IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

KIRK J. NYBERG, 

Plaintiff, 

v. 

PORTFOLIO RECOVERY ASSOCIATES, 

LLC, 

Defendant. 

PAP AK, Magistrate Judge: 

3:15-cv-01175-PK 

OPINION AND ORDER 

Plaintiff Kirk J Nyberg brings this action against Defendant Portfolio Recovery 

Associates, LLC ("PRA"), asse1iing claims under the Fair Debt Collection Practices Act, 15 

U.S.C. § 1692, et seq. (the "FDCPA"). Now before the court are PRA's Request for Judicial 

Notice (#15) and PRA's Motion to Stay (#13). For reasons provided below, PRA's Request for 

Judicial Notice is granted and PRA's Motion to Stay is denied. 

BACKGROUND 

I. Nyberg I 

PRA filed suit against Nyberg in the Circuit Court of the State of Oregon, County of 

Washington on June 25, 2014, seeking to collect amounts allegedly due on Nyberg's Capital One 

Bank (USA), N.A. ("Capital One") credit card. That lawsuit will hereinafter be refe!1"ed to as 

Nyberg I. PRA alleged in its complaint in Nyberg I that Nyberg failed to dispute monthly bills 

he received from Capital One, thereby establishing an account stated 1 in the amount of $834.25, 

1 "An account stated is an agreement between parties who have had previous transactions of a 

monetary character that all items of the account representing such transactions, and the balance 

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which Nyberg failed to pay. On November 25, 2014, Nyberg I was dismissed without prejudice 

for failure to prosecute. As discussed in greater detail below, Nyberg's FDCPA claim before this 

court is based on PRA's filing of Nyberg I. 

II. Nyberg II 

After Nyberg I was dismissed, PRA filed a second, identical suit against Nyberg on May 

7, 2015, in the Circuit Comt of the State of Oregon, County of Washington. That lawsuit will 

hereinafter be referred to as Nyberg II. The parties agree that PRA's complaints in Nyberg I and 

Nyberg II contain the same allegations. Nyberg II is cun·ently pending. PRA now moves this 

comt to stay Nyberg's FDCP A action pending the resolution of Nyberg II. 

III. The Present Case 

Nyberg filed his Complaint (#1) in the present case on June 25, 2015. Nyberg contends 

that PRA violated the FDCP A by filing Nyberg I. Nyberg's FDCPA claim consists of the 

following three counts: (1) PRA falsely alleged in its complaint in Nyberg I that it had an 

account stated, (2) PRA filed Nyberg I in an effort to sidestep the statute of limitations and "other 

defenses" that arose out of the cardholder agreement between Nyberg and Capital One, and (3) 

PRA's claims in Nyberg I were barred by Virginia's statute of limitations, which was made 

applicable by a choice of law clause in the cardholder agreement. See Comp!. 4. 

PRA filed its Answer (#3) on August 28, 2015, alleging as an affomative defense that it 

sought to recover the debt from Nyberg on an account stated theory as the result of a "bona fide 

error." PRA then filed the present Motion to Stay (#13) and Request for Judicial Notice (#15) on 

October 16, 2015. Nyberg filed his Response (#17) on November 3, 2015. PRA filed its Reply 

shuck, are correct, together with a promise, express or implied, for the payment of such 

balance." State ex rel. Kaser v. Leonard, 102 P.2d 197, 211-12 (Or. 1940) (citation omitted) 

(internal quotation marks omitted). 

OPINION AND ORDER-PAGE 2 

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(#18) on November 17, 2015. The court heard oral arguments on PRA's Motion to Stay and 

PRA's Request for Judicial Notice on December 2, 2015. This matter is fully submitted and 

prepared for decision. 

LEGAL STANDARD 

In actions for damages, federal courts have a "virtually unflagging obligation" to exercise 

the jurisdiction vested in them by Congress. Colorado River Water Conservation Dist. v. United 

States, 424 U.S. 800, 817 (1976). "Only in rare cases will 'the presence of a concunent state 

proceeding' pe1mit [a] district court to dismiss [or stay] a concmTent federal suit 'for reasons of 

wise judicial administration."' R.R. St. & Co. Inc. v. Transp. Ins. Co., 656 F.3d 966, 977-78 (9th 

Cir. 2011) (quoting Colorado River, 424 U.S. at 818). Colorado River was the seminal Supreme 

Court case holding that district courts may decline to exercise jurisdiction in deference to 

concunent state court proceedings. See 424 U.S. 800. However, the Court made clear that 

Colorado River stays are reserved for only "exceptional" cases where "the clearest of 

justifications" support granting a stay. Id. at 818-19; accord R.R. St., 656 F.3d at 978 (quoting 

Colorado River). 

Courts within the Ninth Circuit consider the following eight factors when analyzing 

whether to grant a stay pursuant to Colorado River: 

(1) which comt first assumed jurisdiction over any property at stake; (2) the 

inconvenience of the federal forum; (3) the desire to avoid piecemeal litigation; 

( 4) the order in which the forums obtained jurisdiction; (5) whether federal law or 

state law provides the rnle of decision on the merits; ( 6) whether the state court 

proceedings can adequately protect the rights of the federal litigants; (7) the desire 

to avoid forum shopping; and (8) whether the state court proceedings will resolve 

all issues before the federal court. 

R.R. St., 656 F.3d at 978-79 (footnote omitted) (citing Holder v. Holder, 305 F.3d 854, 870 (9th 

Cir. 2002)). 

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The comt considers only the factors that are relevant to the case before it. See, e.g., id at 

979. "Any doubt as to whether a factor exists should be resolved against a stay, not in favor of 

one." Travelers Indeni. Co. v. lvfadonna, 914 F.2d 1364, 1369 (9th Cir. 1990). The cou1tmust 

then balances the relevant factors, "with the balance heavily weighted in favor of the exercise of 

jurisdiction." 1Woses H Cone lvfem'l Hosp. v. }.fercwy Const. Corp., 460 U.S. 1, 16 (1983). 

DISCUSSION 

I. Judicial Notice 

PRA's Request for Judicial Notice is granted. PRA moves the court under Federal Rule 

of Evidence 201 to take judicial notice of the complaints filed in Nyberg I and Nyberg II. The 

court may take judicial notice of records of "proceedings in other courts, both within and without 

the federal judicial system, if those proceedings have a direct relation to matters at issue." US. 

ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971F.2d244, 248 (9th Cir. 1992); 

accord 1\!fu/lis v. U.S. Bankr. Ct., 828 F.2d 1385, 1388 n.9 (9th Cir. 1987); Latta v. W: Inv. Co., 

173 F.2d 99, 103 (9th Cir. 1949). As explained below, the complaints in Nyberg I and Nyberg II 

are directly related to this case. Therefore PRA's Request for Judicial Notice is granted. 

II. Colorado River Stay 

PRA moves the cou1t to stay the present action until there is a final rnling in Nyberg II, 

contending "the vast majority of the claims" in this case will be resolved in Nyberg JI. See Mot. 

to Stay 4. As stated above, Nyberg alleges in this case that PRA violated the FDCP A by filing a 

complaint in Nyberg I that falsely alleged an account stated and attempted to recover a debt that 

was barred by the statute of limitations and other contract defenses. Because PRA's complaint in 

Nyberg II is identical to its complaint in Nyberg I, PRA argues that Nyberg II will necessarily 

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involve a dete1mination of whether PRA had an account stated and whether Nyberg's debt was 

baned by the statute of limitations. 

In dete1mining whether it is appropriate to stay this action, I must consider the factors 

provided by Colorado River and its progeny (the "Colorado River factors"). See supra. 

Although I conclude that all of the Colorado River factors, on balance, favor declining to stay 

this action, I focus my analysis on the final factor, as it is fatal to PRA's Motion to Stay. 

Nyberg II will not resolve all the issues presented by Nyberg's FDCP A action. Therefore, 

the final Colorado River factor-whether the concunent state court proceedings will resolve all 

issues before the federal court-does not support granting a stay of this case. This factor, which 

is also sometimes called "substantial similarity," is dispositive. See Holder, 305 F.3d at 859; 

Intel Corp. v. Advanced l'vlicro Devices, Inc., 12 F.3d 908, 913 & n.7 (9th Cir. 1993); A/lision v. 

Do/ich, No. 3:14-CV-1005-AC, 2015 WL 3447948, at *3 (D. Or. May 29, 2015). As the 

Supreme Cou1i explained: 

When a district couti decides to dismiss or stay under Colorado River, it 

presumably concludes that the parallel state-court litigation will be an adequate 

vehicle for the complete and prompt resolution of the issues between the parties. 

If there is any substantial doubt as to this, it would be a serious abuse of discretion 

to grant the stay or dismissal at all. Thus, the decision to invoke Colorado River 

necessarily contemplates that the federal cou1i will have nothing fiirther to do in 

resolving any substantive part of the case .... 

lvloses H Cone lvlem'l Hosp., 460 U.S. at 28 (emphasis added) (citations omitted). Thus, under 

the Colorado River doctrine, "the existence of a substantial doubt as to whether the state 

proceedings will resolve the federal action precludes the granting of a stay." Intel, 12 F.3d at 

913; see also Gulfstream Aerospace Corp. v. lvlayacamas Corp., 485 U.S. 271, 277 (1988) 

(holding that a district comi may issue a Colorado River stay only if it has "full confidence" that 

the state proceeding will end the federal proceeding). 

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Case 3:15cv01175PK Document 25 Filed 01/22/16 Page 5 of 8
Intel is illustrative. In that case, Intel filed a copyright infringement suit against 

Advanced Micro Devices ("AMD") in federal court in October of 1991. 12 F.3d at 911. Intel 

alleged that AMD infringed Intel's copyrights by reverse-engineering Intel's 386 microprocessor 

and using the software therein to manufacture AMD's own 386 microprocessor. Id. In February 

of 1992, while Intel's infringement action was still pending before the federal district comi, an 

arbitrator granted ALVID a license to manufacture and distribute Intel's 386 microprocessors as a 

remedy for Intel's bad faith breach of contract. Id. In March of 1992, a California state court 

confirmed the award. Id. at 912. 

AMD then moved the federal district comi to stay Intel's infringement suit pending 

appeal of the California court order confirming the award. Id. The district court granted the 

motion and stayed the proceedings under the Colorado River doctrine. Id. The Ninth Circuit 

reversed, finding that the state court proceedings would not necessarily resolve all of the issues 

presented by Intel's infringement action. Id. The court explained: 

The concmTent state court proceedings will resolve all the issues in this action 

only if the arbitration award is confirmed .... In contrast, if the state comi 

ove1iurns the arbitration award, then the case will return to federal court for the 

adjudication of the underlying copyright claims [because] . . . AMD has fmiher 

defenses to Intel's copyright claim that it intends to litigate. 

Id. at 913 & n.6. Thus, in Intel, there was a possibility that the state-court action would not 

resolve all the issues in the federal action, and that possibility created "substantial doubt 

sufficient to preclude a Colorado River stay." Id. at 913. 

Here, there is an identical possibility that the state-court action will not resolve all the 

issues in this federal action. Again, the primary issue in Nyberg II is whether Nyberg's failure to 

dispute monthly bills he received from Capital One established an account stated that Nyberg is 

obligated to pay. Implicit in that case is also the issue whether Ny berg's debt was baned by the 

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Case 3:15-cv-01175-PK Document 25 Filed 01/22/16 Page 6 of 8
applicable statute oflimitations.2 Those issues are also present in this case, as Nyberg alleges 

that he did not establish an account stated (Count One) and that his debt was batTed by the statute 

of limitations (Count Three). See Comp!. 4. However, as in Intel, a ruling in Nyberg's favor in 

Nyberg II would not necessarily resolve Nyberg's FDCPA claim.3 

If the Nyberg II court determines that there was no account stated and that the debt was 

baned by the statute of limitations, PRA will likely be precluded from arguing otherwise in 

defending Ny berg's FDCPA action before this comi. However, that does not mean that PRA 

would be liable on Nyberg's FDCPA claim as a matter oflaw. To the contraty, this comi would 

still have to adjudicate PRA's defense that it sought to recover the debt on an account stated 

theory as the result of a "bona fide etTor." See Answer 5 (pleading bona fide error as an 

affirmative defense); see also 15 U.S.C. § 1692k( c) ("A debt collector may not be held liable in 

any action brought under [the FDCPA] ifthe debt collector shows by a preponderance of 

evidence that the violation was not intentional and resulted from a bona fide enor .... "). This is 

the exact contingency that precluded a Colorado River stay in Intel, and it therefore precludes a· 

Colorado River stay in this case as well.4 See 12 F.3d at 913 n.6; accord Allision, 2015 WL 

3447948, at *4; see also 1'vloses H Cone ivlem'l Hosp., 460 U.S. at 28 (citations omitted). 

2 Nyberg has not asserted an FDCP A counterclaim in Nyberg II, and because Oregon does not 

have a compulsory counterclaim rule, he is not precluded from asserting an FDCPA claim before 

this com1. See G.B. v. lvl_orey, 215 P.3d 879, 881 (Or. App. 2009). 

3 Under Oregon law, a debtor's failure to object to a statement does not automatically establish an 

account stated as a matter of law. See, e.g., Davis v. Oregon-Canadian Forest Products, Inc., 

730 P .2d 556, 557 (Or. App. 1986). Thus, on the record before the court, it is possible that 

Nyberg will prevail in Nyberg II. 

4 PRA does not attempt to distinguish Intel from the facts of this case. Instead, it relies on 

Stampley v. L VNV Funding, LLC-a case from the United States District Comi for the Northern 

District of Illinois. 583 F. Supp. 2d 960. Stampley is unpersuasive to the extent it varies from 

the Ninth Circuit's holding in Intel. 

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Moreover, as PRA concedes, this comt would still have to adjudicate Count Two of 

Nyberg's FDCPA claim even ifthe Nyberg II comt rnles against Nyberg on the account stated 

and statute of limitations issues. See Mot. to Stay 6 n.5. Count Two alleges that, regardless of 

whether the parties established a valid account stated and whether the debt was barred by the 

statute of limitations, PRA's attempt to collect the debt by filing Nyberg I was unfair and 

deceptive because it sidestepped "other defenses" that arose out of the contract between Nyberg 

and Capital One. See Comp!. 4. Thus, the grounds for declining to issue a Colorado River stay 

are even stronger in this case than they were in Intel. 

In sum, there is a substantial doubt that Nyberg II will resolve all of the issues in this 

case. Consequently, PRA's Motion to Stay is denied. 5 

CONCLUSION 

For the reasons provided above, PRA's Request for Judicial Notice (#15) is granted and 

PRA's Motion to Stay (#13) is denied. 

Dated this 22nd day of January, 2016. 

United States Magistrate Judge 

5 Since there is a substantial doubt as to whether Nyberg II will resolve all the issues before this 

comt, I need not consider the remaining Colomdo River factors. See, e.g., Intel, 12 F.3d at 913 · 

n. 7 ("Since we find that there exists a substantial doubt as to whether the state comt proceedings 

will resolve all of the disputed issues in this case, it is unnecessary for us to weigh the other 

factors included in the Colorado River analysis."). I neve1theless note that the remaining 

relevant factors collectively favor declining to stay this action. 

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