1 – OPINION & ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

ANDREA OLSON, 

No. 3:15-cv-2216-HZ

Plaintiff,

OPINION & ORDER

v.

MBO PARTNERS, INC., 

Defendant.

Andrea Olson

3404 SW Comus Street

Portland, OR 97219

Pro se Plaintiff

Eric H. Rumbaugh

Kirk A. Pelikan

MICHAEL BEST

100 East Wisconsin Ave., Suite 3300

Milwaukee, WI 53202
2 – OPINION & ORDER

Jenna Leigh Mooney

Kalia Walker

DAVIS WRIGHT TREMAINE, LLP

1300 SW Fifth Ave., Suite 2400

Portland, OR 97201

Attorneys for Defendant

HERNÁNDEZ, District Judge:

Plaintiff Andrea Olson brings this employment discrimination action against Defendant 

MBO Partners, Inc. Plaintiff alleges that she was discriminated against on the basis of disability 

and reprisal for asserting her rights. Plaintiff brings claims under the Americans with Disabilities 

Act, 42 U.S.C. § 12112-12203; Family Medical Leave Act, 29 U.S.C. § 2615(a), (b); and the 

Rehabilitation Act, 29 U.S.C. § 793. Defendant moves to dismiss Plaintiff’s claims because they 

are subject to mandatory arbitration. Alternatively, Defendant moves to stay the case and compel 

arbitration. Also pending before the Court are Plaintiff’s motion for a stay and Plaintiff’s motion 

for reconsideration of this Court’s decision to deny Plaintiff’s request for appointed counsel. The 

Court grants Defendant’s motion to dismiss and denies Plaintiff’s motions. However, the Court 

will issue a sua sponte order granting Plaintiff appointed counsel for the limited purpose of 

drafting an amended complaint in response to this Opinion & Order.

FACTUAL BACKGROUND

Plaintiff began working as a contractor for the Bonneville Power Administration (BPA) 

in January of 2010. Compl. ¶ 5, ECF 1. In December of 2011, BPA told Plaintiff that, in order to 

continue working for BPA, she would have to become a “W-2 employee” of Defendant, a 

contractor of BPA who would process payments from BPA to Plaintiff. Id. at ¶ 8. Plaintiff was 

told she would have to sign a contract with Defendant. Id.
3 – OPINION & ORDER

On January 17, 2012, Plaintiff signed a General Service Agreement (“Agreement”) with 

Defendant. Id.; Baxter Decl. Ex. 1, ECF 18-1. Defendant functioned as a placement agency by 

supplying Plaintiff’s services to BPA. Compl. ¶ 13. BPA paid Defendant for work performed by 

Plaintiff and then Defendant, in turn, paid Plaintiff after extracting a “business management fee” 

for its services. Id. at ¶ 12.

The Agreement includes the following arbitration provision:

The Parties agree to arbitrate any and all disputes between them. The Parties agree that 

arbitration shall be the exclusive method of resolving any and all disputes between them 

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

dealings, under this Agreement, under state, federal or local or other law, under common 

law, or otherwise.

Baxter Decl. Ex. 1 at ¶ 10. In a separate paragraph, the Agreement states: 

The parties agree that they each waive any right they have to a jury trial regarding any 

dispute between them. Arbitration will be the exclusive method for resolving disputes 

between the Parties.

Id. at ¶ 11.

PROCEDURAL BACKGROUND

Plaintiff filed her complaint on November 24, 2015. The Hon. Michael Simon was 

assigned to preside over Plaintiff’s case. At the time, Plaintiff was represented by counsel. 

However, on January 12, 2016, Plaintiff’s attorney moved for leave to withdraw from the case 

and the motion was granted. Order, Jan. 14, 2016, ECF 6. Plaintiff has not obtained replacement 

counsel.

On February 19, 2016, Defendant moved to dismiss Plaintiff’s case. Def.’s Mot. Dismiss, 

ECF 16. Plaintiff was granted two extensions of time to respond to Defendant’s motion, in order 

for her to secure counsel. After she was unable to do so, she requested the appointment of 

counsel from the Court. Her request was denied because she failed to provide proof of indigency 
4 – OPINION & ORDER

and the Court determined that the facts and legal issues involved in this case were not of 

substantial complexity. Order, July 5, 2016, ECF 25. Further, there was no indication that 

Plaintiff could not sufficiently articulate her claims and Plaintiff failed to demonstrate a 

likelihood of success on the merits. Id.

Plaintiff filed a response to Defendant’s motion to dismiss and also moved for Judge 

Simon to recuse himself from the case. Judge Simon granted the motion for recusal and, thus, 

Plaintiff’s case was reassigned to this Court. Order, July 28, 2016, ECF 31. 

Before Defendant replied to Plaintiff’s response to the motion to dismiss, Plaintiff filed a 

motion for leave to file an amended complaint. Plaintiff’s motion stated that she wished to 

“amend and add joint employer/federal agency BPA to this case as a reasonable 

accommodation.” Mot. Am. Compl., ECF 34. However, Plaintiff failed to attach a proposed 

amended complaint to her motion. Several days later, Defendant filed its reply in the motion to 

dismiss.

On August 10, 2016, this Court entered an order granting Plaintiff 10 days to bring her 

motion for leave to file an amended complaint in compliance with Local Rule 15-1, which 

requires Plaintiff to submit, as an exhibit to her motion for leave to file an amended complaint, a 

copy of the proposed amended pleading. Order, August 10, 2016, ECF 36. Plaintiff moved for an 

extension of time to comply with this Court’s order. The Court granted Plaintiff’s motion and 

ordered her to submit her proposed amended complaint by September 7, 2016. Order, August 23, 

2016, ECF 39. 

Instead of complying with this Court’s order, on September 2, 2016, Plaintiff submitted a 

motion for the appointment of counsel. This Court denied Plaintiff’s motion for the same reasons 

stated by Judge Simon. Opinion & Order, Sept. 24, 2016, ECF 44. Further, the Court stated: 
5 – OPINION & ORDER

Plaintiff is given one final opportunity to submit a proposed amended complaint within

10 days of this order. If Plaintiff fails to submit a proposed amended complaint that 

complies with this Court’s August 23, 2016 order, the Court will deny Plaintiff’s motion 

for leave to file an amended complaint and will proceed using Plaintiff’s original 

complaint as the operative complaint in this case.

Id.

Plaintiff failed to submit a proposed amended complaint. Instead, on October 4, 2016, 

Plaintiff filed a motion for stay and a motion for reconsideration of this Court’s order denying 

her appointment of counsel.

STANDARDS

Although the FAA authorizes a court to stay an action that is subject to a valid agreement 

to arbitrate, 9 U.S.C. § 3, a court instead may dismiss an action, rather than merely staying it, 

when all of the issues raised in the action are arbitrable. Sparling v. Hoffman Constr. Co., 864 

F.2d 635, 638 (9th Cir. 1988) (“The district court acted within its discretion when it dismissed 

[the plaintiff's] claims. As in Martin Marietta [Aluminum, Inc. v. General Electric Co., 586 F.2d 

143 (9th Cir. 1978)], the arbitration clause was broad enough to bar all of the plaintiff's claims 

since it required [the plaintiff] to submit all claims to arbitration.”); see also Bridgetown 

Trucking, Inc. v. Acatech Sols., Inc., No. 3:16-CV-00236-SI, 2016 WL 3411552, at *11 (D. Or. 

June 16, 2016) (finding dismissal of the case appropriate where all of the plaintiff’s claims were 

subject to arbitration).

DISCUSSION

I. Plaintiff’s Motion for Stay and Motion for Reconsideration

Plaintiff moves to stay the case “until this Court addresses legal abuse concerns and 

ensures fair and impartial due process.” Pl.’s Mot. Stay 1, ECF 46. Plaintiff submits a 9-page 

motion and 90 pages of documents in support. Id. The essence of Plaintiff’s argument is that she 
6 – OPINION & ORDER

is unable to represent herself and, therefore, is unable to comply with this Court’s orders.

Plaintiff also moves for reconsideration of this Court’s order denying her motion for courtappointed counsel. Pl.’s Mot. Recons., ECF 47. She repeats the arguments made in her prior 

requests for court-appointed counsel.

Plaintiff’s arguments are unavailing. “Although Rule 59(e) of the Federal Rules of Civil 

Procedure permits a district court to reconsider and amend a previous order, the rule offers an 

extraordinary remedy, to be used sparingly in the interests of finality and conservation of judicial 

resources.” Kona Enter., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000) (citation and 

quotation marks omitted). “Under Rule 59(e), a motion for reconsideration should not be 

granted, absent highly unusual circumstances, unless the district court is presented with newly 

discovered evidence, committed clear error, or if there is an intervening change in the controlling 

law.” 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999) (citation omitted).

Plaintiff’s motion for a stay and motion for reconsideration merely repeat arguments that 

have already been considered and rejected by this Court. As the Court has explained, there is no 

constitutional right to counsel in a civil case. Opinion & Order, Sept. 24, 2016 (citing United 

States v. 30.64 Acres of Land, 795 F.2d 796, 801 (9th Cir. 1986)). Further, Plaintiff has not 

provided any information to indicate that she is indigent. 

This case was filed almost a year ago and Defendant filed its motion to dismiss over eight 

months ago. The Court has provided Plaintiff with numerous extensions of time and has 

attempted to be as clear as possible in explaining to Plaintiff what she needs to do in order to 

comply with this Court’s orders. At this point, Defendant is entitled to a ruling on its motion to 

dismiss and Plaintiff has offered no argument to persuade this Court that the case should not go 

forward. Accordingly, Plaintiff’s motion for a stay and motion for reconsideration are denied. 
7 – OPINION & ORDER

The Court proceeds to rule on Defendant’s motion to dismiss the version of Plaintiff’s complaint

that was originally submitted.

II. Defendant’s Motion to Dismiss

Defendant argues that the Court should dismiss or stay Plaintiff’s claims due the parties’ 

agreement to arbitrate. Plaintiff does not challenge the fact that an arbitration clause exists in the 

parties’ Agreement and that such clause encompasses Plaintiff’s employment discrimination 

claims. Instead, Plaintiff contends that the arbitration provision is unenforceable because it 

violates Oregon law, the Agreement is unconscionable because it is an adhesion contract, 

Plaintiff was forced to sign the Agreement under duress, and the Agreement was the result of 

misrepresentation or fraudulent inducement. Each of Plaintiff’s arguments fails. 

a. The Agreement and Oregon law

Plaintiff contends that that the arbitration language in the Agreement is not compliant 

with Oregon Revised Statute § (O.R.S.) 36.620 and, thus, is not enforceable. Plaintiff points to 

specific language that O.R.S. 36.620(5) requires to be included in any arbitration agreement. The 

language identified by Plaintiff is not present in the parties’ Agreement.

However, Defendant correctly states that O.R.S. 36.620(5) is preempted by the Federal 

Arbitration Act (FAA), 9 U.S.C. § 2. The FAA sets forth a “national policy favoring arbitration” 

that “forecloses state legislative attempts to undercut the enforceability of arbitration 

agreements.” Preston v. Ferrer, 552 U.S. 346, 353 (2008) (quoting Southland Corp. v. Keating, 

465 U.S. 1, 6 (1984)). Thus, where a state law imposes conditions specifically for arbitration 

agreements that go beyond the conditions in the FAA, the law is preempted by the FAA. Lowden 

v. T-Mobile USA, Inc., 512 F.3d 1213, 1219 (9th Cir. 2008) (“The United States Supreme Court 

has interpreted this statute to require that any state legal principle attempting to invalidate an 
8 – OPINION & ORDER

arbitration agreement must be a principle that applies to contracts generally.”). On that basis, 

several Oregon District Court decisions have determined that the FAA, where applicable, 

preempts O.R.S. 36.620(5). See, e.g., Ortega v. Barrett Business Services, Inc., et al., No. 2:16-

CV-00368-SU, 2016 WL 5030396, at *4 (D. Or. Aug. 19, 2016); Hermida v. JP Morgan Chase 

Bank, N.A., No. 3:15-CV-00810-HZ, 2015 WL 6739129, at *3 (D. Or. Nov. 3, 2015); Noorzai v. 

Dabella Exteriors, LLC, No. 3:15-CV-00045-PK, 2015 WL 5037669, at *3 (D. Or. Aug. 25, 

2015); W. v. Brookdale Senior Living Communities Inc., No. 3:13-CV-1567-HU, 2014 WL 

2829751, at *9 (D. Or. June 20, 2014); Bettencourt v. Brookdale Senior Living Communities, 

Inc., No. 09-CV-1200-BR, 2010 WL 274331, at *7 (D. Or. Jan. 14, 2010). 

Plaintiff does not contend that the arbitration language in the Agreement is not compliant 

with the FAA. Any failure of the Agreement to comply with ORS 36.620(5) does not render the 

Agreement unenforceable.

b. Unconscionability

Plaintiff states that the Agreement is unconscionable because it is an adhesion contract. 

Plaintiff cites several California state court cases to support of her assertion. Defendant argues 

that Plaintiff fails to show that the formation of the arbitration provision was procedurally 

unconscionable or that anything in the arbitration provision is substantively unconscionable.

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 Associates, Inc. v. 

Casarotto, 517 U.S. 681, 683 (1996). Federal courts “apply ordinary state-law principles that 

govern the formation of contracts” to evaluate the validity of an arbitration agreement. First 

Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944 (1995); see also Circuit City Stores, Inc. 

v. Adams, 279 F.3d 889, 892 (9th Cir. 2002) (federal courts apply the law of the forum state to 
9 – OPINION & ORDER

determine enforceability of an arbitration agreement). Thus, the Court must interpret and apply 

Oregon law as applied by Oregon courts. 

Unconscionability is a defense “that may render an agreement to arbitrate

unenforceable.” Chalk v. T-Mobile USA, Inc., 560 F.3d 1087, 1092 (9th Cir. 2009). “The party 

asserting unconscionability bears the burden of demonstrating that the arbitration clause in 

question is, in fact, unconscionable.” Motsinger v. Lithia Rose-FT, Inc., 211 Or. App. 610, 614, 

156 P.3d 156, 160 (2007) (citing W. L. May Co., Inc. v. Philco–Ford Corp., 273 Or. 701, 707, 

543 P.2d 283 (1975)). Unconscionability is a “question of law ... determined [by the court] based 

on the facts in existence at the time the contract was made.” Id. “In Oregon, the test for 

unconscionability has two components—procedural and substantive.” Id. “Procedural 

unconscionability refers to the conditions of contract formation, and substantive 

unconscionability refers to the terms of the contract.” Id.

Plaintiff contends that the Agreement is unconscionable because Defendant had all of the 

bargaining power and Plaintiff had to sign the Agreement on a “take it-or-leave it” basis after she 

was already employed. However, Plaintiff’s Complaint makes clear that, while she was already 

employed by BPA when she was presented with the Agreement, she was not employed by 

Defendant. Her employment with Defendant began at the time she signed the Agreement. 

Compl. ¶¶ 8, 10. 

As to the “take it-or-leave it” nature of the Agreement, the Ninth Circuit has applied 

Oregon law and found that “a contract of adhesion—an agreement presented on a take-it-orleave-it basis—reflects unequal bargaining power, but the adhesive nature of a contract standing 

alone is insufficient to render an agreement procedurally unconscionable.” Chalk, 560 F.3d at 

1094. Where the arbitration clause is not hidden or disguised, and the plaintiff is given time to 
10 – OPINION & ORDER

read the documents before assenting to their terms, there is no procedural unconscionability. Id.

A party is presumed to be familiar with the contents of any document that bears the person's 

signature. Id.

Plaintiff does not allege that the arbitration clause was hidden or that she was not given 

time to read it before signing. Nor does she allege that the clause contains unfair or unreasonable 

terms. In sum, Plaintiff fails to demonstrate that the Agreement is unconscionable in any way. 

c. Duress

Plaintiff claims she was forced to sign the Agreement under duress because she would 

have lost her job at BPA if she refused to sign the Agreement.

“Duress is an unlawful constraint exercised on a person whereby he is forced to do some 

act against his will.” Kreidler v. Taylor, 473 F. Supp. 2d 1090, 1096 (D. Or. 2007) (quoting 

Oregon Bank v. Nautilus Crane & Equip. Corp., 68 Or. App. 131, 142, 683 P.2d 95 (1984).

“Whether particular facts are sufficient to constitute a defense of economic duress or business 

compulsion is a matter of law for the courts, while the question of whether the facts alleged 

actually exist is a matter for the jury.” Id. There are three elements to a prima facie case of 

economic duress: (1) wrongful acts or threats; (2) financial distress caused by the wrongful acts 

or threats, and (3) the absence of any reasonable alternative to the terms presented by the 

wrongdoer. Oregon Bank, 68 Or. App. at 142, 683 P.2d at 103. 

Plaintiff makes no allegations of any “wrongful acts or threats” except for the fact that 

the Agreement was presented to her on a “take it-or-leave it” basis and that signing the 

Agreement was a condition of her offer of employment. As discussed above, this unequal power 

dynamic does not render the Agreement unenforceable. Even if Plaintiff felt that she had no 
11 – OPINION & ORDER

choice but to sign the Agreement in order to work for Defendant, such a “threat” does not 

constitute duress. See Oregon Bank, 68 Or. App. at 143, 683 P.2d at 103. 

d. Misrepresentation or fraudulent inducement

Plaintiff alleges that she “was led to believe that she was signing off permission for 

[Defendant] to payroll [Plaintiff’s] BPA contract payments[.]” Plaintiff implies that she did not 

know that the Agreement contained an arbitration provision. 

To support her claim of misrepresentation or fraudulent inducement under Oregon law, 

Plaintiff must establish 1) that Defendant made a false representation of material fact; 2) with the 

knowledge or belief that it was false, or with an insufficient basis for asserting that it was true; 3) 

with the intent that Plaintiff rely on it; 4) that Plaintiff justifiably relied; and 5) that Plaintiff 

suffered consequent damages. Meade v. Cedarapids, Inc., 164 F.3d 1218, 1221 (9th Cir. 1999). 

“The mere nondisclosure of material facts can be a form of misrepresentation where the 

defendant has concealed a known fact that is material to the transaction or has made 

representations that would be misleading without full disclosure. Id. (citations omitted).

Plaintiff fails to allege that Defendant made any false representation of material fact. At 

most, Plaintiff alleges that Defendant failed to disclose that the Agreement had an arbitration 

clause. However, the arbitration provision is clearly stated in paragraphs 10 and 11 of the 

Agreement. As discussed above, there is a presumption that Plaintiff read the Agreement and 

was familiar with the contents. See First Interstate Bank of Oregon, N.A. v. Wilkerson, 128 Or. 

App. 328, 337 n. 11, 876 P.2d 326, 331 (1994) (“A person is presumed to be familiar with the 

contents of any document that bears the person's signature.”). 

///
12 – OPINION & ORDER

III. Leave to Amend

Before dismissing a pro se complaint for failure to state a claim, the Court must provide 

Plaintiff with a statement of the complaint's deficiencies and give Plaintiff leave to amend the 

complaint, unless it is clear that the deficiencies of the complaint cannot be cured by amendment. 

Rouse v. U.S. Dep't of State, 548 F.3d 871, 881–82 (9th Cir.2008).

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

must be dismissed. Nevertheless, the Court provides Plaintiff with an opportunity to amend her 

complaint in case she could cure the deficiencies noted. In addition, the Court notes that Plaintiff 

has stated in various motions that she wishes to add another defendant as a party to this case. If 

Plaintiff chooses to amend her complaint following this decision, her amended complaint should 

include all parties against whom she wishes to bring her claims. 

Plaintiff has expressed to the Court several times that she is unable to understand this 

Court’s orders to amend her complaint in compliance with the Federal Rules of Civil Procedure 

and this District’s Local Rules. Therefore, the Court will enter a sua sponte order appointing

counsel for the limited purpose of assisting Plaintiff to file an amended complaint that complies 

with this Opinion & Order. Plaintiff should be aware that her appointed counsel will only be 

directed to assist her with the filing of an amended complaint and is not being appointed as 

Plaintiff’s counsel for the duration of the case. Thus, Plaintiff is still encouraged to seek counsel 

to represent her on this case.

CONCLUSION

The Court grants Defendant’s Motion to Dismiss [16]. The Court denies Plaintiff’s 

Motion for Stay [46] and Motion for Reconsideration [47]. Plaintiff is granted leave to amend 

her complaint. The Court will enter a sua sponte order appointing Plaintiff counsel for the 
13 – OPINION & ORDER

limited purpose of submitting an amended complaint. The amended complaint is due within 60 

days of an attorney accepting this Court’s appointment.

IT IS SO ORDERED.

Dated this ____________day of ________________________, 2016.

 

________________________________________________

MARCO A. HERNÁNDEZ

United States District Judge