Craft Brew Alliance, Inc. v. Baxter, Bailey & Associates, Inc.

Motion to Dismiss for Failure to State a Claim or Stay.

D. Or.March 21, 2017

Page 1 - DEFENDANT’S MOTION TO DISMISS OR STAY (Clients\6422\6422-1\Litigation\Motion to Dismiss or Stay.docx 3/21/2017) ANDERSON and YAMADA, P.C. Attorneys at Law 9755 SW Barnes Rd., Suite 675 Portland, Oregon 97225 (503) 227-4586 Kevin M. Anderson OSB No. 090802 kevin@aylawfirm.com ANDERSON AND YAMADA, P.C. 9755 SW Barnes Road, Suite 675 Portland, OR 97225 Telephone: 503-227-4586 Facsimile: 503-227-7044 Attorneys for Defendant Baxter Bailey & Associates, Inc. UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION CRAFT BREW ALLIANCE, INC., a Washington corporation, Plaintiff, v. BAXTER BAILEY & ASSOCIATES, INC., a Mississippi corporation, Case No. 3:17-cv-00215-YY DEFENDANT’S MOTION TO DISMISS OR STAY Defendant. LR 7-1 CERTIFICATION Pursuant to Local Rule 7-1, counsel for Defendant and Plaintiff conferred telephonically in a good faith effort to resolve this matter, but have been unable to resolve it. MOTION Baxter Bailey & Associates, Inc. (“Baxter Bailey”) files this Motion seeking to dismiss or stay Craft Brew Alliance, Inc.’s (“Craft Brew”) complaint under the principles of federal comity Case 3:17-cv-00215-YY Document 9 Filed 03/21/17 Page 1 of 14 Page 2 - DEFENDANT’S MOTION TO DISMISS OR STAY (Clients\6422\6422-1\Litigation\Motion to Dismiss or Stay.docx 3/21/2017) ANDERSON and YAMADA, P.C. Attorneys at Law 9755 SW Barnes Rd., Suite 675 Portland, Oregon 97225 (503) 227-4586 or, in the alternative, to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6). The reasons and support for this Motion are set forth in the accompanying memorandum of law which is hereby incorporated in this Motion. LEGAL MEMORANDUM The resolution of Craft Brew’s claims ultimately rests upon the determination of whether Baxter Bailey may collect unpaid freight charges from Craft Brew and its customers. That same fundamental question is already being addressed in litigation pending, In re Network F.O.B., Inc., U.S. Bankruptcy Court for the Middle District of Florida, Case No. 3:16-bk-3416-PMG (the “Bankruptcy Court” or “Network bankruptcy”). This proceeding is, therefore, duplicative and the Court should abstain from exercising jurisdiction to avoid unnecessary costs and the possibility of inconsistent adjudications of the same issue. In the alternative, Craft Brew’s First Claim for Relief fails to state a claim for which relief may be granted and that claim must be dismissed as a matter of law. I. FACTUAL AND PROCEDURAL BACKGROUND Baxter Bailey is a Mississippi corporation in the business of collecting assigned motor carrier freight charge receivables. Specifically, motor carriers assign Baxter Bailey their rights under bills of lading which render the shippers and/or consignees liable for paying the freight charges owed for the motor carriers’ transportation services. Craft Brew is a shipper that used one or more of the motor carriers whose interests have been assigned to Baxter Bailey to transport Craft Brew’s freight. Instead of coordinating the shipping logistics itself, Craft Brew retained the freight broker services of Network F.O.B., Inc. (“Network”). Case 3:17-cv-00215-YY Document 9 Filed 03/21/17 Page 2 of 14 Page 3 - DEFENDANT’S MOTION TO DISMISS OR STAY (Clients\6422\6422-1\Litigation\Motion to Dismiss or Stay.docx 3/21/2017) ANDERSON and YAMADA, P.C. Attorneys at Law 9755 SW Barnes Rd., Suite 675 Portland, Oregon 97225 (503) 227-4586 A freight broker is an intermediary that selects the carrier, negotiates the shipping rate, and acts as conduit for facilitating the payment of the carrier’s freight charges. Importantly, while a freight broker often only bills one amount to its customer, the amount billed by a freight broker to its customer includes distinctly separate amounts: (a) the freight charges owed to the motor carriers and (b) the broker’s commission on the shipment. Craft Brew claims it paid Network for the shipments for which Baxter Bailey is owed motor carrier freight charges. Network is now bankrupt, but neither Craft Brew nor Network paid the motor carriers. In September 2016, creditors forced Network into an involuntary chapter 7 bankruptcy. Central to Network’s chapter 7 proceeding are the competing ownership claims to accounts receivable amounts made by Network’s factoring company, CSNK Working Capital Finance Corp. d/b/a Bay View Funding (“Bay View”), the bankruptcy estate, and motor carriers, including their assignees like Baxter Bailey. On December 7, 2016, the Bankruptcy Court granted Bay View relief from the automatic stay (the “Stay Relief Order”) such that Bay View was exclusively authorized to collect all unpaid receivables owed to Network and hold those funds in trust until the Bankruptcy Court is able to resolve the competing claims to those funds. While the Stay Relief Order prevented Baxter Bailey from collecting amounts which had not been paid to Network or Bay View, the Stay Relief Order did not preclude Baxter Bailey from enforcing its assigned rights under the bills of lading which entitle Baxter Bailey to collect unpaid freight charges from the shippers and/or consignees. Baxter Bailey and Bay View have been litigating the dispute over Baxter Bailey’s rights to collect the freight charges directly from shippers and consignees since July 2016. Bay View claims to be a secured lender as well as an assignee of all of Network’s accounts receivables. On Case 3:17-cv-00215-YY Document 9 Filed 03/21/17 Page 3 of 14 Page 4 - DEFENDANT’S MOTION TO DISMISS OR STAY (Clients\6422\6422-1\Litigation\Motion to Dismiss or Stay.docx 3/21/2017) ANDERSON and YAMADA, P.C. Attorneys at Law 9755 SW Barnes Rd., Suite 675 Portland, Oregon 97225 (503) 227-4586 July 27, 2016, Bay View commenced litigation against Baxter Bailey in the U.S. District Court for the Northern District of California in the matter captioned CSNK Working Capital Finance Corp. d/b/a Bay View Funding v. Baxter Bailey & Associates, Inc., Case No. 5:16-cv-4234 (the “California Case”). Bay View initially sought a preliminary injunction preventing Baxter Bailey from continuing its collections activities, but the district court summarily denied Bay View’s request. Baxter Bailey counterclaimed for Bay View’s interference into Baxter Bailey’s collections efforts. Bay View’s other claims in the California Case seek a declaration that Baxter Bailey may not collect from shippers as well as contending that Baxter Bailey interfered with Bay View’s contracts by seeking collections based upon the bills of lading-the same claims alleged here by Craft Brew. Bay View submitted a notice of stay in the California Case following the commencement of the Network bankruptcy, and, while no formal stay order has been entered in the California Case, the court has deferred to the Bankruptcy Court to initially address the rights of the parties to the receivables. Baxter Bailey has abided by the Stay Relief Order and has not pursued collection of funds which have not been paid to either Network or Bay View. Even before the Stay Relief Order was entered, Baxter Bailey focused its collections efforts solely on those amounts for which it is still owed under the bills of lading where the shipper or consignee have already paid Network or Bay View the amount billed by Network. Pursuant to established precedent, the shippers and consignees remain liable for the freight charges where the broker fails to fulfill the shipper’s obligation to pay the motor carriers. Essentially, by electing to pay a broker without ensuring that the underlying charges owed to the carrier are satisfied, a shipper opens itself to potentially paying the freight charges twice. The tension between Baxter Bailey’s pursuit of Case 3:17-cv-00215-YY Document 9 Filed 03/21/17 Page 4 of 14 Page 5 - DEFENDANT’S MOTION TO DISMISS OR STAY (Clients\6422\6422-1\Litigation\Motion to Dismiss or Stay.docx 3/21/2017) ANDERSON and YAMADA, P.C. Attorneys at Law 9755 SW Barnes Rd., Suite 675 Portland, Oregon 97225 (503) 227-4586 collections under the bills of lading and Bay View’s claim that it is the owner of all Network receivables has led to Bay View filing a motion for contempt of the Stay Relief Order in the Bankruptcy Court on February 6, 2017 (the “Bankruptcy Motion”). Baxter Bailey’s collection efforts directed towards Craft Brew are central to the Bankruptcy Motion. The Bankruptcy Motion even refers to the same emails which are quoted in Craft Brew’s Complaint. The Bankruptcy Motion also includes numerous emails between counsel for Craft Brew and the lawyers representing Bay View in the Network bankruptcy and California Case. Furthermore, counsel for Craft Brew in this case, Jeanne Sinnott, submitted a declaration in the Florida Network bankruptcy case, in support of the Bankruptcy Motion and has made herself a witness in the bankruptcy case. On February 9, 2017, Craft Brew filed the instant action alleging that Baxter Bailey’s collections efforts violated Oregon state business practice law, tortuously interfered with Craft Brew’s business relationships, and seeking a declaration that Baxter Bailey cannot collect freight charges from Craft Brew and Craft Brew’s unnamed customers. In total, Craft Brew is seeking $200 from Baxter Bailey. Meanwhile litigation and discovery continue to progress in the Network bankruptcy regarding Baxter Bailey’s collections activities and its communications with Craft Brew and its customers. II. LEGAL AUTHORITY AND ARGUMENT The doctrine of federal comity and the equitable principles relevant to consideration of whether a court should dismiss duplicative litigation must guide the Court to a determination that adjudication of the issues raised herein should be deferred to Bankruptcy Court. To the extent that the Court determines that it may properly exercise jurisdiction over this parallel action, Craft Case 3:17-cv-00215-YY Document 9 Filed 03/21/17 Page 5 of 14 Page 6 - DEFENDANT’S MOTION TO DISMISS OR STAY (Clients\6422\6422-1\Litigation\Motion to Dismiss or Stay.docx 3/21/2017) ANDERSON and YAMADA, P.C. Attorneys at Law 9755 SW Barnes Rd., Suite 675 Portland, Oregon 97225 (503) 227-4586 Brew’s First Claim for Relief must be dismissed as it fails to state a claim for which relief may be granted as a matter of law. a. Motion to Dismiss or Stay The Court should abstain from exercising jurisdiction over this action as a concurring proceedings is pending in the Bankruptcy Court. Lehmann v. Fleet Fin., Inc., 933 F.2d 1014 (9th Cir. 1991) (finding principles of sound judicial administration made it proper for the district court to defer to a bankruptcy court where a parallel action was pending). The doctrine of federal comity, sometimes referred to as the “first to file” rule, holds one federal court may defer to another upon “considerations of wise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation” where two federal courts are simultaneously adjudicating the same matter. Colorado River Water Conserv. Dist. v. United States, 424 U.S. 800, 817 (1976) (quoting Kerotest Mfg. Co. v. C-O-Two Fire Equip. Co., 342 U.S. 180, 183 (1952)) (internal quotations and alterations omitted). Courts are given “an ample degree of discretion” in deciding whether to stay or dismiss a case due to duplicative federal litigation. Kerotest, 342 U.S. at 183-184. The doctrine of federal comity is “not a rigid or inflexible rule to be mechanically applied, but rather is to be applied with a view to the dictates of sound judicial administration.” Pacesetter Systems, Inc. v. Medtronic, Inc., 678 F.2d 93, 95 (9th Cir. 1982). Here, the claims, parties, and relief do not significantly differ between Craft Brew’s complaint and the Bankruptcy Motion. Thus, the Court should defer to the Bankruptcy Court. The core issue in dispute in this action and the Network bankruptcy litigation is whether Baxter Bailey properly sought to collect freight charges from Craft Brew and its customers Case 3:17-cv-00215-YY Document 9 Filed 03/21/17 Page 6 of 14 Page 7 - DEFENDANT’S MOTION TO DISMISS OR STAY (Clients\6422\6422-1\Litigation\Motion to Dismiss or Stay.docx 3/21/2017) ANDERSON and YAMADA, P.C. Attorneys at Law 9755 SW Barnes Rd., Suite 675 Portland, Oregon 97225 (503) 227-4586 pursuant to the bills of lading assigned to Baxter Bailey by the motor carriers which actually performed the transportation services. “To determine whether two suits involve substantially similar issues, we look at whether there is ‘substantial overlap’ between the two suits.” Kohn Law Grp., Inc. v. Auto Parts Mfg. Mississippi, Inc., 787 F.3d 1237, 1241 (9th Cir. 2015) (quoting Harris Cty., Tex. v. CarMax Auto Superstores Inc., 177 F.3d 306, 319 (5th Cir. 1999)). Here, Craft Brew asserts that there were bills of lading issued for each of the shipments with the motor carriers in addition to the agreement Craft Brew had Network, but alleges that Baxter Bailey has no right to enforce those bills of lading. The issue of whether Baxter Bailey has rights under the bills of lading is central to the overarching resolution of the dispute between Baxter Bailey and Bay View which was the subject of the California Case and is now left for the Bankruptcy Court to resolve. Baxter Bailey has the right to collect the unpaid freight charges from Craft Brew and its customers, and as such, the adjudication of Baxter Bailey’s right resolves the claims in this matter.1 Thus, the issue here is duplicative of the issue pending before the Bankruptcy Court. The true parties necessary to resolve the duplicative dispute are the same, or substantially the same. Kohn, 787 F.3d at 1240 (“the first-to-file rule requires only substantial similarity of parties.”). Here, the parties necessary to resolving Craft Brew’s claims are (1) Craft Brew, (2) 1 As addressed in Section II.b., Craft Brew’s complaint fails to state claims for violations of the Unlawful Trade Practices Act. Craft Brew’s First Claim for Relief alleges violations of Or. Rev. Stat. §§ 646.607(1) and 646.608(1)(u). As a matter of law, there is no private right of action for violations of Section 646.607. See Horton v. Nelson, 288 P.3d 967, 972 (Or. Ct. App. 2012); see also Gosha v. Bank of N.Y. Mellon Corp., No. 3:16-CV-00073-BR, 2016 WL 7238927, at *7 (D. Or. Dec. 13, 2016) (granting motion to dismiss claim asserting a violation of Section 646.607. Additionally, the complaint fails to establish a justiciable cause of action under Section 646.608(u)(1). See Horton, 288 P.3d at 972 (“For a person's conduct to constitute an unfair trade practice, there must be an administrative rule prohibiting that specific conduct.”); see also, i.e., Or. Admin. R. 137-020-0010, et seq. Case 3:17-cv-00215-YY Document 9 Filed 03/21/17 Page 7 of 14 Page 8 - DEFENDANT’S MOTION TO DISMISS OR STAY (Clients\6422\6422-1\Litigation\Motion to Dismiss or Stay.docx 3/21/2017) ANDERSON and YAMADA, P.C. Attorneys at Law 9755 SW Barnes Rd., Suite 675 Portland, Oregon 97225 (503) 227-4586 Baxter Bailey, (3) Craft Brew’s customers, (4) Network, and (5) Bay View. Those are exactly the same parties needed to resolve the Bankruptcy Motion. While Craft Brew has not yet been made a party to the Bankruptcy Motion, Craft Brew’s interests have been represented by Bay View’s pleadings and the exhibits submitted with the Bankruptcy Motion demonstrate coordination if not collaboration between Bay View and Craft Brew in commencing the duplicative litigation. Craft Brew is a party-in-interest to the Bankruptcy Motion, can easily join in the Bankruptcy Motion, and is likely to be brought into the adversary proceeding which will be necessary to determine the respective rights to the collected freight charges. Despite relying upon Network’s contract with non-parties, Network cannot be joined in this action by virtue of 11 U.S.C. § 362. Therefore, the parties are substantially similar and this Court should defer to the Bankruptcy Court. In addition to the general principles of federal comity which weigh in favor of dismissing this action in deference to the pending Network bankruptcy litigation, general equitable notions also support deference to the Bankruptcy Court in this instance. “In deciding whether to dismiss duplicative litigation, ‘the determining factors should be equitable in nature, giving regard to wise judicial administration.’” Ritchie Capital Mgmt., L.L.C. v. Jeffries, 849 F. Supp. 2d 881, 890 (D. Minn. 2012) (quoting Brewer v. Swinson, 837 F.2d 802, 804 (8th Cir. 1988)). In Ritchie, the district court gave deference to a bankruptcy adversary proceeding over a RICO action where the underlying issue central to both actions was the determination of security interests in certain personal property of separate entity. See Id. at 888-893. The court relied upon the doctrine of federal comity in deferring to the bankruptcy court, but looked to general equitable principles in determining that the RICO action should be dismissed, including: “conservation of judicial Case 3:17-cv-00215-YY Document 9 Filed 03/21/17 Page 8 of 14 Page 9 - DEFENDANT’S MOTION TO DISMISS OR STAY (Clients\6422\6422-1\Litigation\Motion to Dismiss or Stay.docx 3/21/2017) ANDERSON and YAMADA, P.C. Attorneys at Law 9755 SW Barnes Rd., Suite 675 Portland, Oregon 97225 (503) 227-4586 resources; the comprehensive disposition of litigation; the relative progress of the two actions; whether a suit is filed for a vexatious, reactive or tactical purpose; and whether the forum in which the first case was filed adequately protects the rights of the litigants in the second case.” Id. at 891. Just as in Ritchie, the equitable considerations support dismissal of Craft Brew’s action. Abstaining from the duplication action filed by Craft Brew until after the Bankruptcy Court has resolved the competing ownership interests will conserve judicial resources because two federal courts will not be simultaneously examining the same facts, conducting the same or similar discovery, and engaging in the same motion practices. The Bankruptcy Court will give both Baxter Bailey and Craft Brew a forum in which their respective rights and grievances can be addressed without the need for piecemeal litigation. The Network bankruptcy has progressed further than this action and the Court has already entered orders directly relating to issues pertinent to Craft Brew’s causes of action in this case. Finally, the communications between Bay View’s counsel and Craft Brew’s counsel leading up to the respective filings of the Bankruptcy Motion and this action, and Craft Brew’s attorney’s willingness to become a witness on behalf of Bay View, indicate that there was consideration of some tactical advantage in splitting this action into two separate proceedings against Baxter Bailey on opposite ends of the country at the same time. Therefore, equitable principle support the dismissal of this action. In conclusion, “[t]he purpose of the comity principle is of paramount importance. The doctrine is designed to avoid placing an unnecessary burden on the federal judiciary, and to avoid the embarrassment of conflicting judgments.” Church of Scientology of California v. U.S. Dep't of Army, 611 F.2d 738, 750 (9th Cir. 1979) overruled by Animal Legal Def. Fund v. U.S. Case 3:17-cv-00215-YY Document 9 Filed 03/21/17 Page 9 of 14 Page 10 - DEFENDANT’S MOTION TO DISMISS OR STAY (Clients\6422\6422-1\Litigation\Motion to Dismiss or Stay.docx 3/21/2017) ANDERSON and YAMADA, P.C. Attorneys at Law 9755 SW Barnes Rd., Suite 675 Portland, Oregon 97225 (503) 227-4586 Food & Drug Admin., 836 F.3d 987 (9th Cir. 2016) (overruled on other grounds). The Court should abstain from exercising jurisdiction over this case to avoid the burdens and confusion which may ensue from adjudicating the same dispute as is currently before the Bankruptcy Court. Craft Brew’s interests are protected, if not championed, by the Bankruptcy Motion and deference should be given to the Bankruptcy Court to determine the respective rights of the parties to the freight charges owed for the shipments of Craft Brew’s freight. b. Motion to Dismiss for Failure to State a Claim, in the Alternative Craft Brew’s complaint fails to allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The Federal Rules of Civil Procedure require that a pleading stating a claim for relief must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the sufficiency of a pleading and authorizes the dismissal of a claim where the pleading fails to set forth the grounds for which relief may be granted. “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true to ‘state a claim to relief that is plausible on its fact.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). Under the plausibility standard, a claim must contain “more than labels and conclusions” or “formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. Craft Brew’s First Claim for Relief relies solely upon conclusory allegations and does not state a justiciable claim for relief under Oregon law. Case 3:17-cv-00215-YY Document 9 Filed 03/21/17 Page 10 of 14 Page 11 - DEFENDANT’S MOTION TO DISMISS OR STAY (Clients\6422\6422-1\Litigation\Motion to Dismiss or Stay.docx 3/21/2017) ANDERSON and YAMADA, P.C. Attorneys at Law 9755 SW Barnes Rd., Suite 675 Portland, Oregon 97225 (503) 227-4586 Craft Brew’s allegations that Baxter Bailey violated the Oregon’s Unlawful Trade Practices Act (“UTPA”) do not establish justiciable claims against Baxter Bailey. First, private parties like Craft Brew lack standing to bring actions for alleged violations of Or. Rev. Stat. § 646.607. See Horton, 288 P.3d at 972; see also Gosha v. Bank of N.Y. Mellon Corp., No. 3:16- CV-00073-BR, 2016 WL 7238927, at *7 (D. Or. Dec. 13, 2016). The UPTA expressly provides that only the State of Oregon is entitled to bring civil actions for violations of Section 646.607. See Horton, 288 P.3d at 972; compare Or. Rev. Stat. § 646.632(1) with Or. Rev. Stat. § 646.638(1). While Section 646.638 authorizes a private cause of action for a violation of Section 646.608, Oregon law is equally clear that “[a]n action or suit may not be brought under subsection (1)(u) of this section unless the Attorney General has first established a rule in accordance with the provisions of ORS chapter 183 declaring the conduct to be unfair or deceptive in trade or commerce.” Or. Rev. Stat. § 646.608(4). Here, the complaint has not specifically alleged a violation of any rules established by the Oregon Attorney General nor do the factual averments set forth in the complaint manifest a violation of the rules promulgated in Or. Admin. R. 137-020-0010, et seq. Therefore, Craft Brew’s complaint fails to state a claim for relief under Sections 646.607 or 646.608(u)(1) and Craft Brew’s First Claim for Relief must be dismissed. III. CONCLUSION This action is duplicative and parallel to the pending litigation before the Bankruptcy Court and the Court should exercise its discretion and abstain from exercising jurisdiction over this action. Thus, this action should be dismissed or at the least stayed pending resolution of the litigation in the Network bankruptcy. To the extent that the Court deems it just to exercise Case 3:17-cv-00215-YY Document 9 Filed 03/21/17 Page 11 of 14 Page 12 - DEFENDANT’S MOTION TO DISMISS OR STAY (Clients\6422\6422-1\Litigation\Motion to Dismiss or Stay.docx 3/21/2017) ANDERSON and YAMADA, P.C. Attorneys at Law 9755 SW Barnes Rd., Suite 675 Portland, Oregon 97225 (503) 227-4586 jurisdiction, Craft Brew’s complaint is deficient and fails to set forth a claim for relief under the UTPA. Therefore, even if the Court retains jurisdiction, the First Claim for Relief alleged by Craft Brew must be dismissed. DATED: March 21, 2017 /s/ Kevin M. Anderson Kevin M. Anderson, OSB No. 090802 kevin@aylawfirm.com ANDERSON AND YAMADA, P.C. 9755 SW Barnes Road, Suite 675 Portland, Oregon 97225 Telephone: 503-227-4586 Facsimile: 503-227-7044 Jeffrey D. Cohen (of counsel) KEENAN COHEN & MERRICK P.C. One Pitcairn Place, Suite 2400 165 Township Line Road Jenkintown, PA 19046 Phone: (215) 609-1110 Fax: (215) 609-1117 jcohen@freightlaw.net Attorneys for Defendant Baxter Bailey & Associates, Inc. Case 3:17-cv-00215-YY Document 9 Filed 03/21/17 Page 12 of 14 Page 13 - DEFENDANT’S MOTION TO DISMISS OR STAY (Clients\6422\6422-1\Litigation\Motion to Dismiss or Stay.docx 3/21/2017) ANDERSON and YAMADA, P.C. Attorneys at Law 9755 SW Barnes Rd., Suite 675 Portland, Oregon 97225 (503) 227-4586 CERTIFICATE OF COMPLIANCE WITH LR 7-2(b) I certify that this Defendant’s Motion to Dismiss or Stay complies with the applicable word-count limitation under LR 7-2(b), 26-3(b), 54-1(c), or 54-3(e) because it contains 3,842 words, including headings, footnotes, and quotations, but excluding the caption, table of contents, table of authorities, signature block, and any certificates of counsel. DATED: March 21, 2017 /s/ Kevin M. Anderson Kevin M. Anderson, OSB No. 090802 kevin@aylawfirm.com Case 3:17-cv-00215-YY Document 9 Filed 03/21/17 Page 13 of 14 Page 14 - DEFENDANT’S MOTION TO DISMISS OR STAY (Clients\6422\6422-1\Litigation\Motion to Dismiss or Stay.docx 3/21/2017) ANDERSON and YAMADA, P.C. Attorneys at Law 9755 SW Barnes Rd., Suite 675 Portland, Oregon 97225 (503) 227-4586 CERTIFICATE OF SERVICE I hereby certify that on March 21, 2017, a true and correct copy of the above Defendant’s Motion to Dismiss or Stay was electronically filed with the Clerk of the United States District Court and served via the Court CM/ECF system. /s/ Kevin M. Anderson Kevin M. Anderson, OSB No. 090802 kevin@aylawfirm.com Case 3:17-cv-00215-YY Document 9 Filed 03/21/17 Page 14 of 14