United States District Court, D. Montana, Billings Division
v. RITA OPIE, Plaintiff, CVS CAREMARK, Defendant.
P. WATTERS, UNITED STATES DISTRICT JUDGE.
Caremark has moved to dismiss Rita Opie's Amended
Complaint and to Compel Arbitration of Plaintiff s Claims.
(Doc. 3). On June 30, 2017, Magistrate Judge Timothy Cavan
issued his Findings and Recommendations recommending that
this Court deny CVS's motion to dismiss but grant its
motion to compel arbitration. (Doc. 23).
party timely objects to any portion of the magistrate
judge's Findings and Recommendations, the district court
must conduct a de novo review of the portions of the Findings
and Recommendations to which objections are made. 28 U.S.C.
§ 636(b)(1)(C); McDonnell Douglas Corp. v.
Commodore Business Machines, 656 F.2d 1309,
1313 (9th Cir. 1981). The district court may then
"accept, reject, or modify the recommended decision,
receive further evidence, or recommit the matter to the
magistrate with instructions." 28 U.S.C. §
636(b)(1). The district court is not required to review the
factual and legal conclusions of the magistrate judge to
which the parties do not object. United States v.
Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003).
filed timely objections to Judge Cavan's Findings and
Recommendations. (Docs. 25). After independently reviewing
and considering Opie's objections and CVS's response,
this Court adopts Judge Cavan's findings and
recommendations, as set forth below.
does not object to the factual history contained in the
Background section of Judge Cavan's Findings and
Recommendations. Judge Cavan's Background section is
therefore adopted in full.
because the Arbitration Policy here is made between citizens
of different states and involves interstate commerce, the
Federal Arbitration Act governs. See Elmore v. CVS
Pharmacy, Inc., 2016 WL 6635625, *3 (CD. Cal. Nov. 9,
2016) (finding the FAA governed the same CVS Arbitration
Policy that is at issue in this action). The FAA provides
that an agreement to arbitrate disputes arising from a
contract shall be "valid, irrevocable, and enforceable,
save upon such grounds as exist at law or in equity for the
revocation of any contract." 9 U.S.C. § 2.
"The Court's role under the [FAA] is ... limited to
determining (1) whether a valid agreement to arbitrate exists
and, if it does (2) whether the agreement encompasses the
dispute at issue." Chiron Corp. v. Ortho Diagnostic
Sys., Inc., 207 F.3d 1126, 1130 (9th Cir. 2000). The
burden of establishing these two elements is on the party
seeking to compel arbitration. Ashbey v. Archstone
Property Mgmt, Inc., 785 F.3d 1320, 1323 (9th Cir.
2015). "[A]ny doubts concerning the scope of arbitrable
issues should be resolved in favor of arbitration."
Moses Ashbey v. Archstone Property Mgmt., Inc., 460
U.S. 1, 24-25 (1983), superseded by statute on other
grounds. Because arbitration is a matter of contract,
however, "a party cannot be required to submit to
arbitration any dispute which he has not agreed so to
submit." AT & T Techs., Inc. v. Commc'ns
Workers of Am., 475 U.S. 643, 648 (1986).
considering a motion to compel arbitration, the court applies
a standard similar to the summary judgment standard of
Federal Rule of Civil Procedure 56(a). Three Valleys
Municipal Water District v. E.F Hutton & Company
Inc., 925 F.2d 1136, 1141 (9th Cir. 1991) see also
Concat LP v. Unilever, PLC, 350 F.Supp.2d 796, 804 (N.D.
Cal. 2004). A court may consider evidence outside of the
pleadings, such as declarations and other documents filed
with the court. Id.
objects to Judge Cavan's factual finding that she
consented to the Arbitration Policy. In Opie's Objection
A to Judge Cavan's recommendations, she argues that Judge
Cavan erred in recommending that the arbitration agreement
was legal under Montana law. (Doc. 25 at 1-6). Her remaining
objections B-K consist of a duplication of her arguments
already presented to Judge Cavan. (Id. at 6-9). As
explained below, in light of the requirements of the Federal
Rules of Civil Procedure, the court declines to engage in de
novo review of those objections.
Rule of Civil Procedure 72 provides that a party may serve
and file "specific written objections to the proposed
findings and recommendations." Fed.R.Civ.P. 72. The
local rule of civil procedure goes on to state that such
written objections shall specify "each recommendation of
the magistrate judge to which objection is made, setting
forth the authority the party relies on to contradict that
recommendation." D. Mont. L. R. 72.3(a)(2). In other
words, an objecting party must identify specific errors in
the magistrate judge's analysis without simply rehashing
arguments already raised to the magistrate judge. See,
e.g., Edmond v. Collins,8 F.3d 290, 293 n.7 (5th Cir.
1993) (holding that "[a]lthough petitioner filed written
objections to the magistrate's findings, these objections
consisted solely of a copy of the brief filed to support the
original habeas petition to the district court. . . .
[Petitioner] thus did not raise a factual objection by merely
rearguing arguments contained in the original
petition."); see also Goney v. Clark, 749 F.2d