IN THE UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

TANA SPENCER, on behalf of 3:16-cv-00093-BR

herself and others similarly

situated, OPINION AND ORDER

Plaintiff,

v.

MIDLAND FUNDING LLC aka 

MIDLAND FUNDING NCC-2 CORP. and

GORDON AYLWORTH & TAMI P.C.,

Defendants.

BRET A. KNEWTSON

Attorney at Law

3000 N.W. Stucki Place

Suite 230 M

Hillsboro, OR 97124

(503) 846-1160 

MARK G. PASSANNANTE

Broer & Passannante, PS

1001 S.W. 5th Avenue

Suite 1220

Portland, OR 97204

(503) 294-0910

Attorneys for Plaintiff

1 - OPINION AND ORDER

Case 3:16-cv-00093-BR Document 40 Filed 10/21/16 Page 1 of 20
DAVID J. ELKANICH

Holland & Knight, LLP

2300 US Bancorp Tower

111 S.W. Fifth Avenue

Portland, OR 97204

(503) 243-2300

Attorneys for Defendant Midland Funding LLC

PETER D. EIDENBERG

Keating Jones Hughes, P.C.

One S.W. Columbia, Suite 800

Portland, OR 97258-2095

(503) 222-9955 

Attorneys for Defendant Gordon Aylworth & Tami P.C.

BROWN, Judge.

This matter comes before the Court on the Motion (#10) to

Compel Arbitration, Stay Case and Strike Class Allegations filed

by Defendant Midland Funding LLC and the Motion (#14) to Compel

Arbitration, Strike Class Allegations, and Dismiss the Complaint

filed by Defendant Gordon Aylworth & Tami P.C.

For the following reasons the Court GRANTS in part and

DENIES in part Defendants’ Motions (#10,#14), DENIES as moot

Defendant Gordon’s Motion to Strike Exhibit 5 of Plaintiff’s

Response filed as part of Gordon's Reply (#30) in Support of

Motion to Compel Arbitration, and DENIES as moot Defendant

Gordon’s Motion to Strike Document 32-1 of Plaintiff’s

Supplemental Response filed as part of Gordon’s Sur-Reply (#33)

in Support of Motion to Compel Arbitration.

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Case 3:16-cv-00093-BR Document 40 Filed 10/21/16 Page 2 of 20
BACKGROUND

The following facts are taken from Plaintiff Tara Spencer's

Complaint and the parties' materials filed in connection with the

Motions and are undisputed unless otherwise indicated.

In April 2008 Plaintiff obtained a credit card issued by

Citibank NA that could only be used at Home Depot stores. 

Plaintiff used the credit card to purchase items from Home Depot

to remodel or to improve her home. After November 2008 Plaintiff

did not make any further purchases, but she did not close the

account.1 Plaintiff subsequently defaulted on the account. At

some point Citibank “charged off” Plaintiff’s account. In March

2014 Midland obtained Plaintiff’s account from Citibank. 

Midland hired Defendant Gordon to collect the debt Plaintiff

owed. In January 2015 Gordon sent a demand letter to Plaintiff

regarding payment of the debt. When Plaintiff did not pay the

debt as demanded, Midland instructed Gordon to file a collection

action against her. 

On March 13, 2015, Gordon filed a complaint on behalf of

Midland in state court against Plaintiff in which Midland alleged

Plaintiff breached the contract by failing to pay her debt. In

her answer to the complaint Plaintiff admitted she obtained,

1 The Card Agreement for the credit card provides it is binding

unless the account is closed within 30 days after receiving the card

and the card has not yet been used. It is undisputed these provisions

do not apply here.

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Case 3:16-cv-00093-BR Document 40 Filed 10/21/16 Page 3 of 20
used, and failed to pay for the charges incurred on the charge

card. 

In November 2015 Midland filed a motion for summary judgment

asserting it was entitled to judgment as a matter of law based on

Plaintiff’s factual concessions. Plaintiff, however, filed a

cross-motion for summary judgment and asserted she was entitled

to summary judgment on the grounds that Midland’s action was

barred by the statute of limitations, Midland had failed to

register as a collection agency, and Midland had failed to offer

any admissible evidence that it owned the underlying debt. 

 On January 20, 2016, Plaintiff filed a class-action 

Complaint in this Court against Midland and Gordon Aylworth 

& Tami P.C. alleging violations of the Fair Debt Collection

Practices Act (FDCPA), 15 U.S.C. § 1692, et seq., on behalf of

herself and others similarly situated. Plaintiff alleges

Defendants violated FDCPA by failing to notify Plaintiff that the

debt they sought to collect was barred by the applicable statute

of limitations, by threatening a collection action that could not

legally be taken, and by filing a lawsuit that Defendants knew or

should have known was time-barred.

On February 25, 2016, the state court granted summary

judgment to Plaintiff but did not specify the basis for doing so. 

On March 3, 2016, the state court dismissed that action. 

On April 18, 2016, Defendants filed their Motions to Compel

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Case 3:16-cv-00093-BR Document 40 Filed 10/21/16 Page 4 of 20
Arbitration in this action; on May 20, 2016, Plaintiff filed her

Response (#24) to Defendants’ Motions; and on June 24, 2016,

Defendants filed their Replies (#29, #30) in support of their

Motions. In its Reply (#30) Gordon included a Motion to Strike

Exhibit 5 of Plaintiff’s Response.

On August 8, 2016, Plaintiff filed, without leave of Court,

a Supplement (#31) to her Response to Defendants’ Motions. The

Court ultimately allowed Plaintiff’s filing and authorized

Defendants to file sur-replies. On August 22, 2016, Defendants

filed Sur-replies (#33, #34). On September 23, 2016, Midland

filed a Motion (#36) to Supplement Filings and for Protective

Order, which the Court granted on September 27, 2016. The Court

took the Motions to Compel Arbitration under advisement on

September 30, 2016, when Midland filed its Supplemental Briefing

(#38). 

STANDARDS

The Federal Arbitration Act (FAA), 9 U.S.C. § 1, et seq., 

was enacted to "advance the federal policy favoring arbitration

agreements." Lowden v. T-Mobile USA, Inc., 512 F.3d 1213, 1217

(9th Cir. 2008). The FAA provides arbitration agreements

generally "shall be valid, irrevocable, and enforceable." Id. 

See also 9 U.S.C. § 2. Courts must "rigorously enforce"

arbitration agreements. Am. Express Co. v. Italian Colors Rest.,

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Case 3:16-cv-00093-BR Document 40 Filed 10/21/16 Page 5 of 20
133 S. Ct. 2304, 2309 (2013). See also Simula, Inc. v. Autoliv,

Inc., 175 F.3d 716, 719 (9th Cir. 1999)(citing Dean Witter

Reynolds v. Byrd, 470 U.S. 213, 218 (1985)). The Court "must

enforce the agreement” if it is satisfied that the making of the

agreement for arbitration is not at issue. Tillman v. Tillman,

825 F.3d 1069, 1073 (2016). The court's task is to "determine

(1) whether a valid agreement to arbitrate exists, and, if it

does, (2) whether the agreement encompasses the dispute at

issue." Lowden, 512 F.3d at 1217 (citation omitted). See also

Boardman v. Pacific Seafood Group, 822 F.3d 1011, 1017 (9th Cir.

2016). When interpreting a contract, courts must give “due

regard to the federal policy in favor of arbitration” and resolve

ambiguities “as to the scope of arbitration in favor of

arbitration." Boardman, 822 F.3d at 1018 (quoting Wagner v.

Stratton Oakmont, Inc., 83 F.3d 1046, 1049 (9th Cir 1996)).

"[A]rbitration is a matter of contract," and courts must

"place arbitration agreements on equal footing with other

contracts." EEOC v. Waffle House, Inc., 534 U.S. 279, 293

(2002). Accordingly, when grounds "exist at law or in equity for

the revocation of any contract," courts may decline to enforce

arbitration agreements. 9 U.S.C. § 2. See also Doctor's

Assocs., Inc. v. Casarotto, 517 U.S. 681, 683 (1996); Ferguson v.

Countrywide Cred. Indus., Inc., 298 F.3d 778, 782 (9th Cir.

2002). Arbitration agreements are subject to all defenses to

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Case 3:16-cv-00093-BR Document 40 Filed 10/21/16 Page 6 of 20
enforcement that apply to contracts generally. 9 U.S.C. § 2. 

If the court determines the matter is subject to an

arbitration clause, it may either stay the matter pending

arbitration or dismiss the matter. Johnmohammadi v.

Bloomingdale’s, Inc., 755 F.3d 1072, 1074 (9th Cir. 2014)(citing 

Sparling v. Hoffman Constr. Co., Inc., 864 F.3d 635, 638 (9th

Cir. 1988)).

DISCUSSION

Defendants seek an order to compel arbitration of

Plaintiff’s individual claims; to stay the case pending

arbitration or, in the alternative, to dismiss the case in its

entirety; and to strike Plaintiff’s class-action allegations. 

According to Defendants, Plaintiff’s claims are subject to the

arbitration provision of the Citibank Card Agreement to which

Plaintiff initially agreed, and, therefore, Plaintiff’s claims

must be arbitrated. 

Plaintiff, however, asserts this action is not subject to

arbitration on the grounds that (1) Midland has not proven the

parties had a valid existing agreement to arbitrate, and Midland

has not proven ownership of the debt; (2) Gordon does not fit 

the definition of “agent” as defined in the Card Agreement; 

(3) Defendants have waived their rights to enforce arbitration 

by pursuing litigation in state court; (4) the state-court

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judgment establishes (by issue preclusion) that Midland does not

own the debt and Defendants’ attempts to collect the debt were

untimely; and (5) Plaintiff’s FDCPA and class-action claims are

not subject to arbitration. 

According to Plaintiff, therefore, Defendants are precluded

from enforcing the arbitration provision of the Card Agreement

even if the Card Agreement is deemed to be valid. 

I. The validity of the Card Agreement and the applicability and

enforcement of the arbitration provision must be resolved by

the arbitrator.

Based on the clear language of the Card Agreement,

Defendants contend determination of the validity of the Card

Agreement between the parties and the applicability and

enforceability of the arbitration provision must be resolved by

an arbitrator. As noted, however, Plaintiff contends there is

not any evidence that an agreement between Plaintiff and

Defendant Midland exists.

With its Motion, Midland produced business records

maintained in the normal course of business, including those

obtained from Citibank. Midland submitted the Declaration (#11)

of Michael Burger and the Business Records Affidavit (#12) of

Aimee Dykes to show that Plaintiff entered into a Card Agreement

with Citibank; that Midland is the assignee of Citibank; and that

Midland, therefore, is entitled to enforce the arbitration

provision of the Card Agreement. Midland’s documents include an

8 - OPINION AND ORDER

Case 3:16-cv-00093-BR Document 40 Filed 10/21/16 Page 8 of 20
exemplar of a Card Agreement dated 2009 that relates to

Plaintiff’s account opened in 2008. Midland, however, has not

provided a personalized or actual signed Card Agreement that

explicitly reflects Plaintiff assented to its terms. Plaintiff

contends the lack of evidence showing that Plaintiff personally

assented to the Card Agreement is fatal to Defendants’ claim. 

In Nagrampa v. MailCoups the Ninth Circuit held “the

arbitrability of a particular dispute is a threshold issue to be

decided by the courts” unless that issue is explicitly assigned

to the arbitrator. 469 F.3d 1257, 1268 (9th Cir. 2006). See

also Rent–A–Ctr., W., Inc. v. Jackson, 561 U.S. 63, 65 (2010)

(holding arbitrability is a question for the arbitrator only when

“the agreement explicitly assigns that decision to the

arbitrator”). The Ninth Circuit, however, explained in Cox v.

Ocean View Hotel Corporation that challenges to a contract’s

validity as a whole, rather than to the arbitration provision

alone, are to be considered by the arbitrator. 533 F.3d 1114,

1120 (9th Cir. 2008). The Court noted in Cox that "our case law

makes clear that courts properly exercise jurisdiction over

claims raising (1) defenses existing at law or in equity for the

revocation of (2) the arbitration clause itself,” id., but if

"the challenge is to the arbitration clause itself, the issue of

the contract's validity is considered by the arbitrator.” 

Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 445–46

9 - OPINION AND ORDER

Case 3:16-cv-00093-BR Document 40 Filed 10/21/16 Page 9 of 20
(2006). In other words, when a plaintiff's legal challenge is

that the contract as a whole is nonexistent, invalid, or

unenforceable, the arbitrator decides the validity of the

contract, including derivatively the validity of the arbitration

clause. Id. 

 Here Plaintiff does not specifically challenge the validity

of the arbitration provision standing alone, but instead asserts

various reasons why the Card Agreement itself is unenforceable. 

Following Buckeye and Cox, the Court, therefore, concludes

Plaintiff’s challenge to the validity of the Card Agreement and

the applicability and enforcement of the arbitration provision is

an issue that is reserved to the arbitrator. 

II. The arbitrator must decide whether the Card Agreement

applies to Defendant Gordon as an agent of Midland.

In her response to Gordon’s Motion, Plaintiff submitted a

copy of an “Account Purchase Agreement” (Ex. 5) dated 

November 30, 2010, between Midland and another bank.2 Based on

the language of this document Plaintiff contends the arbitration

provision of the Card Agreement applies only to actions brought

against Citibank’s own “agents” rather than the agents of

Citibank’s assignees or successors. 

As noted, the arbitrator must resolve as a threshold issue

2 Plaintiff submits this Agreement because she contends

Midland has not produced the Purchase Agreement between Midland

and Citibank for Plaintiff’s account.

10 - OPINION AND ORDER

Case 3:16-cv-00093-BR Document 40 Filed 10/21/16 Page 10 of 20
the validity, applicability, and enforceability of the Card

Agreement itself. Accordingly, the Court concludes on this

record that the arbitrator also must resolve as a threshold issue

whether the Card Agreement applies to Defendant Gordon as an

agent of Midland. 

In its Reply Gordon moves to strike the Account Purchase

Agreement (Ex. 5) submitted by Plaintiff on the grounds that the

document is not properly authenticated, is hearsay, and is

irrelevant. The Court, however, denies this Motion because the

Court concludes this issue also applies to the validity,

applicability, and enforceability of the Card Agreement and,

therefore, must be determined by an arbitrator.

III. Defendants have not waived their right to arbitration by

proceeding in state court.

Plaintiff contends Defendants waived any right to

arbitration by proceeding with litigation in state court. 

Defendants assert they did not waive their rights to arbitration

because Defendants did not have the right to compel arbitration

as to the FDCPA claim in light of the fact that Plaintiff did not

raise such a claim in the state-court action.

In Davis v. CACH, LLC., the defendants moved to compel

arbitration of the plaintiff’s FDCPA and class-action claims

based on the defendants’ collection efforts as to the plaintiff’s

credit-card account. The plaintiff argued the defendants had

waived any right to arbitrate the FDCPA claim by bringing a

11 - OPINION AND ORDER

Case 3:16-cv-00093-BR Document 40 Filed 10/21/16 Page 11 of 20
lawsuit in state court to collect the plaintiff’s debt. The

court noted the “mere filing of a lawsuit in state court to

collect on a debt does not mean the debt collector cannot then

compel arbitration if the debtor later brings suit regarding

different claims.” No. 14-cv-03892, 2015 WL 913392, at *5 (N.D.

Cal., Mar. 2, 2015)(citing Hodson v. Javitch, Block & Rathbone,

LLP, 531 F. Supp. 2d 827, 831 (N.D. Ohio 2008)(finding that

filing collection actions in state court does not waive the

party's right to later seek arbitration of FDCPA claims

subsequently brought by the debtor). See also Doctor's Assocs.,

Inc. v. Distajo, 107 F.3d 126, 133 (2d Cir. 1997)(finding “waiver

where a party has previously litigated an unrelated yet

arbitrable dispute would effectively abrogate an arbitration

clause once a party had litigated any issue relating to the

underlying contract.”). The Court agress with these principles.

On this record, therefore, the Court concludes Defendants’

efforts in state court to collect Plaintiff’s debt do not

constitute a waiver of their right to pursue arbitration on

Plaintiff’s claims in this action. 

IV. The applicability and extent of issue preclusion as a result

of the state-court decision must be resolved by the

arbitrator.

As noted, Midland and Plaintiff filed cross-motions for

summary judgment in the state-court action. Midland asserted it

was entitled to judgment as a matter of law based on Plaintiff’s

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state-court answer in which she admitted she obtained, used, and

failed to pay for the charges incurred on the charge card. 

Plaintiff filed a cross-motion for summary judgment and asserted

she was entitled to summary judgment on the grounds that

Midland’s action was barred by the applicable statute of

limitations,3 Midland failed to register as a collection agency,

and Midland failed to offer any admissible evidence that it owned

the underlying debt. The state court, without elaboration,

denied Midland’s motion and granted Plaintiff’s motion.

As noted, Plaintiff contends the state court’s resolution of

the collection action precludes determination as to whether there

is an agreement to arbitrate, but Defendant asserts issue

preclusion does not apply, and, in any event, this is an issue

for the arbitrator to determine. In United Computer Systems,

Inc. v. AT&T Corporation the Ninth Circuit held a defense that

res judicata barred claims between the parties as the result of a

prior judgment that resolved these claims was also itself an

issue for resolution by the arbitrator. 298 F.3d 756, 763-64

(9th Cir. 2002)(citing Chiron Corp. v. Ortho Diagnostic Sys.,

Inc., 207 F.3d 1126 (9th Cir. 2000)). 

Accordingly, the Court concludes on this record that

Plaintiff’s arguments based on issue preclusion as a result of

3 Plaintiff argued a four-year statute of limitations applied

rather than a six-year statute of limitations.

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the state court’s determination in the collection action must be

resolved by the arbitrator. 

V. Plaintiff’s FDCPA and class-action claims are subject to

arbitration.

Plaintiff contends even if there is a valid Card Agreement,

her FDCPA and class-action claims are not subject to arbitration.

As noted, Plaintiff challenges only the applicability of the

arbitration provision to her claims, but does not challenged the

validity of the arbitration provision itself.

The exemplar Card Agreement, produced as the business

records maintained in the normal course of business related to

Plaintiff’s account, includes the following standard arbitration

provision:

ARBITRATION

PLEASE READ THIS PROVISION OF THE AGREEMENT

CAREFULLY. IT PROVIDES THAT ANY DISPUTE MAY

BE RESOLVED BY BINDING ARBITRATION. 

ARBITRATION REPLACES THE RIGHT TO GO TO

COURT, INCLUDING THE RIGHT TO A JURY AND THE

RIGHT TO PARTICIPATE IN A CLASS ACTION OR

SIMILAR PROCEEDING. IN ARBITRATION, A

DISPUTE IS RESOLVED BY AN ARBITRATOR INSTEAD

OF A JUDGE OR JURY. ARBITRATION PROCEDURES

ARE SIMPLER AND MORE LIMITED THAN COURT

PROCEDURES.

Agreement to Arbitrate: Either you or we

may, without the others’ consent, elect

mandatory, binding arbitration for any claim,

dispute, or controversy between you and use

(called “Claims”).

Decl. of Michael Burger (#11), Ex. C at 10 (emphasis in

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Case 3:16-cv-00093-BR Document 40 Filed 10/21/16 Page 14 of 20
original). 

The Card Agreement also defines the claims subject to 

arbitration as follows:

All claims relating to your account, a prior

related account, or our relationship are

subject to arbitration, including Claims

regarding the application, enforceability, or

interpretation of this Agreement and this

arbitration provision. All Claims are

subject to arbitration, no matter what legal

theory they are based on or what remedy

(damages, or injunctive or declaratory

relief) they seek. This includes Claims

based on contract, tort (including

intentional tort), fraud, agency, your or our

negligence, statutory or regulatory

provisions, or any other source of law. . . .

A party who initiates a proceeding in court

may elect arbitration with respect to any

Claim advanced in that proceeding by any

other party. Claims and remedies as part of

a class action, private attorney general or

other representative action are subject to

arbitration on an individual (non-class, nonrepresentative) basis. . . . 

Id. (emphasis added). The Card Agreement further defines whose

claims are subject to arbitration:

Not only ours and yours, but also Claims made

by or against anyone connected with us or you

or claiming through us or you, such as a coapplicant or authorized user of your account,

an employee, agent, representative,

affiliated company, predecessor or successor,

heir, assignee, or trustee in bankruptcy.

Id.

A. Plaintiff’s FDCPA claim is subject to arbitration.

Defendants contend Plaintiff’s FDCPA claim is subject

to the arbitration provision of the Card Agreement, which defines

15 - OPINION AND ORDER

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arbitrable “claims” as those “relating to your account” and

covers all of those claims “no matter what legal theory they

arise under,” including statutory claims. Without identifying

any evidence in the record or offering any authority in support,

however, Plaintiff asserts her FDCPA claim does not “relate” to

the account.

The FDCPA prohibits certain actions by creditors

attempting to collect a debt. The Court notes, however, an 

action to collect a debt logically relates to the account that

gave rise to the debt. Plaintiff states in her Complaint that

she applied for a Home Depot charge card that was approved by

Citibank to pay for purchases at Home Depot, she defaulted on the

account, and Midland hired Gordon to “collect the debt.” Compl.

¶¶ 16-20. Plaintiff’s FDCPA claim, accordingly, meets both

criteria (“relating to” the account and arising under statutory

provisions) of the arbitration provision of the Card Agreement. 

See Coppock v. Citigroup, Inc., No. C11-1983-JCC, 2013 WL 1192632

(W.D. Wash. March, 22, 2013)(holding an FDCPA claim falls within

the scope of an arbitration provision).

On this record the Court concludes to the extent that

an arbitrator determines there is a valid and enforceable

agreement, Plaintiff’s FDCPA claim is subject to the arbitration

provision.

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B. Plaintiff may pursue her claims in arbitration only on

an individual basis rather than as a class action.

The arbitration provision of the Card Agreement

unambiguously provides “[c]laims and remedies as part of a class

action . . . are subject to arbitration on an individual (nonclass, non-representative) basis.” Emphasis added. 

The Supreme Court in AT&T Mobility v. Concepcion held

class-action waivers are valid and enforceable under the FAA and

under the provisions of an agreement that the parties will

arbitrate their claims solely on an individual basis. 563 U.S.

333, 344 (2011).

On this record the Court concludes under the

arbitration provision of the Card Agreement that Plaintiff is

able to pursue her claims in arbitration only in an individual

capacity. 

VI. The Court stays Plaintiff’s action.

Section 3 of the FAA requires courts to stay actions pending

arbitration. 9 U.S.C. § 3. The Ninth Circuit, however, has held

district courts have discretion to dismiss an action in its

entirety when all of the claims raised in the complaint are

subject to arbitration. Sparling v. Hoffman Constr. Corp., 864

F.2d 635, 638 (9th Cir. 1988). See also Thinket Ink Info. Res.,

Inc. v. Sun Microsystems, Inc., 368 F.3d 1053, 1060 (9th Cir.

2004)(“Although the Federal Arbitration Act provides for a stay

pending compliance with a contractual arbitration clause, . . . a

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request for a stay is not mandatory.”).

Although the Court has concluded at this juncture that all

of Plaintiff’s claims are subject to the arbitration provision of

the Card Agreement, that conclusion is subject to resolution by

the arbitrator, including as to whether the Card Agreement is

valid and enforceable. If, however, the arbitrator were to

determine the Card Agreement is not valid or enforceable, then

Plaintiff should be allowed to pursue her claims in this Court. 

Thus, even though Plaintiff does not raise this issue, the Court,

in the exercise of its discretion, concludes it is appropriate to

stay this case pending the results of arbitration.

VII. Use of arbitration firms designated in the Card Agreement.

On August 8, 2016, Plaintiff submitted supplemental

materials purporting to show that Defendants have been unable to

utilize the services of arbitration firms designated in the Card

Agreement, and, therefore, the Court should deny Defendants’

Motions to Compel Arbitration. 

In its Sur-Reply (#33) Gordon objected to Plaintiff’s

materials and moved to strike them from the record. 

On September 30, 2016, Midland submitted supplemental

documents showing at least one of the firms designated in the

Card Agreement will accept cases from Midland for arbitration. 

The Court, therefore, overrules Gordon’s objection and denies as

moot Gordon’s Motion to Strike.

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CONCLUSION

For these reasons, the Court GRANTS in part and DENIES in

part the Motion (#10) to Compel Arbitration, Stay Case and Strike

Class Allegations filed by Defendant Midland Funding LLC and the

Motion (#14) to Compel Arbitration, Strike Class Allegations, and

Dismiss the Complaint filed by Defendant Gordon Aylworth & Tami

P.C. The Court ORDERS the parties to proceed with arbitration

and STAYS this action pending resolution of the arbitration

proceeding. 

The Court also DENIES as moot Defendant Gordon’s Motion to

Strike Exhibit 5 of Plaintiff’s Response filed as part of

Gordon’s Reply (#30) in Support of Motion to Compel Arbitration

and DENIES as moot Defendant Gordon’s Motion to Strike Document

32-1 of Plaintiff’s Supplemental Response filed as part of

Gordon’s Sur-Reply (#33) in Support of Motion to Compel

Arbitration. 

The Court further DIRECTS the parties to file a joint status

report every 120 days regarding the status of the arbitration

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beginning February 17, 2017, and to advise the Court immediately

when the arbitration is complete.

IT IS SO ORDERED.

DATED this 21st day of October, 2016.

/s/ Anna J. Brown

 

ANNA J. BROWN

United States District Judge

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