IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

WILLOW FARMS, LLC, a 

Washington limited liability 

company, 

Plaintiff, 

v. 

AWCC WCW HOLDINGS, LLC, a 

Delaware limited liability 

company; AG LAND PROPERTY 

MANAGEMENT I, LLC, a Delaware 

limited liability company; 

and HA WILLOW CREEK CAPITAL 

LLC, 

Defendants. 

JOSEPH W. CARLISLE 

Zupancic Rathbone Law Group, P.C. 

4949 Meadows Road 

Suite 600 

Lake Oswego, OR 97035 

(503) 968-8200 

Attorneys for Plaintiff 

1 - OPINION AND ORDER 

2:l5-CV-Ol862-BR 

OPINION AND ORDER 

Case 2:15-cv-01862-BR Document 32 Filed 05/06/16 Page 1 of 29
JOHN C. ROTHERMICH 

Garvey Schubert Barer 

121 S.W. Morrison Street 

11~ Floor 

Portland, OR 97204 

(503) 228-3939 

Attorneys for Defendants 

BROWN, Judge. 

This matter comes before the Court on Defendants' Motion 

(#14) to Dismiss. For the reasons that follow, the Court GRANTS 

Defendants' Motion and DISMISSES this matter without prejudice. 

BACKGROUND 

The following facts are taken from Plaintiff Willow Farms, 

LLC's First Amended Complaint, and the parties' materials related 

to Defendants' Motion to Dismiss. 

Plaintiff is the fee-simple owner of real property located 

in Morrow County, Oregon. The property contains farm land "on 

which wind-power facilities have been placed." 

On December 30, 2003, Plaintiff and two other entities, 

Diamond Properties Investment Company and Cricket Flat 

Development Company (collectively referred to as Cullen by the 

parties), formed Willow Creek Windpower, LLC (WCW) for the 

purpose of "holding the title and interest as the lessor of a 

lease for [the] wind power facilities and the wind rights" 

located on the land owned by Plaintiff. Plaintiff held a 51% 

2 - OPINION AND ORDER 

Case 2:15-cv-01862-BR Document 32 Filed 05/06/16 Page 2 of 29
interest in WCW, and Cullen held a 49% interest. 

At some point the wind facility and wind rights were leased 

by WCW to nonparty Windcreek Energy, LLC (WCE) . 

On October 6, 2011, Defendant AWCC WCW Holdings, LLC, sought 

to acquire the "income stream" from the wind-power leases held by 

WCW. AWCC's acquisition involved several inter-related 

transactions: (1) AWCC purchased Cullen's 49% interest in WCW 

outright for $3,200,000; (2) Plaintiff and AWCC entered into an 

Amended and Restated Operating Agreement (AROA) for WCW, which 

designates AWCC and Plaintiff as WCW Members; and (3) rather than 

purchasing Plaintiff's 51% interest in WCW outright, AWCC and 

Plaintiff agreed to a loan that would give AWCC the right to 

receive the annual lease payments from WCE for wind facilities 

and wind rights through 2038. To effectuate the loan agreement 

on October 6, 2011, WCW entered into a loan agreement and 

promissory note in which AWCC's affiliate, Defendant Ag Land 

Property Management I, LLC, 1 loaned WCW $2,664,747.60 at an 

interest rate of 11.266% per annum. WCW, in turn, paid the 

$2,664,747.60 to Plaintiff. Pursuant to the terms of the 

promissory note, WCE makes its wind-right lease payments directly 

to Ag Land. 

The loan agreement and promissory note also provide in 

1 AWCC and Ag Land are affiliate companies owned by nonparty Hanna Armstrong. 

3 - OPINION AND ORDER 

Case 2:15-cv-01862-BR Document 32 Filed 05/06/16 Page 3 of 29
pertinent part: 

This Loan Agreement and Promissory Note (this 

"Agreement") is made and entered into as of this 

6'" day of October, 2011 (the ''Effective Date''), 

by and between Ag Land . ("Lender"), and 

[WCW], an Oregon limited liability company 

("Borrower"). Willow Farms, as it is 

defined below and referenced herein, consents to 

the terms and conditions of this Agreement. 

* * * 

Borrower may prepay the Loan Amount in full, but 

not in part, and only subject to the following 

requirements: (a) Willow Farms sells the Property 

and clears title in closing escrow to such a 

transaction; (b) Willow Farms causes Community 

Bank . . to deliver to an escrow closing agent 

. a request for full reconveyance, . a 

deed of full reconveyance by the trustee of the 

deed of trust . . , together with releases in 

full of all assignments of rents and all other 

security interests related to the underlying debt 

. ; and, (c) Willow Farms provides written 

instructions to such escrow to repay the Community 

Bank Loan in full and obtain and record deeds of 

full reconveyance and releases of the Community 

Bank Loan. 

* * * 

This Agreement, and the instruments and agreements 

referred to herein, constitute the entire 

agreement between Borrower and Lender with respect 

to the subject matter hereof. 

* * * 

This Agreement may be amended, modified or 

terminated only by a writing signed by the party 

against whom it is to be enforced. No act or 

course of dealing shall be deemed to constitute an 

amendment, modification or termination hereof. 

The written consent of Willow Farms shall not be 

required to bind the Parties to an amendment or 

modification of this Agreement. 

4 - OPINION AND ORDER 

Case 2:15-cv-01862-BR Document 32 Filed 05/06/16 Page 4 of 29
Nothing express or implied in this Agreement is 

intended to confer any rights or benefits on 

any Person other than Borrower and Lender, and 

their permitted successors and assigns. 

Deel. of John C. Rothermich, Ex. B at 1, 5, 20-21 (emphasis 

added). 

The AROA entered into by Plaintiff and AWCC on October 6, 

2011, provides in pertinent part: 

Willow Farms . . and AWCC . are the holders 

of the membership interests for (WCW] 

Willow Farms and AWCC are collectively referred to 

herein below as the "Members", and each 

individually as a "Member." 

* * * 

1.4 Purpose. (WCW] was formed and continues to 

exist for the purpose of holding all right, title 

and interest as Lessor under . . certain Option 

and Lease Agreements for wind power facilities. 

* * * 

3.7 Voting. On each matter requiring action by 

the Members, each Member shall be entitled to one 

vote. All decisions of the Company shall be 

approved upon the unanimous vote of the Members. 

* * * 

4.1 General 

(a) Right to Manage. Each Member shall have 

an equal right to participate in the day-to-day 

management of [WCW] . The Members shall delegate 

primary responsibility for particular business 

matters among themselves from time to time as they 

determine appropriate. The Member holding 

delegated responsibility as to any matter shall be 

the "Member Agent" of [WCW] for such matters and 

shall solely exercise the authorities given to 

that member for such purposes. 

5 - OPINION AND ORDER 

Case 2:15-cv-01862-BR Document 32 Filed 05/06/16 Page 5 of 29
* * * 

(b) Member Agent of [WCW] . The Member Agent 

shall be the exclusive agent of [WCW] for purposes 

of its business, and the act of the Member Agent 

. binds [WCW], provided all Members are aware 

and in agreement prior to such action by the 

Member Agent, or, unless the Member Agent has in 

fact no authority to act for [WCW] in the 

particular matter. 

(c) on behalf of [WCW], . sell or 

contract to sell any property for or of [WCW] 

other than the type of property bought and sold in 

the regular course of its business. 

* * * 

4.2 Restrictions. Without the unanimous consent 

of all Members, no Member shall, in the capacity 

as a Member, or Member Agent: 

(a) execute any contract or incur any 

obligation which may subject [WCW] to a current or 

long term liability in excess of $5,000.00 

annually; 

* * * 

d) except as otherwise provided in this 

Agreement . do any act detrimental to the best 

interests of [WCW] . 

4.5 Designated Member Agent. The designated 

Member Agent shall be AWCC. 

Rothermich Deel., Ex. A at 1, 5-7. 

In July 2015 Plaintiff notified AWCC' "of [Plaintiff's] 

2 Plaintiff alleges in its First Amended Complaint that it 

notified AWCC that it intended to prepay the loan made to WCW by 

Ag Land. The July 2015 notification, however, is not in the 

record, and the August 12, 2015, letter from AWCC states 

Plaintiff "submitted a request to Ag Land . . seeking Lender's 

approval that the Borrower may prepay [the] loan." Deel. of Marl 

Zoller, Ex. 6 at 1. Accordingly, it is not clear whether 

6 - OPINION AND ORDER 

Case 2:15-cv-01862-BR Document 32 Filed 05/06/16 Page 6 of 29
intent to prepay" the loan that Ag Land had provided to WCW. 

First Am. Compl. at ~ 31. 

On August 12, 2015, AWCC sent a letter to Plaintiff stating 

in pertinent part: 

You have submitted a request to Ag Land . 

("Lender"), presumably on behalf of Willow Farms 

LLC . . as a member of [WCW] (the "Borrower"), 

seeking Lender's approval that the Borrower may 

prepay [the loan Ag Land made to WCW] (the "WCW 

Loan") . 

* * * 

On behalf of . AWCC ., this letter is to 

notify Borrower and Willow Farms that AWCC . 

does not approve of the Borrower's submission of a 

request to Lender to prepay the WCW Loan under the 

Loan Agreement, and no such request is authorized. 

Deel. of Marl Zoller, Ex. 6 at 1. AWCC advised Plaintiff to 

contact Patrick Giardina with Hanna Armstrong to discuss anything 

"other than the prepayment of the WCW Loan that Lender or AWCC 

. can do to assist" Plaintiff in an effort to sell or to 

refinance the real property owned by Plaintiff. Id. 

On August 14, 2015, Plaintiff contacted Giardina via 

telephone and email regarding prepayment of Ag Land's loan to 

wcw. 

On August 17, 2015, Giardina sent a letter to Plaintiff in 

which he advised Plaintiff that AWCC as 49% owner and Managing 

Agent of WCW did not approve prepayment of the WCW Loan. 

Plaintiff submitted a request to prepay the loan to AWCC or to Ag 

Land. 

7 - OPINION AND ORDER 

Case 2:15-cv-01862-BR Document 32 Filed 05/06/16 Page 7 of 29
Giardina also advised Plaintiff that 

Willow Farms LLC ha[s] no right to prepay the WCW 

Loan; only the Borrower [WCW] can prepay the WCW 

Loan and cannot do so unless such an action is 

authorized by the Borrower's members pursuant to 

the [AROA]. [S]uch action has not been 

approved by [WCW member AWCC] . 

Deel. of Marl Zoller, Ex. 7 at 1. 

On August 26, 2015, Plaintiff sent a letter to AWCC and 

Giardina in which it asserted (1) due to AWCC's refusal to permit 

Plaintiff to prepay the WCW Loan, AWCC was in breach of the terms 

of the WCW Operating Agreement and (2) Plaintiff "intend[ed] to 

proceed with the prepayment of the [WCW] Loan, and is prepared to 

meet the conditions of prepayment under the Promissory Note." 

Plaintiff stated 

AWCC's continued interference with prepayment of 

the [WCW] Loan will also severely limit 

[Plaintiff']s ability to sell interests in 

[Plaintiff]. In fact, [Plaintiff] has already 

received a substantial offer for a minority 

interest in [Plaintiff], but it cannot close on 

that offer until the Loan is paid in full. 

Rothermich Deel., Ex. Cat 3 (emphasis added). 

On September 2, 2015, AWCC sent a letter to Plaintiff in 

which it disagreed with Plaintiff's assertion that AWCC's refusal 

to permit prepayment of the WCW Loan was a breach of the AROA. 

AWCC asserted, among other things, that the decision whether to 

permit prepayment of the WCW Loan was solely within the scope of 

AWCC's authority as the Member Agent of WCW, § 4.2 of the AROA 

requires the "unanimous consent of all Members" of WCW to 

8 - OPINION AND ORDER 

Case 2:15-cv-01862-BR Document 32 Filed 05/06/16 Page 8 of 29
"execute any contract or incur any obligation which may subject 

[WCW] to a current or long term liability in excess of $5,000 

annually," and the prepayment penalty on the WCW Loan would be 

"well in excess of $5,000." AWCC also noted "[u]nanimous consent 

[of all Members of WCW] is also required under Section 4.2(d), 

which prohibits Members from entering into any agreement 'as a 

result of which any person shall become interested with the 

member of the company."' Carlisle Deel., Ex. 2 at 1-2. 

On September 10, 2015, Plaintiff sent a letter to AWCC in 

which it again "invok[ed] [WCW's] right to prepay the . loan" 

and to request AWCC to "reconsider its position with respect to 

prepayment." Carlisle Deel., Ex. 4 at 1. Plaintiff asserted, 

among other things, that it intended to make "all payments 

associated with prepayment of the Loan," and, therefore, WCW 

would not "be subjected to liability in excess of $5,000." Id. 

at 4. Plaintiff also asserted unanimous consent of WCW's members 

is not required under§ 4.2(d) of the AROA for Plaintiff to 

prepay the Loan because that section does not grant AWCC the 

right to control Plaintiff. According to Plaintiff, therefore, 

it "does not need AWCC's consent to conduct its business and 

operations and is entitled to use its 51% share of lease payments 

in any manner it may choose following prepayment of the Loan." 

Id. at 2. Finally, Plaintiff stated it "intends to sell the 

[real] Property and prepay the Loan." Id. at 5. 

9 - OPINION AND ORDER 

Case 2:15-cv-01862-BR Document 32 Filed 05/06/16 Page 9 of 29
On September 17, 2015, AWCC sent Plaintiff a letter in which 

it again disagreed with Plaintiff's position as to prepayment of 

the WCW Loan. AWCC noted, among other things, that § 4.l(b) of 

the AROA states the Member Agent "shall be the exclusive agent of 

the company for the purposes of its business," which includes 

"the ability to control all bank accounts" of WCW. AWCC also 

asserted Plaintiff "missed the point" of AWCC's argument as to 

the applicability of§ 4.2(a) of the AROA because even though 

Plaintiff asserts it will pay the prepayment penalty of the WCW 

Loan, the prepayment penalty is in excess of $5,000, and, 

therefore, the prepayment by WCW (even if the funds were actually 

paid by Plaintiff) "triggers [the] requirement of 'unanimous 

consent of all Members.'" Carlisle Deel., Ex. 5 at 2. 

The record does not reflect any further correspondence 

between Plaintiff and AWCC that sets out their positions as to 

the right or ability of Plaintiff to prepay the WCW Loan. 

On September 18, 2015, Ag Land assigned the WCW Promissory 

Note to Defendant HA Willow Creek Capital LLC (WCC) as part of a 

corporate restructuring. On October 26, 2015, WCC advised 

Plaintiff and WCW that Ag Land had assigned the WCW Promissory 

Note to wee. 

On October 2, 2015, Plaintiff filed a Declaratory Judgment 

action in this Court against AWCC and Ag Land in which it sought 

declarations and injunctive relief related to Plaintiff's right 

10 - OPINION AND ORDER 

Case 2:15-cv-01862-BR Document 32 Filed 05/06/16 Page 10 of 29
to prepay the WCW Loan. The matter was assigned to Magistrate 

Judge Patricia Sullivan. 

On October 27, 2015, Plaintiff asked wee if it would allow 

Plaintiff to prepay the WCW Promissory Note. WCC advised 

Plaintiff that it did not authorize prepayment of the WCW 

Promissory Note for the reasons stated by AWCC in its 

correspondence with Plaintiff. 

On November 11, 2015, Plaintiff filed a First Amended 

Complaint to add WCC as a Defendant. Plaintiff seeks 

declarations that (1) it has the right to prepay the WCW Loan on 

"a sale of the Property," (2) AWCC does not have the exclusive 

right to prepay the WCW Loan, (3) AWCC's consent is not required 

for Plaintiff to prepay the WCW Loan, (4) AWCC is in breach of 

its fiduciary duty to Plaintiff and WCW, (5) Ag Land and/or WCC 

cannot refuse to provide the total prepayment amount for the WCW 

Loan, and (6) Ag Land and/or WCC cannot refuse to accept 

prepayment of the Loan from Plaintiff. Plaintiff also seeks a 

permanent injunction enjoining (1) Ag Land and/or WCC from 

refusing to accept Plaintiff's prepayment of the WCW Loan; 

(2) AWCC from "putting the interests of Ag Land, [WCC,] and 

Hannon Armstrong before the interests of [WCW] and [Plaintiff], 

in breach of its fiduciary duties"; and (3) AWCC from interfering 

with Plaintiff's efforts to prepay the WCW Loan. 

On November 25, 2015, Defendants filed a Motion to Dismiss. 

11 - OPINION AND ORDER 

Case 2:15-cv-01862-BR Document 32 Filed 05/06/16 Page 11 of 29
The matter was transferred to this Court on February 8, 2016. 

The Court took the matter under advisement on February 22, 2016. 

STANDARDS 

I. Dismissal for Lack of Jurisdiction Pursuant to Rule 12(b) (l) 

Plaintiff "bears the burden of establishing subject matter 

jurisdiction by a preponderance of the evidence.n United States 

ex rel. Mateski v. Raytheon Co., 816 F.3d 565, 569 (9th Cir. 

2016) (quotation omitted). See also Ass'n of Am. Med. Coll. v. 

United States, 217 F.3d 770 (9th Cir. 2000). 

When deciding a motion to dismiss for lack of subject-matter 

jurisdiction under Rule 12 (b) (1), the court may consider 

affidavits and other evidence supporting or attacking the 

complaint's jurisdictional allegations. Rivas v. Napolitano, 714 

F.3d 1108, 1114 n.1 (9th Cir. 2013). The court may permit 

discovery to determine whether it has jurisdiction. Laub v. 

United States Dep't of Interior, 342 F.3d 1080, 1093 (9th Cir. 

2003). When a defendant's motion to dismiss for lack of 

jurisdiction "is based on written materials rather than an 

evidentiary hearing, the plaintiff need only make a prima facie 

showing of jurisdictional facts to withstand the motion to 

dismiss." Mavrix Photo, Inc. v. Brand Tech., Inc., 647 F.3d 

1218, 1223 (9th Cir. 2011) (citation omitted). 

12 - OPINION AND ORDER 

Case 2:15-cv-01862-BR Document 32 Filed 05/06/16 Page 12 of 29
II. Dismissal for Failure to State a Claim Pursuant to Rule 

12 (b) (6) 

To survive a motion to dismiss, a complaint must 

contain sufficient factual matter, accepted as 

true, to "state a claim to relief that is 

plausible on its face." [Bell Atlantic v. 

Twombly, 550 U.S. 554,] 570, 127 S. Ct. 1955. A 

claim has facial plausibility when the plaintiff 

pleads factual content that allows the court to 

draw the reasonable inference that the defendant 

is liable for the misconduct alleged. Id. at 556. 

The plausibility standard is not akin to a 

"probability requirement," but it asks for more 

than a sheer possibility that a defendant has 

acted unlawfully. Ibid. Where a complaint pleads 

facts that are "merely consistent with" a 

defendant's liability, it "stops short of the line 

between possibility and plausibility of 

'entitlement to relief.'" Id. at 557, 127 S. Ct. 

1955 (brackets omitted). 

Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). See also Bell 

Atlantic, 550 U.S. at 555-56. The court must accept as true the 

allegations in the complaint and construe them in favor of the 

plaintiff. Din v. Kerry, 718 F.3d 856, 859 (9th Cir. 2013). 

The pleading standard under Federal Rule of Civil Procedure 

8 "does not require 'detailed factual allegations,' but it 

demands more than an unadorned, the-defendant-unlawfully-harmedme accusation." Iqbal, 556 U.S. at 678 (quoting Twombly, 550 

U.S. at 555). See also Fed. R. Civ. P. 8(a) (2). "A pleading 

that offers 'labels and conclusions' or 'a formulaic recitation 

of the elements of a cause of action will not do.'" Id. (citing 

Twombly, 550 U.S. at 555). A complaint also does not suffice if 

it tenders "naked assertion[s]" devoid of "further factual 

13 - OPINION AND ORDER 

Case 2:15-cv-01862-BR Document 32 Filed 05/06/16 Page 13 of 29
enhancement." Id. at 557. 

"In ruling on a 12 (b) (6) motion, a court may generally 

consider only allegations contained in the pleadings, exhibits 

attached to the complaint, and matters properly subject to 

judicial notice." Akhtar v. Mesa, 698 F. 3d 1202, 1212 (9th Cir. 

2012) (citation omitted). A court, however, "may consider a 

writing referenced in a complaint but not explicitly incorporated 

therein if the complaint relies on the document and its 

authenticity is unquestioned." Swartz v. KPMG LLP, 476 F.3d 756, 

763 (9th Cir. 2007) (citation omitted). 

DISCUSSION 

Defendants move to dismiss this matter on the grounds that 

the Court lacks subject-matter jurisdiction because the dispute 

is not ripe for adjudication or, in the alternative, that the 

"plain, unambiguous terms of the relevant contracts show the 

parties' intent that prepayment of the loan would require the 

consent of [AWCC] ." 

I. Plaintiff's claims are not ripe for adjudication. 

As noted, Defendants assert this Court lacks subject-matter 

jurisdiction because Plaintiff's claims are not ripe for 

adjudication. Specifically, Defendants assert this matter is not 

ripe because it involves an "uncertain or contingent future event 

that may not occur" because Plaintiff cannot establish that it 

14 - OPINION AND ORDER 

Case 2:15-cv-01862-BR Document 32 Filed 05/06/16 Page 14 of 29
has fulfilled a condition precedent to the prepayment of the 

loan: the sale of all of Plaintiff's real property. Defendants 

also assert even if Plaintiff satisfied the condition precedent 

by selling its real property, Plaintiff does not have an 

unfettered right to prepay the WCW Loan because Plaintiff is not 

the "borrower" under the terms of the loan. According to 

Defendants, therefore, this Court lacks jurisdiction because 

there is not an actual case or controversy before the Court. 

Plaintiff, in turn, asserts there is an actual case or 

controversy before the Court. Specifically, Plaintiff disputes 

Defendants' assertion that the provisions of the WCW Loan and the 

AROA permit only WCW to prepay the WCW Loan and/or that AWCC must 

give permission for Plaintiff to prepay the WCW Loan. With 

respect to Defendants' assertion that Plaintiff must sell all of 

its real estate before WCW may prepay the WCW Loan, Plaintiff 

asserts it has complied with that provision because it has 

provided Defendants with notice of its intent to sell the real 

property and "to comply with the other prepayment conditions." 

Plaintiff asserts it should not have to sell its real property 

first and then test whether Defendants will allow Plaintiff to 

prepay the WCW Loan in order to obtain declaratory relief from 

the Court. 

A. Standards 

The Declaratory Judgment Act provides: "In a case of 

15 - OPINION AND ORDER 

Case 2:15-cv-01862-BR Document 32 Filed 05/06/16 Page 15 of 29
actual controversy within its jurisdiction . any court of the 

United States . . may declare the rights and other legal 

relations of any interested party seeking such declaration, 

whether or not further relief is or could be sought." 28 U.S.C. 

§ 220l(a). The phrase "a case of actual controversy" refers to 

the types of "cases" and "controversies" justiciable under 

Article III of the United States Constitution. Medimmune, Inc. 

v. Genentech, Inc., 549 U.S. 118, 127 (2007). "Absent a true 

case or controversy, a complaint solely for declaratory relief 

under 28 U.S.C. § 2201 will fail for lack of jurisdiction under 

Rule 12(b) (l)." Rhoades v. Avon Prods., Inc., 504 F.3d 1151, 

1157. (9th Cir. 2007). 

In Medimmune the Supreme Court summarized the 

difference "between those declaratory-judgment actions that 

satisfy the case-or-controversy requirement and those that do 

not" as follows: "Basically, the question in each case is 

whether the facts alleged, under all the circumstances, show that 

there is a substantial controversy, between parties having 

adverse legal interests, of sufficient immediacy and reality to 

warrant the issuance of a declaratory judgment." Id. at 127. 

The Court also described a dispute that satisfies the case-orcontroversy requirement as one that is "definite and concrete, 

touching the legal relations of parties having adverse legal 

interests," to the degree that the dispute is "'real and 

16 - OPINION AND ORDER 

Case 2:15-cv-01862-BR Document 32 Filed 05/06/16 Page 16 of 29
substantial'" and "admi[ts] of specific relief through a decree 

of a conclusive character, as distinguished from an opinion 

advising what the law would be upon a hypothetical state of 

facts." Id. (quotation omitted) . 

"The . doctrine of ripeness is a means by which 

federal courts may dispose of matters that are premature for 

review because the plaintiff's purported injury is too 

speculative and may never occur." Chadler v. State Farm Mut. 

Auto. Ins. Co., 598 F.3d 1115, 1122 (9th Cir. 2010). " ' [ T] he 

question of ripeness turns on the fitness of the issues for 

judicial decision and the hardship to the parties of withholding 

court consideration.'" Id. (quoting Pac. Gas & Elec. Co. v. 

State Energy Res. Conservation & Dev. Comm'n, 461 U.S. 190, 201 

(1983)). "The 'central concern [of the ripeness inquiry] is 

whether the case involves uncertain or contingent future events 

that may not occur as anticipated, or indeed may not occur at 

all."' Id. at 1122-23 (quoting Richardson v. City and County of 

Honolulu, 124 F. 3d 1150, 1160 (9th Cir. 1997)) . 

B. Sale of Plaintiff's real property is a condition 

precedent to prepayment of the WCW Loan. 

As noted, the WCW Loan provides in relevant part: 

Borrower may prepay the Loan Amount in full, but 

not in part, and only subject to the following 

requirements: (a) Willow Farms sells the Property 

and clears title in closing escrow to such a 

transaction; (b) Willow Farms causes Community 

Bank . . to deliver to an escrow closing agent 

17 - OPINION AND ORDER 

Case 2:15-cv-01862-BR Document 32 Filed 05/06/16 Page 17 of 29
. a request for full reconveyance, . a 

deed of full reconveyance by the trustee of the 

deed of trust . . , together with releases in 

full of all assignments of rents and all other 

security interests related to the underlying debt 

.; and, (c) Willow Farms provides written 

instructions to such escrow to repay the Community 

Bank Loan in full and obtain and record deeds of 

full reconveyance and releases of the Community 

Bank Loan. 

Rothermich Deel., Ex. Bat 5 (emphasis added). The WCW Loan 

defines "the Property" as the entirety of the real property owned 

by Plaintiff. The prepayment provision of the WCW Loan is not 

ambiguous or unclear. Each of its terms are defined in the WCW 

Loan. The phrase permitting the Borrower to prepay the "Loan 

Amount . only subject to the following requirements" 

unambiguously permits the Borrower to prepay the WCW Loan only 

after Plaintiff sells its real property and clears the title to 

the real property in escrow. Plaintiff has not alleged and the 

record does not reflect either of those things has occurred. In 

fact, Plaintiff alleges in its First Amended Complaint that it 

"intends to effect a sale of the Property whereby title will be 

cleared, but it has been unable to properly market the Property." 

It is unclear from that allegation whether Plaintiff has received 

an actual offer on the real property or whether Plaintiff merely 

intends to sell the real property but has not yet received an 

offer because it "has been unable to market" the real property. 

Similarly, in its Response to Defendants' Motion to Dismiss 

Plaintiff alleges it "has consistently stated its intent to sell 

18 - OPINION AND ORDER 

Case 2:15-cv-01862-BR Document 32 Filed 05/06/16 Page 18 of 29
the Property," but Defendants have refused to allow it to repay 

the WCW Loan. In Plaintiff's August 26, 2015, letter to AWCC 

Plaintiff stated it "has . . received a substantial offer for a 

minority interest in [Plaintiff] but it cannot close on that 

offer until the [WCW] Loan is paid in full." Carlisle Deel., 

Ex. 1 at 3 (emphasis added). At best, the August 26, 2015, 

letter indicates Plaintiff has an offer for a "minority interest" 

in Plaintiff's real property. 3 There is not any indication in 

Plaintiff's First Amended Complaint or in the record before the 

Court that Plaintiff has any offer, much less a completed sale, 

for all of its real property as required for prepayment of the 

WCW Loan. In fact, the record is devoid of evidence of 

Plaintiff's efforts to sell its real property, of any potential 

buyers of the real property, of a time-frame for a sale of the 

real property, or of a refusal by a potEmtial buyer to purchase 

the real property unless the WCW Loan is prepaid. In addition, 

there is not any indication that Defendants would refuse to 

permit prepayment of the WCW Loan by the Borrower if Plaintiff 

sold its real property, cleared title in escrow, and met the 

other requirements of the prepayment paragraph of the WCW Loan. 

The mere possibility of a future refusal by Defendants to comply 

with the prepayment provision of the WCW Loan is insufficient to 

3 It is not clear whether the offer Plaintiff received was 

for a minority interest in Plaintiff itself or for a minority 

interest in Plaintiff's real property. 

19 - OPINION AND ORDER 

Case 2:15-cv-01862-BR Document 32 Filed 05/06/16 Page 19 of 29
establish an actual case or controversy. 

C. Plaintiff is not the Borrower in the WCW Loan. 

As noted, Defendants also assert there is not an actual 

case or controversy because Plaintiff is not the Borrower under 

the WCW Loan, and, therefore, Plaintiff does not have any right 

or authority to prepay the WCW Loan. Specifically, Defendants 

point out that the prepayment provision of the WCW Loan specifies 

"Borrower may prepay the Loan Amount in full," and "Borrower" is 

defined in the first paragraph as "Willow Creek Windpower LLC." 

Rothermich Deel., Ex. Bat 1. The WCW Loan distinguishes 

Plaintiff from the borrower throughout the WCW Loan beginning in 

the opening paragraph: "The initial members of Borrower 

were [Plaintiff] and . . Cullen." Id. In addition, 

• Paragraph E of the Recitals states "[t]he Loan is 

intended by the Parties to be a limited recourse loan 

secured by the payment of Rent received by the Borrower 

. and by a guaranty from Willow Farms." Rothermich 

Deel., Ex. Bat 1. 

• Paragraph 4(f) states "Lender shall have no recourse 

against the Borrower other than as provided in the Loan 

Documents," and "[Plaintiff] shall guaranty repayment 

to the Lender." Id. at 7. 

• Paragraph 7(b) contrasts obligations of "the Borrower" 

under the wind-power lease with those of Plaintiff. 

20 - OPINION AND ORDER 

Case 2:15-cv-01862-BR Document 32 Filed 05/06/16 Page 20 of 29
Id. at 9. 

• Paragraph 12(g) sets out a number of things that 

"Borrower and [Plaintiff] shall not do without prior 

consent of the Lender," including amend the "operating 

agreements for Borrower or [Plaintiff]," fail to pay 

taxes and fees for "either Borrower or [Plaintiff]," 

and "change the existing ownership or membership in 

either Borrower or [Plaintiff]." Id. at 13-14. 

• Paragraph 12(j) represents "[Plaintiff] owns one 

hundred percent (100%) of the fee title to the Property 

[and Borrower] owns one hundred percent (100%) of 

the wind rights for the Property." Id. at 14. 

• Paragraph 14 sets out what occurs if "Borrower or 

[Plaintiff] fail[] to perform or observe 

any covenant, condition or agreement contained" in the 

WCW Loan. Id. at 17. 

• Paragraph 17 reiterates Plaintiff is not a party to the 

WCW Loan and states "[t]his Agreement shall be binding 

upon . . the Parties and [Plaintiff]." Id. at 20. 

• The signature page reflects WCW is the Borrower and 

includes the signatures of Plaintiff's representative 

and the representative of AWCC as members of WCW. 

Accordingly, the definition of Borrower in the WCW Loan is 

not ambiguous: The Borrower is WCW and not Plaintiff. 

21 - OPINION AND ORDER 

Case 2:15-cv-01862-BR Document 32 Filed 05/06/16 Page 21 of 29
Plaintiff alleges in the First Amended Complaint that 

even though "the 'borrower' was defined as [WCW] in the 

Promissory Note, all loan proceeds were paid directly to 

[Plaintiff] making [Plaintiff] the true borrower. [WCW] and Ag 

Land also treated [Plaintiff] as the borrower." First Am Compl. 

at ~ 22. To the extent that Plaintiff asserts the parties' 

course of dealing modified the definition of borrower in the WCW 

Loan, Plaintiff's argument is unpersuasive. Paragraph 23 of the 

WCW Loan provides: "Nothing express or implied in this Agreement 

is intended to confer any rights or benefits on any Person other 

than Borrower or Lender and their permitted successors and 

assigns." Rothermich Deel., Ex Bat 21. None of the provisions 

of the WCW Loan, therefore, were intended to confer any rights or 

benefits on Plaintiff except as specifically set out in the WCW 

Loan, and the Loan provisions did not include the right to prepay 

the Loan. In addition, the WCW Loan provides it "constitute[s] 

the entire agreement between Borrower and Lender." Rothermich 

Deel., Ex Bat 20. Finally, the WCW Loan does not permit 

amendment or modification by course of dealing: 

This Agreement may be amended, modified or 

terminated only by a writing signed by the party 

against whom it is to be enforced. No act or 

course of dealing shall be deemed to constitute an 

amendment, modification or termination hereof. 

The written consent of Willow Farms shall not be 

required to bind the Parties to an amendment or 

modification of this Agreement. 

Rothermich Deel. Ex. B at 20. Thus, even if the parties "treated 

22 - OPINION AND ORDER 

Case 2:15-cv-01862-BR Document 32 Filed 05/06/16 Page 22 of 29
[Plaintiff] as the borrower," the WCW Loan defines Borrower as 

WCW only and the parties' course of dealing cannot modify the 

terms of the WCW Loan. 

On this record the Court concludes Plaintiff has not 

established it is the Borrower under the WCW Loan or that it has 

the authority or right to prepay the WCW Loan as the Borrower. 

D. Plaintiff does not have unilateral authority to require 

WCW to prepay the WCW Loan. 

Finally, Defendants also assert Plaintiff does not have 

any unilateral authority to require WCW to prepay the WCW Loan. 

Specifically, Defendants contend AWCC's consent is required under 

the terms of the AROA for WCW to prepay the WCW Loan, AWCC has 

not consented to prepayment of the WCW Loan because the 

conditions precedent of prepayment have not been met, and AWCC 

does not have any obligation to consent to prepayment of the WCW 

Loan. 

Plaintiff, on the other hand, asserts AWCC and 

Plaintiff have an equal right to manage WCW under the AROA, and, 

therefore, Plaintiff "has the right to take action on behalf of 

[WCW] to the extent not specifically delegated to AWCC." 

Plaintiff also asserts the restrictions set out in § 4.2 of the 

AROA do not prohibit Plaintiff from prepaying the WCW Loan on 

behalf of WCW. 

1. Relevant provisions of the AROA 

Defendants rely on several provisions of the AROA 

23 - OPINION AND ORDER 

Case 2:15-cv-01862-BR Document 32 Filed 05/06/16 Page 23 of 29
to support their assertion that Plaintiff does not have 

unilateral authority to require WCW to prepay the WCW Loan: 

3.7 Voting. On each matter requiring action by 

the Members, each Member shall be entitled to one 

vote. All decisions of [WCW] shall be approved 

upon the unanimous vote of the Members. 

* * * 

4.1 General. 

(a) Right to Manage. Each Member shall have 

an equal right to participate in the day-to-day 

management of [WCW] . The Members shall delegate 

primary responsibility for particular business 

matters among themselves from time to time as they 

determine appropriate. The Member holding 

delegated responsibility as to any matter shall be 

the "Member Agent" of [WCW] for such matters and 

shall solely exercise the authorities given to 

that member for such purposes. 

* * * 

(b) Member Agent of Company. The Member 

Agent shall be the exclusive agent of [WCW] for 

purposes of its business, and the act of the 

Member Agent, including the execution in [WCW] 

name of any instrument for apparently carrying on 

the business of [WCW] in the usual way, binds 

[WCW], provided all Members are aware and in 

agreement prior to such action by the Member 

Agent, or, unless the Member Agent has in fact no 

authority to act for [WCW] in the particular 

matter, and the person with whom such Member is 

dealing has knowledge of the fact that such member 

has no such authority. The Member Agent shall, 

among other duties, responsibilities and 

authorities, have the ability to control all bank 

accounts now opened and maintained now or in the 

future by [WCW] for Company business. 

* * * 

4.2 Restrictions. Without the unanimous consent 

of all Members, no Member shall, in the capacity 

24 - OPINION AND ORDER 

Case 2:15-cv-01862-BR Document 32 Filed 05/06/16 Page 24 of 29
as a Member, or Member Agent: 

(a) execute any contract or incur any 

obligation which may subject [WCW] to a current or 

long term liability in excess of $5,000.00 

annually; 

* * * 

(d) . do any act detrimental to the best 

interests of [WCW] . 

* * * 

4.5 Designated Member Aaent. The designated 

Member Agent shall be AWCC. 

Rothermich Deel., Ex. A at 4-6 (emphasis added). 

2. Analysis 

Defendants point out that under§ 3.1 of the AROA 

all decisions of [WCW] are required to be approved by unanimous 

vote of the Members (Plaintiff and AWCC). It is undisputed that 

prepayment of the WCW Loan has not been approved by unanimous 

vote of Plaintiff and AWCC. In addition, § 4.2 requires 

unanimous consent of all Members of WCW to cause WCW "to incur 

any obligation which may subject [WCW] to a current or long term 

liability in excess of $5,000.00 annually." It is also 

undisputed that the prepayment penalty for the WCW Loan would be 

approximately $72,000. The prepayment penalty, therefore, would 

cause WCW to incur an obligation of more than $5,000 without 

unanimous consent of the Members in violation of§ 4.2(a) of the 

AROA. Plaintiff, nevertheless, asserts prepayment would not 

25 - OPINION AND ORDER 

Case 2:15-cv-01862-BR Document 32 Filed 05/06/16 Page 25 of 29
subject WCW to any obligation because Plaintiff intends to prepay 

the WCW Loan (and, presumably, the penalty) . The WCW Loan, 

however, specifically provides "Borrower . . shall pay to 

Lender . . a prepayment penalty" when the conditions precedent 

to prepayment are met. Rothermich Deel., Ex A at 5. As the 

Court has previously concluded, WCW is the borrower in the WCW 

Loan, and, accordingly, prepayment of the WCW Loan would subject 

WCW to a liability in excess of $5,000 even if Plaintiff intended 

to cover the liability for WCW. Thus, the unanimous consent of 

Plaintiff and AWCC would be required for WCW to prepay the WCW 

Loan. The Court does not find any provision in the AROA that 

permits Plaintiff to act unilaterally to cause WCW to prepay the 

WCW Loan or to mandate that WCW prepay the WCW Loan. 

Defendants also note§ 4.5 of the AROA designates 

AWCC as the Member Agent for WCW. Section 4.l(b) provides the 

Member Agent "shall be the exclusive agent of [WCW] for the 

purposes of its business, and the act[s] of the Member Agent 

. bind [WCW]" provided certain conditions are met that 

undisputedly have been met in this case. Plaintiff, however, 

notes WCW' s "business" as set out in the AROA is only "holding 

all right, title and interest as Lessor . for [the] wind 

power facilities" located on Plaintiff's real property. 

Rothermich Deel., Ex A at 1. According to Plaintiff, therefore, 

the WCW Loan is not "for the purposes of [WCW's] business" and 

26 - OPINION AND ORDER 

Case 2:15-cv-01862-BR Document 32 Filed 05/06/16 Page 26 of 29
§ 4.l(b) does not apply. The record, however, reflects Ag Land 

and WCW entered into the WCW Loan to effect the purchase of WCW 

by AWCC. As noted, AWCC and Plaintiff agreed to the WCW Loan, 

which gave AWCC the right to receive the annual wind facilities 

and wind-rights lease payments made by WCE through 2038 in return 

for loaning WCW $2.6 million rather than AWCC purchasing 

Plaintiff's interest in WCW outright. The WCW Loan, therefore, 

was entered into "for the purpose of" WCW's business. Thus, 

§ 4.l(b) of the AROA applies; AWCC is the Member Agent of WCW; 

and, as a result, AWCC is the exclusive agent of WCW for purposes 

of its business, including prepayment of the WCW Loan. 

Finally, Plaintiff asserts AWCC's refusal to consent to 

prepayment of the WCW Loan is a violation of its fiduciary duties 

under the AROA and/or Oregon law. Specifically, Plaintiff 

asserts all Members of WCW are prohibited under § 4.2(d) of the 

AROA from "do[ing] any act detrimental to the best interests of 

[WCW]," and, according to Plaintiff, refusing to prepay the WCW 

Loan is detrimental to the best interests of WCW because 

prepayment would "remov[e] a significant financial liability of 

[WCW] ." Plaintiff asserts AWCC is "plac[ing] its interests and 

those of its affiliate [Ag Land] ahead of the interests of WCW" 

by refusing to permit prepayment of the WCW Loan. Plaintiff, 

however, does not point to any provision in the AROA or Oregon 

law that establishes it is a violation of AWCC's fiduciary duty 

27 - OPINION AND ORDER 

Case 2:15-cv-01862-BR Document 32 Filed 05/06/16 Page 27 of 29
to refuse to waive the conditions precedent for prepayment, 

particularly the conditions that require Plaintiff to "sell[] the 

[real] Property and clear[] title in closing escrow to such a 

transaction." Rothermich Deel., Ex. Bat 5. 

If Plaintiff sold, closed on, and cleared title to its 

real property and AWCC continued to refuse to agree to prepayment 

of the WCW Loan, this matter would present an actual case or 

controversy. Because, however, Plaintiff has failed to establish 

that it has met the conditions precedent to prepayment and there 

is not any provision in the AROA or the WCW Loan that requires 

AWCC to agree to prepayment of the WCW Loan without completion of 

the conditions precedent, the Court concludes this matter does 

not present an actual case or controversy. The Court, therefore, 

concludes it lacks jurisdiction. 

II. In the alternative, Plaintiff fails to state a claim. 

In the alternative, even if the Court has jurisdiction, for 

the reasons set out above the Court concludes Plaintiff fails to 

state a claim for declaratory or injunctive relief. In brief, 

Plaintiff fails to establish that it has satisfied the conditions 

precedent to prepayment of the WCW Loan, Plaintiff has not 

established it is the Borrower with any right to prepay the WCW 

Loan, and Plaintiff has failed to establish it has any right to 

mandate that AWCC agree to permit WCW to prepay the WCW Loan. 

Accordingly, the Court grants Defendants' Motion to Dismiss 

28 - OPINION AND ORDER 

Case 2:15-cv-01862-BR Document 32 Filed 05/06/16 Page 28 of 29
and dismisses this matter without prejudice. 

CONCLUSION 

For these reasons, the Court GRANTS Defendants' Motion (#14) 

to Dismiss and DISMISSES this matter without prejudice. 

IT IS SO ORDERED. 

DATED this 6th day of May, 2016. 

ANNA J. BROWN 

United States District Judge 

29 - OPINION AND ORDER 

Case 2:15-cv-01862-BR Document 32 Filed 05/06/16 Page 29 of 29