The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
CURTIS BAILEY; MICHAEL BELL; STACI No. 3:22-cv-292-YY
BRITTON; JAMES C. BROWN, III; WENDEE
CLEVERINGA; RICHARD DANIEL; ORDER
STEPHANIE DANIEL; SUZANNE DICKSON;
THOMAS HYDE; BRENNEN LANG; TAMARA
LUKES; JENNIFER RUSSELL; J.R., by and
through his Guardian Ad Litem, Jennifer Russell;
K.R., by and through his Guardian Ad Litem,
Jennifer Russell; L.R., by and through her Guardian
Ad Litem, Jennifer Russell; TABITHA THURSTON;
K.T., by and through her Guardian Ad Litem, Tabitha
Thurston; and Z.T., by and through his Guardian Ad
Litem, Tabitha Thurston
Plaintiffs,
v.
POLYGON NORTHWEST COMPANY, LLC;
POLYGON NORTHWEST COMPANY; TAYLOR
MORRISON NORTHWEST, LLC; and WILLIAM
LYON HOMES, INC.,
Defendants.
HERNÁNDEZ, District Judge:
Magistrate Judge You issued a Findings and Recommendation on August 23, 2022, in
which she recommends that this Court grant in part and deny in part Defendants’ motion to
dismiss. F&R, ECF 19. The matter is now before the Court pursuant to 28 U.S.C. § 636(b)(1)(B)
and Federal Rule of Civil Procedure 72(b).
Both Plaintiffs and Defendants filed timely objections to the Magistrate Judge’s Findings
and Recommendation. Pl. Obj., ECF 21; Def. Obj., ECF 22. When any party objects to any
portion of the Magistrate Judge’s Findings & 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);
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 Court has carefully considered Plaintiffs’ and Defendants’ objections and has
reviewed the pertinent portions of the record de novo. The Court makes the following corrections
to the F&R:
1. The Court finds that only Plaintiffs Brown and Bell (rather than Bailey) are
eligible to recover damages for emotional distress on their negligence claims and may
proceed with their claims for negligent infliction of emotional distress. See F&R 12, 20.
2. For Plaintiffs other than Brown and Bell, the Court finds that the circumstances
giving rise to their claims are similar to the plaintiffs in Meyer v. 4-D Insulation Co., Inc.,
60 Or. App. 70, 652 P.2d 852 (1982) rather than the plaintiff in Macca v. General
Telephone Co. of the Northwest, Inc., 262 Or. 414, 495 P.2d 1193 (1972). See F&R 17.
Otherwise, the Court finds no error and concludes that there is no basis to modify the Magistrate
Judge’s Findings & Recommendation.
CONCLUSION
The Court ADOPTS Magistrate Judge You’s Findings and Recommendation [19].
Therefore, Defendants’ Motion to Dismiss and Motion for a More Definite Statement [10] is
GRANTED in part and DENIED in part. Defendants’ motion is granted as to Plaintiff’s private
nuisance claims. Except for claims brought by Plaintiffs Bell and Brown, Defendants’ motion is
also granted as to claims for negligent infliction of emotional distress and for all other claims
seeking emotional distress damages. Otherwise, Defendants’ motion is denied.
IT IS SO ORDERED.
DATED: ___N_o__v_e_m_b_e__r _2_3_,_ 2_0_2_2____.
___________________________
MARCO A. HERNÁNDEZ
United States District Judge