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Page 1 – DEFENDANT MBO PARTNERS, INC.’S MOTION TO DISMISS PLTF’S AMENDED COMPLAINT 

DAVIS WRIGHT TREMAINE LLP 

1300 S.W. Fifth Avenue, Suite 2400 

Portland, Oregon 97201-5610 

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

JENNA L. MOONEY, OSB #993249 

jennamooney@dwt.com 

KALIA WALKER, OSB #154434 

kaliawalker@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 

Attorneys for Defendant MBO Partners, Inc. 

IN THE UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

AT PORTLAND 

ANDREA OLSON, 

 Plaintiff, 

 v. 

MBO PARTNERS, INC., a Virginia 

Corporation; UNITED STATES OF 

AMERICA, acting by and through the 

Department of Energy and the Bonneville 

Power Administration; and JAMES RICHARD 

PERRY, Secretary of the Department of 

Energy, 

 Defendant. 

Case No. 3:15-cv-02216-HZ

DEFENDANT MBO PARTNERS, 

INC.’S MOTION TO DISMISS 

PLAINTIFF’S AMENDED 

COMPLAINT, OR IN THE 

ALTERNATIVE, TO STAY AND 

COMPEL ARBITRATION AND 

MEMORANDUM IN SUPPORT 

L.R. 7-1 CERTIFICATION 

Pursuant to Local Rule 7-1, counsel for Defendant MBO Partners, Inc. certifies that they 

conferred in good faith with Plaintiff Andrea Olson’s counsel via telephone on March 22 and 24, 

2017, but the parties were unable to reach agreement on the subject matter of this motion. 

Case 3:15-cv-02216-HZ Document 59 Filed 03/27/17 Page 1 of 8
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Page 2 – DEFENDANT MBO PARTNERS, INC.’S MOTION TO DISMISS PLTF’S AMENDED COMPLAINT 

DAVIS WRIGHT TREMAINE LLP 

1300 S.W. Fifth Avenue, Suite 2400 

Portland, Oregon 97201-5610 

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

I. MOTION 

Pursuant to § 4 of the Federal Arbitration Act, 9 U.S.C §§ 1-16 (the “FAA”), Defendant 

MBO Partners, Inc. (“MBO Partners”) moves this Court for an order dismissing Plaintiff Andrea 

Olson’s (“Olson”) Amended Complaint with prejudice, or in the alternative staying the claims, 

and compelling arbitration under the FAA. 

II. INTRODUCTION 

Olson is a party to a General Service Agreement with MBO Partners dated January 10, 

2012 (the “Agreement”). Dkt. 18, Ex. 1. The Agreement contains a provision that establishes 

arbitration as the exclusive method for resolving any disputes arising out of Olson’s relationship 

with MBO Partners (the “Arbitration Provision”). Olson filed a Complaint on November 24, 

2015, Dkt. 1, where each of the claims articulated arose out of her relationship with MBO 

Partners. Olson has now filed an Amended Complaint alleging virtually identical claims against 

MBO Partners. As with Olson’s initial Complaint, MBO Partners seeks enforcement of the terms 

of the Agreement and requests that the Court dismiss Olson’s Amended Complaint, or in the 

alternative stay the claims, and order Olson to submit her claims to binding arbitration as 

provided for in the Arbitration Provision. See Am. Exp. Co. v. Italian Colors Rest., 133 S. Ct. 

2304, 2309, 186 L. Ed. 2d 417 (2013) (arbitration is a matter of contract and courts must enforce 

an arbitration agreement according to its terms). 

III. FACTUAL BACKGROUND 

Olson began her relationship with MBO Partners on January 10, 2012. At the 

commencement of her relationship, she signed the Agreement electronically, evidencing her 

receipt and review of the document and agreement with its terms. According to the terms of the 

Arbitration Provision, Olson is unequivocally bound to arbitrate claims arising out of her 

relationship with MBO Partners. Specifically, the Arbitration Provision provides that: 

“[MBO Partners and Olson] agree that arbitration shall be the 

exclusive method of resolving any and all disputes between them 

including but not limited to disputes arising out of or related to 

their relationship or dealings, under this Agreement, under state, 

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Page 3 – DEFENDANT MBO PARTNERS, INC.’S MOTION TO DISMISS PLTF’S AMENDED COMPLAINT 

DAVIS WRIGHT TREMAINE LLP 

1300 S.W. Fifth Avenue, Suite 2400 

Portland, Oregon 97201-5610 

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

federal or local or other law, under common law, or otherwise.” 

Dkt. 18, Ex. 1, ¶ 10. 

The Agreement further provides that Olson agrees that both parties are waiving their rights to 

trial by jury, in favor of arbitration. Id. at ¶ 11. 

Olson initiated this litigation on November 24, 2015, despite her prior agreement to the 

terms of the Arbitration Provision. On February 19, 2016, MBO Partners filed its Motion to 

Dismiss Plaintiff’s Complaint, or in the Alternative, to Stay and Compel Arbitration and 

Memorandum in Support (“Motion to Dismiss”). Dkt. 16. In July 2016, Olson filed her response 

to the Motion to Dismiss in two separate filings. Dkt. 27 and 28. MBO Partners filed its Reply in 

Support of Defendant’s Motion to Dismiss Plaintiff’s Complaint, or in the Alternative, to Stay 

and Compel Arbitration (“Reply”). Dkt. 35. On October 20, 2016, this Court granted MBO 

Partners’ Motion to Dismiss. Dkt. 48. The Court also issued a sua sponte order appointing Olson 

counsel to amend her complaint and address deficiencies in her pleading, including Olson’s 

failure to plead facts contradicting the Court’s ruling that her claims are subject to arbitration. Id.

IV. ARGUMENT 

A. The Court Should Dismiss This Action Because All Claims Are Subject to 

Arbitration. 

Olson’s Complaint and Amended Complaint allege virtually identical claims against 

MBO Partners. As this Court has already concluded, however, Olson’s claims against MBO 

Partners should be dismissed based on the Agreement’s Arbitration Provision. See Dkt. 48 at 12. 

(“Here, the Court has explained why Plaintiff’s claims are subject to arbitration and, thus, must 

be dismissed.”) Despite being given the opportunity to cure the deficiencies in her Complaint, 

Olson has not pled any new facts that call into question the Agreement’s enforceability or the 

Court’s prior ruling. 

In Olson’s response to MBO Partners’ Motion to Dismiss, Dkt. 27 and 28, she alleged 

that the Agreement was (1) unenforceable under ORS 36.620(5); (2) unconscionable; (3) 

obtained under duress; and (4) obtained based on misrepresentation or fraudulent inducement. 

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Page 4 – DEFENDANT MBO PARTNERS, INC.’S MOTION TO DISMISS PLTF’S AMENDED COMPLAINT 

DAVIS WRIGHT TREMAINE LLP 

1300 S.W. Fifth Avenue, Suite 2400 

Portland, Oregon 97201-5610 

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

Without reiterating all of its prior arguments, MBO Partners briefly addresses each of these 

claims below. 

1. The FAA preempts ORS 36.620(5). 

Olson argued that the Arbitration Provision was unenforceable because it does not 

comply with ORS 36.620(5). The Court noted in its Opinion & Order, however, that ORS 

36.620(5) is preempted by the Federal Arbitration Act (FAA), 9 U.S.C. § 2. Dkt. 48 at 7. 

Accordingly, the Arbitration Provision is not rendered unenforceable due to MBO Partners’ 

failure to comply with ORS 36.620(5). 

2. The Arbitration Provision is neither procedurally nor substantively 

unconscionable. 

Olson also alleged that the Arbitration Provision is invalid because it is unconscionable. 

She claimed the Agreement was procedurally unconscionable because it was a contract of 

adhesion presented on a “take it or leave it” basis. Oregon courts have consistently agreed, 

however, that unequal bargaining power “is not enough to invalidate an arbitration clause on the 

basis of unconscionability.” See e.g. Motsinger v. Lithia Rose-FT, Inc., 211 Or. App. 610, 617, 

156 P.3d 156, 161 (2007); Chalk v. T-Mobile USA, Inc., 560 F.3d 1087, 1094 (9th Cir. 2009) 

(applying Oregon law, held that the “take-it-or-leave-it” nature of an arbitration agreement, 

standing alone, is insufficient to render it procedurally unconscionable). This Court, citing Chalk 

v. T-Mobile USA, noted that “[w]here the arbitration clause is not hidden or disguised, and the 

plaintiff is given time to read the documents before assenting to their terms, there is no 

procedural unconscionability.” Dkt. 48 at 9-10. 

MBO Partners gave Olson ample opportunity to read the six-page Agreement prior to 

signing. She voluntarily agreed to its terms by signing the Agreement in exchange for 

employment. Olson does not allege in either complaint that the Arbitration Provision was hidden 

or that she was not provided with an opportunity to review and ask questions about the 

Agreement. 

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Page 5 – DEFENDANT MBO PARTNERS, INC.’S MOTION TO DISMISS PLTF’S AMENDED COMPLAINT 

DAVIS WRIGHT TREMAINE LLP 

1300 S.W. Fifth Avenue, Suite 2400 

Portland, Oregon 97201-5610 

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

Olson’s Amended Complaint also fails to allege facts supporting her claim that the 

Agreement was substantively unconscionable. Substantive unconscionability refers to the terms 

of a contract. Motsinger, 211 Or. App. at 614. Olson does not allege that the terms of the 

Agreement are unreasonable or substantively unfair. As noted in the MBO Partners’ Reply, Dkt. 

35, the Arbitration Provision requires the arbitrator to follow the applicable American 

Arbitration Association’s rules. The terms of the Agreement apply to both parties and provide 

Olson with any remedy that would otherwise be available to her had the dispute been heard in 

court. In short, the Agreement is not unconscionable and Olson fails to assert any facts in support 

of this claim. 

3. Olson did not sign the Agreement under duress. 

Olson also claims that she was forced to sign the Agreement under duress because if she 

did not sign she would have lost her job at BPA. Under Oregon law, the elements for a prima 

facie case of economic duress are “(1) wrongful acts or threats; (2) financial distress caused by 

the wrongful acts or threats, and (3) the absence of any reasonable alternative to the terms 

presented by the wrongdoer.” Oregon Bank v. Nautilus Crane & Equip. Corp., 68 Or. App. 131, 

142–43, 683 P.2d 95, 103 (1984). Olson’s pleadings make no allegations, and MBO Partners 

denies, that the company engaged in “wrongful acts or threats” in obtaining her signature on the 

Agreement. Olson also fails to allege facts regarding the latter two prongs of her prima facie 

burden. Accordingly, the Court should affirm its ruling as to Olson’s duress claim. 

4. MBO Partners did not misrepresent the terms of the Arbitration 

Provision. 

Finally, MBO Partners did not misrepresent the Agreement’s content or fraudulently 

induce Olson to sign the Agreement. To prevail on this claim, Olson must establish that “1) that 

the defendants falsely represented a material fact; 2) that the misrepresentation was knowingly 

made, or made with an insufficient basis for asserting its truth (scienter); 3) that the 

misrepresentation was made with the intention of inducing [Olson] to act or refrain from acting; 

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Page 6 – DEFENDANT MBO PARTNERS, INC.’S MOTION TO DISMISS PLTF’S AMENDED COMPLAINT 

DAVIS WRIGHT TREMAINE LLP 

1300 S.W. Fifth Avenue, Suite 2400 

Portland, Oregon 97201-5610 

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

4) that [Olson] justifiably relied on defendant's misrepresentation; and 5) that [Olson] suffered 

resultant damage.” Platt Elec. Supply, Inc. v. Menlo Logistics, Inc., No. CIV.00-474-S, 2001 WL 

34043437, at *2 (D. Or. Apr. 2, 2001) (citation omitted). 

Olson’s claim falls short because the Arbitration Provision was part of the Agreement 

that Olson knowingly signed and MBO Partners did not misrepresent any facts in the Agreement. 

The Arbitration Provision was provided in paragraph 10 of the Agreement in plain language. In 

paragraph 11, it was again noted that “[a]rbitration will be the exclusive method for resolving 

disputes between [Olson and MBO Partners].” In other words, the Arbitration Provision was 

clearly and conspicuously provided in the Agreement Olson signed. Moreover, Olson’s 

Amended Complaint does not allege that MBO Partners made any false representation of 

material fact in the Agreement. 

In short, Olson’s Amended Complaint does not allege any new facts concerning the 

validity of the parties’ Agreement. Further, Olson acknowledges that the Agreement contains the 

Arbitration Provision. Dkt. 56 at ¶ 109. Olson asks the Court to enter a stay of proceedings 

pending arbitration if it decides to enforce the Arbitration Provision. Id. The Court should uphold 

its prior ruling and deny Olson’s request. As noted in MBO Partners’ Motion to Dismiss, when 

an arbitration agreement has been shown to be enforceable, it is well established that courts “may 

sua sponte dismiss a case if all claims are subject to the arbitration agreement.” Escobedo v. 

Apple Nevada, LLC, No. 2:12-CV-00437-GMN, 2013 WL 632096, at *1 (D. Nev. Feb. 20, 

2013). Dismissal is appropriate here because all of Olson’s claims are arbitrable so there is no 

“live controversy before the court,” meaning that “[r]etaining jurisdiction would serve no 

purpose,” and the appropriate procedure is dismissal. Dancu v. Coopers & Lybrand, 778 F. Supp. 

832, 835 (E.D. Pa. 1991). Olson’s Amended Complaint against MBO should be dismissed and 

her claims submitted to arbitration. 

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Page 7 – DEFENDANT MBO PARTNERS, INC.’S MOTION TO DISMISS PLTF’S AMENDED COMPLAINT 

DAVIS WRIGHT TREMAINE LLP 

1300 S.W. Fifth Avenue, Suite 2400 

Portland, Oregon 97201-5610 

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

B. The Presence of Additional Defendants Does Not Alter the Agreement’s 

Enforceability. 

Olson’s Amended Complaint adds the Bonneville Power Administration and James 

Richard Perry, Secretary of the Department of Energy, as defendants in this action. These 

additional defendants, however, do not change the fact that Olson’s claims against MBO Partners 

remain subject to arbitration. See Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 

U.S. 1, 20, 103 S. Ct. 927, 939, 74 L. Ed. 2d 765 (U.S. 1983) (“[A]n arbitration agreement must 

be enforced notwithstanding the presence of other persons who are parties to the underlying 

dispute but not to the arbitration agreement.”); Simpson v. Lifestyles, LLC, No. CIV. 07-1251-

HA, 2008 WL 1882838, at *3 (D. Or. Apr. 24, 2008) (rejecting plaintiff’s argument that 

arbitration was improper because all defendants were not parties to arbitration agreement). Olson 

has a binding agreement to arbitrate her claims against MBO Partners. The FAA requires that the 

Court enforce the Agreement even if it results in bifurcated proceedings against the named 

defendants. 

V. CONCLUSION 

For all the reasons described above, MBO Partners respectfully requests this Court 

dismiss Olson’s Amended Complaint with prejudice or, in the alternative, stay the claims and 

compel arbitration. 

DATED this 27th day of March, 2017. 

DAVIS WRIGHT TREMAINE LLP

By s/ Kalia Walker 

JENNA L. MOONEY, OSB #993249 

jennamooney@dwt.com

 KALIA WALKER, OSB #154434 

kaliawalker@dwt.com Telephone: (503) 241-2300 

Facsimile: (503) 778-5299 

Attorneys for Defendant MBO Partners, Inc. 

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Page 1 – CERTIFICATE OF SERVICE 

DAVIS WRIGHT TREMAINE LLP 

1300 S.W. Fifth Avenue, Suite 2400 

Portland, Oregon 97201-5610 

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

CERTIFICATE OF SERVICE 

I hereby certify that I served a copy of the foregoing DEFENDANT MBO PARTNERS, 

INC.’S MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT, OR IN THE 

ALTERNATIVE, TO STAY AND COMPEL ARBITRATION AND MEMORANDUM IN 

SUPPORT on: 

Thomas C. Sand 

Email: tom.sand@millernash.com 

Ivan Resendiz Gutierrez 

Email: ivan.resendiz@millernash.com 

Miller Nash Graham & Dunn LLP 

111 SW Fifth Avenue, Suite 3400 

Portland, OR 97204 

Phone: 503-224-5858 

Fax: 503-224-0155 

Of Attorneys for Plaintiff Andrea Olson 

 by using Cm/ECF electronic service. 

DATED this 27th day of March, 2017. 

DAVIS WRIGHT TREMAINE LLP

By s/ Kalia Walker 

JENNA L. MOONEY, OSB #993249 

jennamooney@dwt.com

 KALIA WALKER, OSB #154434 

kaliawalker@dwt.com Attorneys for Defendant MBO Partners, Inc. 

Case 3:15-cv-02216-HZ Document 59 Filed 03/27/17 Page 8 of 8