pleading is sufficient if any one of them is sufficient." 

Accordingly, Plaintiff is permitted to plead claims in the

alternative and it is premature to dismiss Plaintiff’s Third

Claim with prejudice. The Court, therefore, declines to adopt

that portion of the Findings and Recommendation in which the

Magistrate Judge recommends the Court dismiss Plaintiff’s Third

Claim with prejudice. The Court instead dismisses Plaintiff’s

Third Claim without prejudice to allow Plaintiff to allege his

Third Claim in the alternative.

CONCLUSION

The Court ADOPTS as modified Magistrate Judge Papak’s

Findings and Recommendation (#43). Accordingly, the Court:

1. DENIES Kelly Services’ Motion (#7) to Dismiss; 

2. GRANTS Kelly Services’ Alternative Motion (#7) for More

Definite Statement pursuant to Rule 12(e); 

3. GRANTS Randstad Professionals’ Motion (#10) to Dismiss

as to Plaintiff’s First, Second, and Third Claims; 

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4. DENIES Randstad Professionals’ Motion (#10) to Dismiss

as to Plaintiff’s request for attorneys’ fees;

5. DISMISSES without prejudice Plaintiff’s First, Second,

and Third Claims; and 

6. GRANTS Plaintiff leave to file an Amended Complaint no

later than April 6, 2015, to cure the deficiencies set

out in the Findings and Recommendation.

IT IS SO ORDERED.

DATED this 9th day of March, 2015.

/s/ Anna J. Brown

 

ANNA J. BROWN

United States District Judge

6 - ORDER

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