DWT 28555265v1 0105455-000001

Page 1 – RESPONSE AND OBJECTIONS TO PLAINTIFF’S “NOTICE OF ADDITIONAL LEGAL AUTHORITIES”

DAVIS WRIGHT TREMAINE LLP

1300 S.W. Fifth Avenue, Suite 2400

Portland, Oregon 97201-5610

(503) 241-2300 main  (503) 778-5299 fax

DUANE A. BOSWORTH, OSB #825077

duanebosworth@dwt.com

TIM CUNNINGHAM, OSB #100906

timcunningham@dwt.com

DAVIS WRIGHT TREMAINE LLP

1300 S.W. Fifth Avenue, Suite 2400

Portland, Oregon 97201-5610

Telephone: (503) 241-2300

Facsimile: (503) 778-5299

CAMERON STRACHER (admitted pro hac vice)

cam@stracherlaw.com

4 New York Plaza, 2d Floor

New York, NY 10004

Telephone: (212) 743-6513

Facsimile: (646) 810-3089

Attorneys for Defendants

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

AT PORTLAND

CONSUMER CELLULAR, 

INCORPORATED, an Oregon corporation,

Plaintiff,

v.

CONSUMERAFFAIRS.COM, INC., a Nevada 

corporation; CONSUMERS UNIFIED, LLC, a 

Nevada limited liability company; and DAVID 

ZACHARY CARMAN,

Defendants.

Case No. 3:15-cv-01908-PK

RESPONSE AND OBJECTIONS TO 

PLAINTIFF’S “NOTICE OF 

ADDITIONAL LEGAL 

AUTHORITIES”

Defendant objects to plaintiff’s “Notice of Additional Legal Authorities.” That “Notice” 

is an attempted end run around LR 7-1(e), which provides for a response and reply but under 

Section (3) states: “Unless directed by the court, no further briefing is allowed.” While 

Case 3:15-cv-01908-PK Document 27 Filed 12/15/15 Page 1 of 4
DWT 28555265v1 0105455-000001

Page 2 – RESPONSE AND OBJECTIONS TO PLAINTIFF’S “NOTICE OF ADDITIONAL LEGAL AUTHORITIES”

DAVIS WRIGHT TREMAINE LLP

1300 S.W. Fifth Avenue, Suite 2400

Portland, Oregon 97201-5610

(503) 241-2300 main  (503) 778-5299 fax

plaintiff’s “Notice” is not accompanied by text, it nevertheless attempts further briefing, as 

discussed below, with citations containing highlighted portions attempting to shore up existing 

arguments on the one hand and serving as a basis for wholly new arguments – not stated in either 

plaintiff’s complaint or its Response – on the other.

It should be noted that plaintiff does not provide “new authority” in the sense that it seeks 

to make known to the Court decisions, treatises, or other authorities that have arisen only since 

defendant filed its Response. Everything that plaintiff would now add was easily available to 

plaintiff at the time of its Response.

With regard to all of the authorities cited in “Exhibit 1” plaintiff simply reiterates 

arguments already made. Those authorities repeatedly state that the tort of intentional 

interference with perspective economic advantage arises when a defendant “induces a third party 

not to enter into or not continue a business relationship with the plaintiff.” Plaintiff has made its 

argument in its Response concerning that issue. (For the record, none of plaintiff’s citations 

address the actual issue before the Court, which is whether plaintiff has provided substantial 

evidence identifying any consumer with which plaintiff had an existing business relationship.) 

Similarly, plaintiff attempts to add strength to its existing argument in the authorities 

cited in “Exhibit 2” by further explaining what it deems the relaxed requirements of pleading 

fraud in a RICO matter, subject to the pleading requirements of Rule 9(b). Plaintiff attempts to 

provide additional authorities regarding the pleading of “corporate fraud” to shore up an 

argument already made in its Response, with authorities all easily available to plaintiff at the 

time of that Response.

With regard to the authorities listed in “Exhibit 3,” on the other hand, plaintiff is clearly 

attempting to set the stage for a new theory of liability never stated in plaintiff’s complaint or in 

its Response. The authorities plaintiff would add concern “defamation by implication,”

something never raised by plaintiff before. This poses two enormous problems. First, defendant

has no idea what implication or implications plaintiff has in mind. Plaintiff is not free at this 

Case 3:15-cv-01908-PK Document 27 Filed 12/15/15 Page 2 of 4
DWT 28555265v1 0105455-000001

Page 3 – RESPONSE AND OBJECTIONS TO PLAINTIFF’S “NOTICE OF ADDITIONAL LEGAL AUTHORITIES”

DAVIS WRIGHT TREMAINE LLP

1300 S.W. Fifth Avenue, Suite 2400

Portland, Oregon 97201-5610

(503) 241-2300 main  (503) 778-5299 fax

juncture to surreptitiously amend its complaint by introducing some still at this time unknown 

implication. Second, it is well-established Oregon law that the connection between any 

implication plaintiff would urge and any alleged defamatory statement may not be “tenuous.” 

See, e.g., King v. Menolascino, 276 Or. 501, 504 (1976). Plaintiff’s wholly new argument about 

defamation by implication presents the insurmountable problem that not only has plaintiff not 

identified the content of any such implication but, as defendant has previously pointed out, 

plaintiff has not even identified, in haec verba, any alleged defamatory statement. Defamation is 

not a matter of gestalt. Neither this Court nor defendant can identify exactly what plaintiff 

claims is a statement made by defendant that is false and defamatory; plaintiff’s sole allegation is 

that a defamatory statement or statements can be found somewhere in “paragraphs 1-24 above” 

of its complaint. From this lack of in haec verba, it is further impossible for the Court to decide 

whether any “implication” is tenuous, even more so when the content of any such implication 

has not been identified. Defendant objects to the addition of the authorities contained in 

“Exhibit 3” and to this attempt to introduce a new theory into this matter.

Finally, with regard to “Exhibit 4,” defendant is simply at a loss as to what argument 

plaintiff intends from the highlighted portion of the decision cited. Clearly this highlighted 

portion is intended to further some argument, but plaintiff would have defendant await oral 

argument before knowing what that argument is. Defendant objects to this additional authority.

Although plaintiff attempts to denominate its belated filing a “Notice,” it clearly serves as 

the basis for both additional and new argument. As has been established, a surreply disguised as 

another type of filing will nevertheless be considered a surreply. Numrich v. Qwest Corp., 

No. 3:14-CV-01864-BR, 2015 WL 1883917 at *2 (D. Or. April 23, 2015). As is also clear, 

“surreplies are disfavored and the party seeking to submit one has to demonstrate a compelling 

reason for permitting the additional filing and such requests are routinely disallowed when that 

burden is not met.” Raybould v. JPMorgan Chase Bank, N.A., No. 6:13-CV-1966-TC, 2014 WL 

7146962 at *1 n.3 (D. Or. Dec. 11, 2014). 

Case 3:15-cv-01908-PK Document 27 Filed 12/15/15 Page 3 of 4
DWT 28555265v1 0105455-000001

Page 4 – RESPONSE AND OBJECTIONS TO PLAINTIFF’S “NOTICE OF ADDITIONAL LEGAL AUTHORITIES”

DAVIS WRIGHT TREMAINE LLP

1300 S.W. Fifth Avenue, Suite 2400

Portland, Oregon 97201-5610

(503) 241-2300 main  (503) 778-5299 fax

Although the entirety of plaintiff’s submission is improper, arguments deriving from 

Exhibits 3 and 4 pose problems that should not be tolerated. Defendant asks for a remedy for 

those problems, either in the form this Court has ordered in Morris v. Zusman, 857 F. Supp. 2d 

1082, 1093 (D. Or. 2012) (declining to consider substantive legal argument advanced in a 

surreply), or in another equitable solution.

DATED this 15th day of December, 2015.

DAVIS WRIGHT TREMAINE LLP

By s/ Duane A. Bosworth

DUANE A. BOSWORTH, OSB #825077

duanebosworth@dwt.com

TIM CUNNINGHAM, OSB #100906

timcunningham@dwt.com

Telephone: (503) 241-2300

Facsimile: (503) 778-5299

Of Counsel:

CAMERON STRACHER (admitted pro hac vice)

cam@stracherlaw.com

4 New York Plaza, 2d Floor

New York, NY 10004

Telephone: (212) 743-6513

Facsimile: (646) 810-3089

Attorneys for Defendants

Case 3:15-cv-01908-PK Document 27 Filed 12/15/15 Page 4 of 4