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DEFENDANT BARRY FORMAN’S NOTICE OF MOTION AND MOTION TO DISMISS COMPLAINT;

MEMORANDUM OF POINTS AND AUTHORITIES 

3:17-cv-00796 JSC 

CHARLES R. JAEGER (SBN 171039) 

WILLIAM S. FARMER (SBN 46694) 

FARMER BROWNSTEIN JAEGER LLP

235 Montgomery Street, Suite 835 

San Francisco, CA 94104 

Telephone: (415) 962-2879 

Email: cjaeger@fbj-law.com 

 wfarmer@fbj-law.com 

ATTORNEYS FOR DEFENDANT

BARRY FORMAN 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

SAN FRANCISCO DIVISION 

CALEB AVERY t’BEAR,

 Plaintiff, 

v. 

 

BARRY FORMAN, and DOES 1-50, inclusive, 

 

Defendants. 

Case No. 3:17-cv-00796-jsc

DEFENDANT BARRY FORMAN’S 

NOTICE OF MOTION AND MOTION TO 

DISMISS COMPLAINT; MEMORANDUM 

OF POINTS AND AUTHORITIES 

 

Fed. R. Civ. P. 12(b)(6) 

Date: April 13, 2017 

Time: 9:00 a.m. 

Place: Courtroom F, 15th Floor 

Hon. Jacqueline Scott Corley

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DEFENDANT BARRY FORMAN’S NOTICE OF MOTION AND MOTION TO DISMISS COMPLAINT;

MEMORANDUM OF POINTS AND AUTHORITIES 

3:17-cv-00796 JSC 

NOTICE OF MOTION AND MOTION TO DISMISS

PLEASE TAKE NOTICE that on April 13, 2017 at 9:00 a.m., or as soon thereafter as the 

matter may be heard before the Honorable Magistrate Judge Jacqueline Scott Corley, in the U.S. 

District Court for the Northern District of California, Courtroom F, 15th Floor of the United States 

District Courthouse at 450 Golden Gate Avenue, San Francisco, California, Defendant Barry Forman 

will and hereby does move to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 

12(b)(6) for failure to state a claim upon which relief can be granted. This motion is based on the 

grounds that the alleged agreement upon which Plaintiff bases his claims expressly provides that any 

dispute under that agreement shall be resolved through mediation and binding arbitration. 

The motion will be and is based on this Notice of Motion and Motion to Dismiss, the 

accompanying Memorandum of Points and Authorities, the pleadings and papers filed herein, and the 

argument of counsel at the time of the hearing. 

DATED: February 24, 2017 FARMER BROWNSTEIN JAEGER LLP 

By: /s/ Charles R. Jaeger 

Charles R. Jaeger 

Attorneys for Defendant 

Barry Forman 

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DEFENDANT BARRY FORMAN’S NOTICE OF MOTION AND MOTION TO DISMISS COMPLAINT;

MEMORANDUM OF POINTS AND AUTHORITIES 

3:17-cv-00796 JSC 

MEMORANDUM OF POINTS AND AUTHORTIES 

Defendant Barry Forman (“Forman”) submits this memorandum in support of his motion to 

dismiss the Complaint. 

I. INTRODUCTION 

In the Complaint, plaintiff Caleb Avery t’Bear asserts fiduciary duty and equitable claims 

based upon an alleged “partnership/joint venture” known as the FairWay Group. Plaintiff alleges that 

he and Mr. Forman negotiated and drafted a document that plaintiff refers to as a “Collaboration 

Agreement” and that the parties operated and performed under that agreement. Assuming arguendo

– as we must for purposes of this motion – that the allegations of the Complaint are true, then this 

case should be dismissed. The document that plaintiff refers to as the Collaboration Agreement 

expressly provides that any dispute under the agreement shall be resolved through mediation and 

binding arbitration. Plaintiff cannot selectively seek to enforce some terms of the document while, at 

the same time, ignoring others, e.g., the dispute resolution provisions. Accordingly, based on his own 

allegations, this dispute should be resolved through mediation and binding arbitration, and the 

Complaint should be dismissed. 

II. THE COURT SHOULD DISMISS THE COMPLAINT BECAUSE THE 

ALLEGED COLLABORATION AGREEMENT REQUIRES MEDIATION 

AND BINDING ARBITRATION OF PLAINTIFF’S CLAIMS 

Under Rule 12(b)(6), a complaint may be dismissed if it appears beyond doubt that the 

plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Navarro 

v. Block, 250 F.3d 729, 732 (9th Cir. 2001); Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 338 (9th Cir. 

1996). In deciding such a motion, all material allegations of the complaint are accepted as true, as 

well as all reasonable inferences to be drawn from them. Id. Accepting plaintiff’s allegations here as 

true solely for purposes of this motion, it is clear that plaintiff cannot pursue his claims in this or any 

court, and instead must seek to resolve them through mediation and, if necessary, binding arbitration. 

 Plaintiff asserts that he and defendant Forman did business “under the umbrella of a 

partnership/joint venture known as The FairWay Group.” Complaint at 2, ¶ 6. Plaintiff alleges that 

“as part of negotiating and drafting a ‘Collaboration Agreement,’ the Parties formalized their 

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DEFENDANT BARRY FORMAN’S NOTICE OF MOTION AND MOTION TO DISMISS COMPLAINT;

MEMORANDUM OF POINTS AND AUTHORITIES 

3:17-cv-00796 JSC 

arrangement referred to as the FairWay Group.” Id. at 3, ¶ 8. The Complaint further alleges that 

“[t]he Parties operated the venture and each party performed under the Collaboration Agreement for a 

number of years in conformity with the terms of that agreement.” Id. The Complaint then lists 

several obligations that defendant had under the alleged Collaboration Agreement. Id. at 3-4, ¶¶ 8-9, 

and asserts causes of action for breach of fiduciary duty, declaratory relief and an accounting. Id. at 

6-8. 

The Complaint does not attach the document that it refers to as the Collaboration Agreement. 

We therefore requested a copy of the alleged agreement from plaintiff’s counsel and were provided 

with an unsigned document titled “Preliminary Collaboration Agreement.” See Declaration of 

Charles R. Jaeger (“Jaeger Decl.”), ¶ 2-4, Ex. C. We have included this document with our papers as 

part of this motion (and hereinafter refer to it as it is named, the Preliminary Collaboration 

Agreement). See Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994) (holding that when complaint 

does not physically attach document on which it is based, defendant may attach document to motion 

to dismiss to show that it does not support plaintiff’s claim) (overruled on other grounds by Galbraith 

v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002); Postier v. Louisiana-Pacific Corp., 2009 

U.S. Dist. LEXIS 95060, at *17 (N.D. Cal. 2009). 

The Preliminary Collaboration Agreement describes itself as preliminary in nature and 

provides that the parties would subsequently prepare a “complete agreement:” 

“Forman and t’Bear agree and acknowledge the preliminary nature of this Agreement and 

agree that, as soon as practicable, they will engage legal counsel experienced in the 

preparation and counseling regarding business partnership agreements to prepare a complete 

agreement covering, among other things, the terms and conditions set forth herein.” 

Jaeger Decl., Ex. 1 at ¶ 2. The Preliminary Collaboration Agreement further provides that the parties

would prepare the subsequent complete agreement within 6 months of the effective date of the 

Preliminary Collaboration Agreement. Id. at ¶ 7. (The Complaint does not allege that the parties 

ever prepared or executed a complete agreement.) 

The Preliminary Collaboration Agreement provides a two-step process for resolving any 

issues that could not be resolved “through reasonable discussion” – through mediation in the first 

instance and, in the event mediation fails, binding arbitration: 

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DEFENDANT BARRY FORMAN’S NOTICE OF MOTION AND MOTION TO DISMISS COMPLAINT;

MEMORANDUM OF POINTS AND AUTHORITIES 

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“Prior to such more complete agreement, in the event there is any issue regarding the 

interpretation of this agreement that Forman and t'Bear cannot resolve through reasonable 

discussion, they agree to submit the issue to 3 attorneys, one each appointed by Forman and 

t'Bear and the third selected by their respective attorneys. The 3 attorneys shall meet 

informally to resolve the interpretation at issue, but if they cannot do so on an informal basis, 

they shall submit the matter on behalf of Forman and t'Bear to JAMS in San Francisco, 

California for resolution. Forman and t'Bear agree to abide by the resolution by JAMS.” 

Id. Finally, the Preliminary Collaboration Agreement added that “[a]ny dispute under this Agreement 

is intended to be resolved through JAMS in San Francisco as described hereinabove.” Id. ¶ 8. 

Plaintiff cannot seek to enforce the provisions of the Preliminary Collaboration Agreement 

while simultaneously choosing to ignore other provisions of that same agreement, such as the 

mediation and arbitration clauses. “When a plaintiff brings a claim which relies on contract terms 

against a defendant, the plaintiff can be equitably estopped from repudiating the arbitration clause 

contained in that agreement.” City of Riverside v. Mitsubishi Heavy Indus., 2014 U.S. Dist. LEXIS 

33836 (S.D. Cal., March 14, 2014) (staying proceedings pending arbitration) (quoting JSM Tuscany, 

LLC v. Super. Ct., 193 Cal. App. 4th 1222, 1240-41, 123 Cal. Rptr. 3d 429 (Cal. App. 2011). 

 Accordingly, because plaintiff here brings claims relying on the Preliminary Collaboration 

Agreement, plaintiff should have raised his claims first in mediation, and thereafter, if necessary, 

through binding arbitration before JAMS in San Francisco. In any event, plaintiff’s claims should not

have been brought in this or any other court, and they should be dismissed. 

Forman and plaintiff never finalized or executed the Preliminary Collaboration Agreement, 

and although they worked together for several years, Forman and plaintiff never formed a partnership 

and never did business as partners. Should the Court grant this motion, however, Forman will 

voluntarily agree to submit plaintiff’s claims to the mediation and binding arbitration procedures 

described in the Preliminary Collaboration Agreement document in order to resolve those claims 

efficiently. During any such mediation and, if necessary, binding arbitration, Forman reserves all of

his rights, among other things, to deny that plaintiff’s claims have any merit, and to deny that the 

Preliminary Collaboration Agreement was finalized or executed, or otherwise is a binding agreement. 

/// 

/// 

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DEFENDANT BARRY FORMAN’S NOTICE OF MOTION AND MOTION TO DISMISS COMPLAINT;

MEMORANDUM OF POINTS AND AUTHORITIES 

3:17-cv-00796 JSC 

For the reasons stated, Defendant Barry Forman respectfully petitions the court to dismiss this 

action, and to award defendant Forman his reasonable costs incurred in removing this case and 

bringing this motion. 

DATED: February 24, 2017 FARMER BROWNSTEIN JAEGER LLP 

By: /s/ Charles R. Jaeger 

Charles R. Jaeger 

Attorneys for Defendant 

Barry Forman 

 

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DEFENDANT BARRY FORMAN’S NOTICE OF MOTION AND MOTION TO DISMISS COMPLAINT;

MEMORANDUM OF POINTS AND AUTHORITIES 

3:17-cv-00796 JSC 

CERTIFICATE OF SERVICE 

 

I hereby certify that on February 24, 2017, I caused the foregoing documents, including the 

Notice of Motion and Motion to Dismiss Complaint; Memorandum of Points and Authorities; 

Declaration of Charles R. Jaeger in support thereof and a [Proposed] Order, to be electronically filed

with the Clerk of the U.S. District Court (California Northern District – San Francisco/Oakland 

Division) using the ECF system, which automatically sends notification of such filing to ECFregistered counsel in this matter. Additionally, I have confirmed that all counsel in this action have 

registered with ECF regarding this case. 

By: /s/ Charles R. Jaeger 

Case 3:17-cv-00796-JSC Document 5 Filed 02/24/17 Page 7 of 7