over that span of time we were involved in three lawsuits two of those lawsuits involved information technology managers who attempted to use their trusted positions to extort a raise and in both cases use their control over our servers in data to shut down the company for days at a time  arbitration mediation and arbitration that issue was raised in this case in the court did not compel we raise the issue during the answer we raised the issue during the motion to dismiss both require the court has limited jurisdiction the question is whether or not a contract exists and whether or not the claims in controversy are subject to that contract there is no dispute that a contract exist the question as to whether or not a post terminations retaliation claim exist as a controversy subject to the operation agreement was also well settled mr as well as you brought post employment retaliation claims in an i want to reference specifically that the contract agreement section six point five the agreement provides that organ shall govern questions relative to interpretation and construction of the agreement and it's in force mint regardless of venue or jurisdiction case i cited in the brief in the one that i think represents the best instruction is livingston vs metropolitan clinic in that case the court concluded that the question or issue a waiver involves a condition precedent and is to be decided by the arbitrator the courts will decide only whether a contract to arbitrate exists and whether a controversy is subject to arbitration the court in livingston decided the question of federal arbitration acts specifically decides questions a waiver in order to accomplish that waiver must the party must that is resisting arbitration must show prejudice  before waiver will be found the same analysis is true in livingston and livingston specifically references fisher a g becker a th circuit case prejudice for federal purposes then is questioned on what the plaintiff allege the plaintiff in this case allege that that he was prejudice based on the element of time and interim cost the th circuit specifically precludes finds that a difficult points and finds it unavailing when the plaintiff also knew of the obligation to arbitrate which he clearly did the plaintiff in fact implicated the contract in this claim livingston also has precisely the same analysis for purposes of prejudice livingstone and the metropolitan clinic i think is also instructive in that it deals with non signatories and it dealt with an administrative procedure livingston i went through with metropolitan clinic a boli procedure and it took a period of time and even through that process in gauged in discovery at the end of that bully issued a right to sue order letter and then stoppel analysis basically the contract and allegations are so intertwined with the parties that in one signature in fact could implicate the contract and pursue arbitration also i'd like to bring to the attention as more unique in that after had cough proceeded to to go to file his case that portland ahead of us adventists actually pursued dismissal or in the our alternative a motion to compel because had cough had failed to meet the conditions president outlined procedures internal procedures for purposes of proceeding to litigation and prevailed in dismissing the case against the point  difficulty with the structure of the complaint is that it is attempts to attribute to n d t n out of business employer life as the principal retaliator because i'm the former c e of that company during that period of time my publication of the blog which is the point of retaliation for purposes of the plaintiff's allegation arose after n t t was out of business no mclaughlin versus wilson makes it clear that i could be sued under one f but in this case i was the eight in a better under when she so during the course of the case the employer and only employer was identified as n t t and that company was out of business so in the absence of being able to to give credibility to the absurd and out of business employer was attributed with my activity so that that could also be treated back to me as needed and a better i was essentially the same for both parties mclaughlin actually references a point that the search cannot happen where the one half party and the one g party are the same party progress that particular question was raised there was a factual challenge as to whether or not now the defamation that occurred that the plaintiff had been truthful i raised alternative factual challenges and ultimately received subpoena evidence from the u s marshal service showing that their earlier statement was in fact a declaration by counsel was in fact a perjurious according land that the anti slapp should not have been entertained until discovery was completed and the court had a chance to evaluate it against a body of evidence in this case no as it turned out snow discovery was actually permitted it was a structural difficulty with thirty day period that resulted in neither party being able to engage in discovering the court did not grant any additional extension there are numerous other issues that are bridge in the breeze brief that would have had the effect of tainting the jury i think identified seventeen counts of misconduct by were pretty familiar with your ok would first i'd like to address the non signatory issue obviously the arbitration agreement as a matter of contract this court looks to oregon law as a matter of contract and looks to the language of the arbitration agreement to determine whether the agreement disputes between the parties here are governed by this contract this the language of this arbitration agreement does not govern  mr wrote named as a party it fails to include n d t's owners directors employees or agents of the company is expressly defined as an d t only the  bates case out of or again that the organ court of appeals that came out recently is determinate if in this case in that case the court looked to the scope of the agreement and stated that non signatory child of a party was not bound to the arbitration agreement that referred only to the parties and did not at any time identify the non signatory child as a party to the agreement and that was despite very broad language in the arbitration agreement including that it would cover any dispute or claim that arises out of or relates to this agreement it also did not provide any notice to the signing party to the arbitration agreement that the non signatory child would be bound to the arbitration agreement this circuit's mindi case in two thousand and nine applying california law which is not just different contract law than oregon reached the same result and bates it looked to the scope of the arbitration agreement which was between only any way relating to all disputes out of the contract similar to language in this arbitration agreement here and despite that broad language it held that since the dispute was not between the parties here the arbitration agreement to not apply and so i would submit that because this dispute is between mr rowe and plaintiff and not between  arbitration agreement simply does not apply and i'd like to move on to waiver although mr rove did not bring that up he does point to his answer which did not raise arbitration as a defen quickly asserted an amended answer searching seven counter claims seeking damages of eleven million dollars against plaintiff moved to join plaintiff's attorney and fiance as counter claim strongly supports a determination that a party intentionally waives its right to compel arbitration so mr roe here although initially filing a motion to compel arbitration  change course and aggressively litigated in effect in the federal forum here and that would constitute arbitration i also want to point out that this court should view mr rhodes  decision to pursue the federal forum in light of mr rhodes statements and his blog criticizing the arbitration system his choice to pursue the federal forum and waive arbitration is not surprising considering that he was very critical of the arbitration system his statements include you don't get sophisticated judges when you arbitrate arbitration should be avoided at all costs the process is just too dangerous and you are better off in court his decision to take chances in the federal forum and see what would happen in the federal forum is not then i just want to address prejudice really quickly because mr roach states that you know relies on the fisher case but here decisions were already made on the merits regarding the  claims that mr rhodes raised and that would have to be related gaited in arbitration and the martin case in particular states that the fact that issues would have to be related gate in arbitration is dispositive of  raise across appeal regarding the district court's decision to reduce the jury's verdict from one million dollars to five hundred thousand dollars under oregon's non economic cap on construe that phrase as apply only to bodily injury however a plain reading of that phrase would modify the entire phrase damages arising out of bodily injury and not just the particularly all action seeking emotional injury or distress would require an absurd reading of the statute it would require application of or it would it would require constraining emotional injury or distress death or property damages to be equivalent to bodily injury there are many cases as both myself and am it just pointed out that construe property damage and death and emotional distress as being separate from bodily injury and particularly common sense just dictates that property damage for instance is not the same as bodily injury so addressed to well as i cite in my brief there are several cases where the court of appeals and supreme court assume without citing that the statute does not apply  if the plaintiff is not seeking damages arising out of bodily injury but it does not seem that anyone has raised this issue specifically such that the court has addressed this issue that phrase including necessary if there is a comma then that phrase modifies the entire antecedent not just the specific word before that comma so oregon supreme court follows this doctrine and therefore that is indicative that the oregon supreme court would construe this this phrase including emotional injury or distress death or property damages as modifying the entire phrase seeking damages arising out of bodily injury and not just the word bodily injury also the previous cases that are cited as to also per se but really what what the purpose of this cap on damages was was the legislature was concerned with insurance premiums and costs related to specific type of actions those specific type of actions were medical malpractise negligence personal injury actions the legislature was not did not consider or was not concerned with employment actions over the types of cases and the insurance costs related to these types of cases so if you're talking about what the legislature was trying to accomplish i do not think it was trying to accomplish capping so that's a good case to look out and it really talks about how you can't you can't take from this general tort reform objectives of the one thousand nine hundred and eighty seven senate bill that the legislature would reform objectives and really you can't take from this silence in the legislative history you know the lack of legislative history can't take conclusions one way or the damages arising out of bodily injury one way or the other and there is nothing in this legislative history that contradicts our proposed interpretation of unless the court has any further questions i would just mention that we do believe that the oregon supreme court is the proper venue to construe the statute and we would request certification but unless the  constitutional aspect away from the jury thank  that that was a proper forum to be sued and as a non signatory i did address weyburn prejudice and i think i read dress it right now by suggesting that both the party resisting arbitration must show also want to clarify that while i removed my initial motion to dismiss my answer referenced the mandatory arbitration and my amended motion to dismiss also do the same thing all within seven months of the initial damages claims there is a general acceptance under state law that this is of course constitutional it's been tried to horton case made it very clear the bodily injury definition to include emotional distress is based on looking at the legislative intent that has also been adjudicated in favor of a reduction of the imposition of the cap into the pierce case  that was a case of exception and so did not apply at the range case specifically examined whether or not the cap what apply and determined that it was constitutional but it was also too great of a reduction so that the court decided to not apply it but it did not discount the fact that that the cap was valid constitutionally  been submitted on the briefs and record so that concludes our session for today thank you all very much