IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

PALMER EVENTS, LLC, an Oregon limited 

liability company, 

Plaintiff, 

v. 

HYUNDAI HOPE ON WHEELS, a California 

non-profit corporation, 

Defendant. 

PAPAK, Magistrate Judge: 

3: 15-cv-02223-PK 

FINDINGS AND 

RECOMMENDATION 

Plaintiff Palmer Events, LLC ("Palmer") brings this action against Hyundai Hope on 

Wheels ("Hyundai"), asse1ting claims for breach of contract, quantum meruit, and account stated. 

Now before the comt is Hyundai's Motion to Dismiss or Transfer (#3). ("Hyundai's Motion"). 

Hyundai moves the cou1t to dismiss Palmer's Complaint(# 1-2) pursuant to Federal Rule of Civil 

Procedure l 2(b) for improper venue and failure to state a claim upon which relief can be granted. 

In the alternative, Hyundai moves the cou1t to transfer the case to the United States District 

Court for the Central District of California pursuant to 28 U.S.C. § 1404(a). 

For the reasons provided below, Hyundai's Motion should be granted in pmt and denied 

in pmt. Hyundai's motion to dismiss for improper venue should be denied. Hyundai's motion to 

transfer should be granted. Hyundai's motion to dismiss for failure to state a claim should denied 

as moot except to the extent the motion pe1tains to Palmer's account stated claim, which Palmer 

now concedes it failed to state. See Resp. 6 (#9). Palmer's account stated claim should be 

dismissed without prejudice. 

FINDINGS AND RECOMMENDATION PAGE-1 
LEGAL STANDARD 

I. Dismissal for Improper Venue 

Federal Rule of Civil Procedure 12(b)(3) permits a party to move for dismissal of an 

action for improper venue. In adjudicating a 12(b)(3) motion, "the allegations in the complaint 

need not be accepted as tiue, and the coutt may consider evidence outside the pleadings." eBay 

Inc. v. Digital Point Solutions, Inc., 608 F.Supp.2d 1156, 1161 (N.D.Cal.2009); accord Argueta 

v. Banco }viexicano, S.A., 87 F.3d 320, 324 (9th Cir. 1996). The plaintiffbears the burden of 

establishing that venue is proper. Piedmont Label Co. v. Sun Garden Packing Co., 598 F.2d 491, 

496 (9th Cir.1979). 

28 U.S.C. § 139l(b) is the general venue statute. However, that provision limits only 

where an action may be "brought." 28 U.S.C. § 1391(b). When, as in this case, an action is 

removed and subsequently challenged for improper venue, 28 U.S.C. § 1441(a) governs. See 

Polizzi v. Cowles }vfagazines, Inc., 345 U.S. 663, 665-66 (1953). That section provides that 

venue is proper in "the district court of the United States for the district and division embracing 

the place where such action is pending." 28 U.S.C. § 1441(a). 

II. Transfer for the Convenience of the Parties 

28 U.S.C. § 1404(a) provides, "For the convenience of parties and witnesses, in the 

interest of justice, a district court may transfer any civil action to any other district or division 

where it might have been brought." "Under§ 1404(a), the district court has discretion to 

adjudicate motions for transfer according to an individualized, case-by-case consideration of 

convenience and fairness." Jones v. GNC Franchising, Inc., 211F.3d495, 498 (9th Cir. 2000) 

(footnote omitted) (internal quotation marks omitted) (citation omitted). "When ruling on 

motions to transfer based on§ 1404(a), the court may consider undisputed facts outside of the 

FINDINGS AND RECOMMENDATION PAGE-2 
pleadings." l'vforgan Tire of Sacramento, Inc. v. Goodyear Tire & Rubber Co., 60 F. Supp. 3d 

1109, 1113 (E.D. Cal. 2014) (citations omitted); accord Samson Tug & Barge Co. v. Koziol, 869 

F. Supp. 2d 1001, 1015 (D. Alaska 2012) (citing Gherebi v. Bush, 352 F.3d 1278, 1302 (9th Cir. 

2003)). "The defendant has the burden to 'make a strong showing of inconvenience' to upset the 

plaintiffs choice of forum." Doe v. Corp. of The Ass'n of the Presiding Bishop of The Church of 

Jesus Christ of Latter-Day Saints, No. 08-CV-371-SU, 2009 WL 2132722, at* 1 (D. Or. July 10, 

2009) (quoting Creative Tech., Ltd. v. Aztech Sys., 61F.3d696, 703 (9th Cir.1995)). 

FACTUAL BACKGROUND1 

Palmer is an Oregon limited liability company engaged in the business of events planning 

and management. Nick Howell acted as Palmer's agent in regard to the events underlying this 

suit. 

Hyundai is a California non-profit corporation that is affiliated with Hyundai Motors of 

America ("HMA"). Hyundai is authorized to do business in California. Hyundai is not 

registered with the Oregon Secretary of State. 

CMG2 is an events promotion agency that Palmer contends acted as Hytmdai's agent in 

procuring Palmer's services. Christine Benitez was a CMG employee who worked on CMG's 

Hyundai account and was therefore purpo1iedly authorized to represent Hyundai. 

1 I draw all reasonable inferences and resolve all factual disputes in favor of Palmer. See 

Benchmade Knife Co. v. Benson, No. CIV. 08-967-HA, 2010 WL 988465, at *4 (D. Or. Mar. 15, 

2010) (discussing the standard governing 12(b)(3) motions (citing }vfurphy v. Schneider 

National, Inc., 362 F.3d 1133, 1138 (9th Cir. 2004))); Airbus DS Optronics GmbH v. Nivisys 

LLC, No. CV-14-02399-PHX-JAT, 2015 WL 3439143, at *1 (D. Ariz .. May 28, 2015) 

(discussing the standard governing§ 1404(a) motions (quoting Sleepy Lagoon, Ltd. v. Tower 

Grp., Inc., 809 F. Supp. 2d 1300, 1306 (N.D.Okla.2011))). 

2 At oral argument, the parties suggested that the correct name of this entity is Marketing 

Concept Group, or "MCG." However, I refer to the entity as CMG because that is how it is 

identified in Palmer's Complaint. 

FINDINGS AND RECOMMENDATION P AGE-3 
On May 2, 2012, Benitez asked Howell to go to Los Angeles, California to work on an 

event for Hyundai. Howell subsequently traveled to Los Angeles pursuant to Benitez's request 

and incurred costs of $4,564.95 in doing so. 

On May 17, 2012, Palmer and Hyundai (allegedly acting through CMG, which in turn, 

was acting through Benitez) entered into a written agreement titled "Events Management & 

Timing Contract: 2012 Hyundai Hope on Wheels" (the "Agreement").3 The terms of the 

Agreement required Palmer to plan several Hyundai foot races in 2012. The races were to take 

place in the District of Columbia; Denver, Colorado; Fo1t W01th, Texas; Los Angeles, 

Califomia; and Orange County, California. The Agreement required a $60,000 deposit prior to 

Palmer's performance, which Palmer never received. 

On May 21, 2012, Howell met with Benitez and Benitez's supervisor, Zully Gonzalez. 

Benitez and Gonzalez asked Howell to attend a meeting with Hyundai at Hyundai's headquarters 

on the following day. Howell insisted on receiving the $60,000 deposit prior to attending the 

May 22, 2012 meeting. Benitez told Howell that the deposit was being wired to Palmer, and 

Howell agreed to attend the meeting. 

On June 27, 2012, HMA informed Howell that Hyundai was not a party to the 

Agreement. HMA further informed Howell that CMG had withdrawn from the Agreement. 

PROCEDURAL BACKGROUND 

Palmer filed suit against Hyundai in the Circuit Co mt of the State of Oregon for the 

County of Multnomah on October 27, 2015. Comp!. (#1-2). Hyundai removed the case to this 

comt on November 24, 2015. Notice of Removal (#1 ). This comt has jurisdiction on the basis 

of diversity of citizenship. See id.; 28 U.S.C. 1332. Hyundai filed its Motion to Dismiss or 

3 Hyundai vehemently argues that it never entered into a contract with Palmer. 

FINDINGS AND RECOMMENDATION PAGE--4 
Transfer (#3) on December 3, 2015. Palmer filed its Response (#9) on December 21, 2015. 

Hyundai filed its Reply (#12) on December 31, 2015. The paliies presented oral arguments on 

Hyundai's Motion on January 15, 2016. This matter is fully submitted and prepared for decision. 

DISCUSSION 

I. Motion to Dismiss for Improper Venue 

A. The Parties' Arguments 

Hyundai argues that venue is improper in this comt under the general venue provision, 28 

U.S.C. § 139l(b). In response, Palmer argues that venue is proper in this comt pursuant to a 

forum selection clause in the Agreement. 

B. Application and Recommendation 

I find that venue is proper in this cou1t. Hyundai's reliance on 28 U.S.C. § 1391(b) is 

misplaced. That section limits the districts where a civil action may be "brought." Id. This 

action was not "brought" in the District of Oregon; it was removed from the Circuit Cou1t of the 

State of Oregon for the County of Multnomah. See Notice of Removal (#1 ). Consequently, § 

1391(b) is inapplicable. See Polizzi, 345 U.S. at 665-66. Rather, venue of this removed action is 

governed by 28 U.S.C. § 1441(a). See id. That section provides that venue is proper in "the 

district court of the United States for the district and division embracing the place where such 

action is pending." 28 U.S.C. § 144l(a). The District of Oregon is the district embracing 

Multnomah County, the place where this action was pending prior to removal. Accordingly, 

Hyundai's 12(b)(3) motion to dismiss should be denied. See Polizzi, 345 U.S. at 665-66; Corp. 

of The Ass'n of the Presiding Bishop of The Church of Jesus Christ of Latter-Day Saints, 2009 

WL 2132722, at *7; accord Westby v. Lincoln Prop. Co., No. 5:14-CV-01800-BLF, 2014 WL 

2769068, at *2 (N.D. Cal. June 18, 2014); 1Vaher v. Staub, No. CV 09-8646 CAS JCX, 2010 WL 

FINDINGS AND RECOMMENDATION PAGE-5 
325747, at *5 (C.D. Cal. Jan. 4, 2010); Western Showcase Homes, Inc. v. Fuqua Homes, Inc., 

2010 WL 1838364 at* 3 (D. Nev. May 6, 2010); Eacikv. Peek, 888 F. Supp. 1405, 1413 (N.D. 

Ohio 1993). 

II. Motion to Transfer Venue 

A. The Parties' Arguments 

In the alternative to outright dismissal, Hyundai moves the comi to transfer the case to 

the Central District of California pursuant to 28 U.S.C. § 1404(a). In supp01i, Hyundai argues 

that this action could have been brought in the Central District of California because Hyundai is 

a California non-profit corporation with its principal place of business also located in California. 

Hyundai furthers argues that the current f01um is inconvenient and the interests of justice 

would be better served by transferring this action to the Central District of California. In 

suppo1i, Hyundai notes that no part of the Agreement was to be performed in Oregon. 

Moreover, because Palmer partially perfo1med the Agreement in California, witnesses and other 

sources of proof are predominately located in that state. Finally, Hyundai argues that transfer is 

appropriate because California law governs Palmer's claims. 

In response, Palmer argues that transfer is not appropriate because Hyundai consented to 

this court's jurisdiction by assenting to a forum selection clause in the Agreement. 

B. Application and Recommendation 

I find that this case should be transferred to the Central District of California. Section 

1404(a) provides: "For the convenience of parties and witnesses, in the interest of justice, a 

district court may transfer any civil action to any other district or division where it might have 

been brought or to any district or division to which all parties have consented." Thus, the 

threshold question I must answer is whether this case could have been brought in the Central 

FINDINGS AND RECOMMENDATION PAGE-6 
District of California. See id.; Jones, 211 F.3d at 498. Because Hyundai, the sole defendant in 

this action, is a California non-profit corporation, I find that this case could have been brought in 

the Central District of California. See 28 U.S.C. § 139l(b)(l) (stating that venue is proper in "a 

judicial district in which any defendant resides, if all defendants are residents of the State in 

which the district is located"); Daimler AG v. Bauman, 134 S. Ct. 746, 749 (2014) (discussing 

personal jurisdiction). 

Next, in determining whether transfer to the Central District of California is appropriate, 

"the presence of a f01um selection clause is a 'significant factor."' Jones., 211 F.3d at 498-99 

(footnote omitted) (citation omitted). I must also consider the following additional factors: 

(1) the location where the relevant agreements were negotiated and executed, (2) 

the state that is most familiar with the governing law, (3) the plaintiff's choice of 

forum, ( 4) the respective parties' contacts with the forum, (5) the contacts relating 

to the plaintiff's cause of action in the chosen forum, (6) the differences in the 

costs of litigation in the two forums, (7) the availability of compulsory process to 

compel attendance of unwilling non-paiiy witnesses, and (8) the ease of access to 

sources of proof. 

Id. (footnotes omitted) (citations omitted). 

1. Presence of a Forum Selection Clause 

I reject Palmer's argument that transfer of venue is precluded by a forum selection clause 

in the Agreement.4 The purp01ied forum selection clause provides as follows: "This Agreement 

shall be governed in accordance with the laws of the State of Oregon or any suits or actions shall 

be filed in the laws of, Multnomah County, State of Oregon." Proof of Service Ex. A, at 9 (#7). 

4 The Agreement, although referenced as Attachment A in Palmer's Complaint, was not actually 

attached to the Complaint filed in this court. However, Palmer did attach pmis of the 

Agreement, including the purported forum selection clause, to the Proof of Service (#7) it filed 

with the couti on December 12, 2015. I properly consider those portions of the Agreement in 

ruling on Hyundai's motion to transfer. See iV!organ Tire of Sacramento, 60 F. Supp. 3d at 1113 

("When ruling on motions to transfer based on§ 1404(a), the court may consider undisputed 

facts outside of the pleadings." (citations omitted)); Samson Tug & Barge, 869 F. Supp. 2d at 

1015 (same (citing Gherebi, 352 F.3d at 1302)). 

FINDINGS AND RECOMMENDATION PAGE-7 
The questionable drafting of this clause raises several issues of interpretation. Those issues are 

governed by federal law. See, e.g., Bridgemans Servs. Ltd. v. George Hancock, Inc., No. Cl4-

1714JLR, 2015 WL 4724567, at *3 (W.D. Wash. Aug. 7, 2015) ("A forum selection clause must 

be interpreted before it can be enforced, and federal law governs that interpretation." (citing 

1'v!anetti-Farrow, Inc. v. Gucci Am., Inc., 858 F.2d 509, 513 (9th Cir.1988))). 

"If the language of a forum selection clause requires analysis to interpret its exact 

meaning, the court applies ordinary principles of contract interpretation." PacifiCorp v. 

SimplexGrinnell LP, No. CIV. 09-412-AC, 2009 WL 3208008, at *3 (D. Or. Oct. 6, 2009) (citing 

Hunt Wesson Foods, Inc. v. Supreme Oil Co., 817 F.2d 75, 77 (9th Cir. 1987)). The tenns ofa 

forum selection clause "should be given their plain meaning and any ambiguities should be 

construed against the drafter." Id. (citing Hunt Wesson Foods, 817 F.2d at 77-78); accord 

Simonoffv. Expedia, Inc., 643 F.3d 1202, 1205 (9th Cir. 2011) ("[C]ommon or normal meaning 

oflanguage will be given to the words of a contract unless circumstances show that in a 

pmiicular case a special meaning should be attached to it." (internal quotation marks omitted) 

(citations omitted)); Doe 1 v. AOL LLC, 552 F.3d 1077, 1081 (9th Cir. 2009). 

In this case, the primary issue of interpretation is whether the above-quoted terms of the 

Agreement even constitute a forum selection clause. I find that they do not. Cf Docksider Ltd. 

v. Sea Technology, Ltd., 875 F.2d 762, 763-64 (9th Cir.1989) (finding the following language 

constituted a forum selection clause: "Venue of any action brought hereunder shall be deemed to 

be in Gloucester County, Virginia."); Hunt Wesson Foods, 817 F.2d at 76 (finding the following 

language constituted a forum selection clause: "The courts of California, County of Orange, shall 

have jurisdiction over the pmiies in any action at law relating to the subject matter or the 

interpretation of this contract."). The first part of the purported forum selection clause is nothing 

FINDINGS AND RECOMMENDATION PAGE-8 
more than a choice of law provision. Thus, the alleged fornm selection clause must derive from 

the following language: "or any suits or actions shall be filed in the laws of, Multnomah County, 

State of Oregon." See Proof of Service Ex. A, at 9 (#7) (emphasis added). File means "I. To 

deliver a legal document to the court clerk or record custodian for placement into the official 

record .... 2. To commence a lawsuit." FILE, Black's Law Dictionwy (10th ed. 2014); see .also 

Doe 1, 552 F.3d at 1082 (referencing Black's Law Dictiona1y to interpret the terms of a fornm 

selection clause). Thus, the term "filed" is unambiguous. 5 See, e.g., id. at 1081 (holding that a 

forum selection clause is ambiguous only if its terms are reasonably susceptible to more than one 

interpretation). 

Under the plain meaning of the terms of the Agreement, the pmiies were only required to 

initially file suit in Multnomah County, Oregon. See id. ("Contract terms are to be given their 

ordinary meaning, and when the te1ms of a contract are clear, the intent of the pmiies must be 

ascertained from the contract itself. Whenever possible, the plain language of the contract should 

be considered first." (internal quotation marks omitted) (quoting Klamath Water Users 

Protective Ass'n v. Patterson, 204 F.3d 1206, 1210 (9th Cir.1999))). Nothing in the agreement 

precludes either party from subsequently removing or transfening the action. See id.; Simonoff, 

643 F.3d at 1205 (discussing interpretation of forum selection clauses); PacifiCorp, 2009 WL 

3208008, at *3-4 (discussing the difference between mandatory and permissive forum selection 

clauses); see also Holland Am. Line Inc. v. Wartsila N Am., Inc., 485 F.3d 450, 458 (9th Cir. 

5 Because, as explained below, I find that the plain language of the Agreement at most requires 

filing in Multnomah County, I need not reach the more perplexing question of what it means to 

file a suit "in the laws" of a county. See Proof of Service Ex. A, at 9 (#7). The use of the 

disjunctive conjunction "or" to join to two clauses in the purpmied forum selection clause raises 

an additional question as to whether the pmiies were even required to file suits in Multnomah 

County, Oregon. See Proof of Service Ex. A, at 9 (#7). However, I need not reach that issue 

either. 

FINDINGS AND RECOMMENDATION P AGE-9 
2007) (holding that contested and unsupp01ted allegations that a defendant assented to a forum 

selection clause through an agent are insufficient to subject the defendant to the court's personal 

jurisdiction). 

Moreover, although I find that the term "filed" is not ambiguous, I would reach the same 

result ifit were ambiguous. Ambiguous language must be construed against the drafter. E.g., 

Hunt Wesson Foods, 817 F.2d at 78 (citations omitted). Here, Palmer is the drafter.6 Construing 

the language against Palmer, I would conclude that it does not provide for an exclusive forum in 

Multnomah County, Oregon. See id. 

In sum, the presence of a forum selection clause does not disfavor transfer of venue. 

2. Location Where the Contract was Negotiated and Executed 

The parties have not provided info1mation regarding where the contract was negotiated or 

executed. Consequently, this factor is neutral. 

3. State that is Most Familiar with the Governing Law 

The parties dispute whether Oregon or California provides the substantive law governing 

the claims and defenses in this case. I need not engage in a complicated choice oflaw analysis to 

resolve that dispute. Even if Oregon provided the applicable substantive law, that fact would not 

be sufficient, on balance, to deny Hyundai's motion to transfer. 

As the Supreme Comt recently explained in the context of a motion to transfer, "federal 

judges routinely apply the law of a State other than the State in which they sit." At!. 1l;Jarine 

Const. Co. v. US. Dist. Court for W. Dist. a/Texas, 134 S. Ct. 568, 584 (2013). Moreover, I am 

"not aware of any exceptionally arcane features of [Oregon] contract law that are likely to defy 

comprehension by a federal judge sitting in [California]." Id. Thus, at most, this factor would 

6 The context of the Agreement makes clear that Palmer is the drafter. Moreover, Palmer 

conceded at oral argument that it drafted the Agreement. 

FINDINGS AL"ID RECOMMENDATION PAGE-10 
only slightly disfavor transfer of venue. See Hosick v. Catalyst IT Servs., Inc., No. 3:15-CV01100-SI, 2015 WL 6773757, at *7 (D. Or. Nov. 5, 2015); accord Almont Ambulatory Surge1y 

Ctr., LLC v. UnitedHealth Grp., Inc., 99 F. Supp. 3d 1110, 1167 (C.D. Cal. Apr. 10, 2015); 

O'keefle's Inc. v. Access Info. Techs. Inc., No. 15-CV-03115-EMC, 2015 WL 6089418, at *3 

(N.D. Cal. Oct. 16, 2015). 

4. Palmer's Choice of Forum 

As stated above, Palmer chose Oregon as its forum by initially filing this case in 

Multnomah County Circuit Court. However, "[i]fthe operative facts have not occmTed within 

the forum and the forum has no interest in the parties or subject matter, plaintiffs choice is 

entitled only minimal consideration." DeFazio v. Hollister Employee Share Ownership Trust, 

406 F. Supp. 2d 1085, 1088 (E.D. Cal. 2005) (quoting Lou v. Belzberg, 834 F.2d 730, 739 (9th 

Cir.1987)). This court has little interest in a California defendant. Moreover, as explained 

below, the record before the court demonstrates that all of the operative facts in this matter 

occurred outside of Oregon. Thus, this factor is entitled to little weight. See Corp. of The Ass'n 

of the Presiding Bishop of The Church of Jesus Christ of Latter-Day Saints, 2009 WL 2132722, 

at *2 (affording this factor little weight where the plaintiff was the only party who resided in the 

forum and "most of' the operative facts occurred outside of the forum). 

5. Oregon Contacts 

The patiies have provided remarkably little information regarding the relative contacts 

between Oregon, California, and the events underlying this litigation. However, Palmer's 

Complaint suggests that all relevant contacts point toward California. Again, Hyundai-the sole 

Defendant-is a California non-profit corporation licensed to do business in California and not 

Oregon. Comp!. 'if 2 (#1-2). At oral argument, Palmer conceded CMG, the purported agent who 

FINDINGS AND RECOMMENDATION PAGE-11 
signed the Agreement on behalf of Hyundai, is also located in California. The Agreement 

contemplated performance in six locations. Id. at ~ 4 While none of the six locations were in 

Oregon, two of them were in California. Id. Palmer also contends it sustained damages in 

pattially performing the Agreement in Los Angeles, California. Id. at~ 5. Palmer further 

contends that it attended a meeting with Hyundai at Hyundai's headqumters on May 22, 2012 in 

relation to the Agreement. Id. at ~ 8. Palmer conceded at oral argument that the May 22, 2012 

meeting also took place in California. Thus, this factor strongly favors transfer of venue. 

6. Differences in Costs of Litigation and Ease of Access to Sources of Proof 

Because all of the relevant events occurred in California, most of the witnesses and other 

sources of proof are likely to be in California as well. Thus, both of these factors favor transfer 

of venue. 

7. Availability of Compulsory Process 

Federal Rule of Civil Procedure 45( c )(1) provides that a subpoena may command an 

individual to attend a deposition, hearing, or trial within the state where the person resides or is 

employed or within 100 miles of the location of the person's residence or place of employment. 

Again, the parties have not provided detailed information about the location of potential 

witnesses. However, as explained above, at least some witnesses are likely to reside or be 

employed in Los Angeles, California, as that is the location of Palmer's alleged pa1t perfonnance. 

Los Angeles is over 100 miles from Portland, Oregon. The Western Division of the United 

States District Comt for the <::entral District of California is in Los Angeles. The Eastern 

Division (in Riverside, California) and the Southern Division (in Santa Ana, California) are both 

within 100 miles of Los Angeles. Thus, this factor favors transfer of venue. 

FINDINGS AND RECOMMENDATION PAGE-12 
In sum, upon balancing all of the factors, I conclude that this matter should be transfem'!d 

to the United States District Court for the Central District of California. 

III. Failure to State a Claim 

Palmer now concedes that it failed to state a claim for account stated. See Resp. 6 (#9). 

Therefore, that claim is dismissed without prejudice. Because I find that Hyundai's motion to 

transfer should be granted, Hyundai's 12(b)(6) motion to dismiss should be denied as moot to the 

extent it pertains to Palmer's remaining claims. 

CONCLUSION 

For the reasons provided above, Hyundai's Motion (#3) should be granted in part 

and denied in pait. Hyundai's 12(b)(3) motion to dismiss should be denied. Hyundai's 28 U.S.C. 

§ 1404(a) motion to transfer to the Central District of California should be granted. Hyundai's 

12(b )( 6) motion to dismiss should denied as moot except to the extent the motion pertains to 

Palmer's account stated claim, which Palmer now concedes it failed to state. Palmer's account 

stated claim should be dismissed without prejudice. 

SCHEDULING ORDER 

The Findings and Recommendation will be referred to a district judge. Objections, if 

any, are due fourteen (14) days from service of the Findings and Recommendation. Ifno 

objections are filed, then the Findings and Recommendation will go under advisement on that 

date. 

II 

II 

II 

II 

FINDINGS AND RECOMMENDATION PAGE-13 
If objections are filed, then a response is due fourteen (14) days after being served with a 

copy of the objections. When the response is due or filed, whichever date is earlier, the Findings 

and Recommendation will go under advisement. 

Dated this 26th day of February, 2016. ) - ~ 

/_./ IC ) r·· 

isl (JM/ . \--;- jv()c7 

Honorable Paul Papak 

United States Magistrate Judge 

FINDINGS AND RECOMMENDATION PAGE-14