Opinion
Case No. 00-1245-ST.
May 25, 2001.
OPINION AND ORDER
Magistrate Judge Janice M. Stewart filed Findings and Recommendations on March 29, 2001, and April 4, 2001, in the above entitled case (respectively #79, #87). The matter is now before me pursuant to 28 U.S.C. § 636(b)(1)(B) and Fed.R.Civ.P. 72(b). When either party objects to any portion of a magistrate judge's Findings and Recommendation, the district court must make a de novo determination of that portion of the magistrate judge's report. See 28 U.S.C. § 636 (b)(1); McDonnell Douglas Corp. v. Commodore Business Machines, Inc., 656 F.2d 1309, 1313 (9th Cir. 1981), cert. denied, 455 U.S. 920 (1982).
The parties have timely filed objections. I have, therefore, given de novo review of Magistrate Judge Stewart's rulings. The facts are not repeated herein, as Judge Stewart's presentation of the facts has not been challenged.
A. Findings and Recommendation (#79)
Defendant Foss objects to Judge Stewart's Findings and Recommendation (#79), arguing that Foss has stated a claim under the Oregon Unfair Trade Practices Act (UTPA). Judge Stewart found that Foss' counterclaim under the UTPA involves the services and/or goods provided by FDS Marine in the course of its repair work on the ways, and because these goods and/or services are not the type of goods or services generally used for "personal, family or household" needs, as required by the UTPA, Foss has failed to state a claim.
To determine whether goods or services are generally used for personal, family, or household needs, the court must look at the customary or predominant purpose which is to be used in characterizing the transaction. It is apparent, as found by Judge Stewart, that services and goods used to repair ways are not generally and customarily used for personal, family, or household uses. Foss does not appear to contest this determination, but instead argues that some of Foss' allegations do not involve goods and/or services, but instead involve allegations of making false or misleading representations or employing unconscionable tactics in connection with the enforcement of an obligation. (Foss' Obj. 4).
O.R.S. 646.608(1)(k) provides: "(1) a person engages in an unlawful practice when in the course of the person's business, vocation or occupation the person does any of the following:. . . (k) Makes false or misleading representations concerning credit availability or the nature of the transaction or obligation incurred." In addition, O.R.S. 646.607(1) provides "A person engages in an unlawful practice when in the course of the person's business, vocation or occupation the person: (1) employs any unconscionable tactic in connection with sale, rental or other disposition of real estate, goods or services, or collection or enforcement of an obligation." Reading these two sections of the Act in isolation gives the impression that a person may bring an action under the UTPA that does not involve goods or services. However, reading these sections in their context as part of an Act providing consumers recourse for improper activity regarding goods or services indicates that to bring a claim under the UTPA, the claim must involve goods and/or services, as defined in the Act. For example, the headings of 646.607 and 646.608 refer to "goods or services" and "trade practices" which is defined using the terms "goods or services." It appears inappropriate to apply these provisions to a claim not involving goods and services. Accordingly, I ADOPT Judge Stewart's Findings and Recommendation (#79) filed on March 29, 2001 in its entirety.
B. Findings and Recommendation (#87)
Plaintiff objects to Judge Stewart's Findings and Recommendation (#87), arguing first that it has raised a question of fact as to whether it has a salvage claim against defendant Shaver, and second that it has raised a question of fact as to whether it has a quantum meruit claim against defendant Shaver.
1. Salvage Claim
In order to prevail on a salvage claim, a plaintiff must demonstrate the following: (1) a maritime peril; (2) service voluntarily rendered when not required as an existing duty or from a special contract; and (3) success in whole or in part, or that the service rendered contributed to such success. The SABINE, 101 U.S. 384 (1879).
Plaintiff disputes Judge Stewart's determination that it failed to raise a question of fact as to whether plaintiff performed any voluntary services for Shaver. Judge Stewart essentially found that plaintiff was only at the site because Foss contacted plaintiff, and further that because Foss and plaintiff had an admitted contract to perform services, i.e. fixing the ways, plaintiff was under a preexisting duty to act, and any services rendered were a result of this contractual relationship. The record supports Judge Stewart's finding.
2. Quantum Meruit
Plaintiff also objects to Judge Stewart's finding that it failed to raise a question of fact as to its quantum meruit claim against defendant Shaver. Quantum meruit is a remedial device which the law has formulated to permit recovery for services or materials from a party even though under the law of express contracts that party would not be obligated to pay. Kashmir Corp. v. Patterson, 289 Or. 589, 590 (1980). The elements of a quantum meruit claim are as follows: (1) a benefit conferred; (2) awareness by the recipient that a benefit has been received; and (3) under the circumstances, it would be unjust to allow retention of the benefit without requiring the recipient to pay for it. Yanney v. Koehler, 147 Or. App. 269, 278 (1997). Judge Stewart found no injustice in denying plaintiff's attempts to collect payment from Shaver because: (1) plaintiff could not have reasonably expected payment from Shaver; (2) Shaver could not have expected to pay plaintiff for its services; and (3) society's reasonable expectations of security of person and property is not defeated by non-payment. I agree with Judge Stewart's analysis.
Accordingly, I ADOPT Judge Stewart's Findings and Recommendation (#87) filed on April 4, 2001, in its entirety.
CONCLUSION
Because Foss has failed to allege facts upon which it might prevail regarding its claim under the UTPA, plaintiff's motion to dismiss (#28) is GRANTED in part, and DENIED in part. Plaintiff's motion to dismiss Foss' Fifth Counterclaim for a violation of the UTPA is GRANTED, and the remainder of the motion is DENIED. Because plaintiff has failed to establish questions of fact exist as to plaintiff's salvage claim against Shaver and its quantum meruit claim against Shaver, defendant Shaver's motion for summary judgment on the issue of salvage (#16) and the issue of quantum meruit (#31) are GRANTED. Defendant Shaver is dismissed from this action.
IT IS SO ORDERED.