Summary
In Travis, the plaintiffs alleged the defendant violated the ELL because their employer failed to use every precaution practicable to protect employees, which failures led to repetitive motion injuries, back problems, and vision impairment.
Summary of this case from Anderson v. Intel Corp.Opinion
Civil No. 00-393-HU
December 13, 2000
Craig A. Crispin Shelley D. Russell Crispin Associates Attorneys for plaintiffs.
Paul C. Buchanan Sharon A. Hill Stoel Rives LLP Portland, Oregon Attorneys for defendant.
OPINION AND ORDER
On October 6, 2000, Magistrate Judge Hubel filed Findings and Recommendation that defendant's motion to dismiss be 1) granted with leave to replead as to the fraud claim, the Employer Liability Act claim, and the wrongful discharge claim; 2) granted with prejudice as to the gross negligence claim; and 3) denied as to the claims for intentional infliction of emotional distress and negligence.
The matter is now before me pursuant to 28 U.S.C. § 636 (b)(1)(A) and Rule 72(b) of the Federal Rules of Civil Procedure. Section (b)(1) (A) authorizes a magistrate to hear and determine any pretrial matter pending before the court except certain specified "dispositive" motions.United States v. Raddatz, 447 U.S. 670, 673 (1980). Review by the district court of the magistrate's determination of dispositive motions excepted under § 636(b)(1)(A) is de novo. Id.; Bhan v. NME Hospitals. Inc., 929 F.2d 1404, 1414 (9th Cir. 1991). Plaintiffs have filed timely objections to Magistrate Hubel's Findings and Recommendation. I have considered the parties' legal arguments and reviewed the authority cited. I agree with Judge Hubel's conclusions.
I am not persuaded by the plaintiffs' argument that their relationship with their employer should be deemed one of principal and agent or otherwise regarded as a "special relationship" for purposes of the gross negligence claim. I am also unpersuaded by the argument that the potential for overuse injuries in a legal secretary and a legal assistant could justify regarding their jobs as so inherently or uncommonly dangerous as to fall within the Employers Liability Act. I agree with Judge Hubel that the plaintiffs' claim for intentional infliction of emotional distress should be limited to the allegations that the defendant required the plaintiffs to assist in dishonest billing and forced them to perform tasks which aggravated their injuries. And I agree with Judge Hubel's thorough and closely-reasoned analysis of the wrongful discharge claim.
Therefore, I ADOPT Magistrate Judge Hubel's Findings and Recommendation filed October 6, 2000 (doc. #34). these motion to dismiss (doc. # 27) is granted without prejudice as to plaintiffs' fraud claim, Employer Liability Act claim, and wrongful discharge claim; granted with prejudice as to the gross negligence claim, and denied as to the intentional infliction of emotional distress and negligence claims. Plaintiffs have 30 days from the date of this Opinion and Order to file an amended complaint.
IT IS SO ORDERED.