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Numrich v. Qwest Corporation

United States District Court, D. Oregon

April 23, 2015

EDGAR T. NUMRICH, Plaintiff,
v.
QWEST CORPORATION, a Colorado Corporation of itself and on behalf of CENTURYLINK, INC., a Corporation of Louisiana, Defendants.

EDGAR T. NUMRICH, Lake Oswego, OR, Plaintiff, Pro Se.

CAREY CALDWELL, RICHARD J. KUHN, Hart Wagner, LLP, Portland, OR, Attorneys for Defendants.

OPINION AND ORDER

ANNA J. BROWN, District Judge.

This matter comes before the Court on the Motion (#13) for Dismissal and Summary Judgment of Defendants Qwest Corporation and CenturyLink, Inc.; Plaintiff Edgar T. Numrich's First Request (#27) for Judicial Notice; Plaintiff's Second Request (#29) for Judicial Notice; Plaintiff's Third Request (#31) for Judicial Notice; and Defendants' Motion (#33) to Strike Plaintiff's Surreplies.

For the reasons that follow, the Court GRANTS Defendants' Motion for Dismissal on the ground of lack of personal jurisdiction as to CenturyLink, GRANTS Defendants' Motion for Dismissal on the ground of lack of subject-matter jurisdiction as to Qwest, GRANTS Defendants' Motion to Strike Plaintiff's Surreplies, and STRIKES Plaintiff's Requests for Judicial Notice.

BACKGROUND

The following facts are taken from the Complaint and the parties' materials filed in relation to Defendants' Motion for Dismissal.

At all relevant times Plaintiff was a resident of Oregon and a subscriber to a residential land-line telephone and broadband internet service. Plaintiff received land-line telephone and broadband internet services pursuant to the Qwest High-Speed Internet Subscriber Agreement that contained the following arbitration clause:

(a) Arbitration Terms. You agree that any dispute or claim arising out of or relating to the Services, Equipment, Software, or this Agreement (whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory) will be resolved by binding arbitration. The sole exceptions to arbitration are that either party may pursue claims: (1) in small claims court that are within the scope of its jurisdiction, provided the matter remains in such court and advances only individual (non-class, non-representative, nonconsolidated) claims; and (2) in court if they relate solely to the collection of any debts you owe to Qwest.
* * *
(b) Waiver of Jury and Class Action. By this Agreement, both you and Qwest are waiving rights to litigate claims or disputes in court.... Both you and Qwest also waive the right to a jury trial on your respective claims, and waive any right to pursue any claims on a class or consolidated basis or in a representative capacity.

Decl. of Carey Caldwell, Ex. C at ¶ 17. The Agreement further provided the arbitration "shall be conducted by the American Arbitration Association ("AAA")" and "[t]he Federal Arbitration Act, 9 U.S.C. Sections 1-16... shall govern the arbitration of the dispute." Id.

CenturyLink is a Louisiana corporation with its principal place of business in Monroe, Louisiana. CenturyLink is a holding company that has an ownership interest in more than 200 companies including Qwest Corporation.[1]

CenturyLink is a registered corporation in Oregon, but it does not maintain any offices, employees, bank accounts, financial accounts, real estate, or personal property in Oregon.

On November 21, 2014, Plaintiff filed a Complaint in this Court against CenturyLink alleging claims for violation of Oregon's Unlawful Trade Practices Act, Oregon Revised Statute § 646.605, et seq .; breach of the implied covenant of good faith and fair dealing; usury; and mail and wire fraud.

On December 24, 2014, Plaintiff filed an Amended Complaint against "Qwest Corporation... of itself and on behalf of CenturyLink" alleging claims for violation of Oregon's Unlawful Trade Practices Act, usury, and mail and wire fraud.

On January 7, 2015, Defendants filed a Motion for Dismissal and Summary Judgment in which they move to dismiss Plaintiff's claims against CenturyLink on the ground of lack of personal jurisdiction, move to dismiss Plaintiff's claims against Qwest on the ground of lack of subject-matter jurisdiction, and/or move for summary judgment on the merits of Plaintiff's claims. On January 29, 2015, Plaintiff filed a Response. On February 11, 2015, Defendants filed a Reply.

On January 9, 2015, the Court issued a Summary Judgment Advice Notice to Plaintiff advising him that if he did not submit admissible evidence in opposition to Defendants' Motion for Summary Judgment, summary judgment could be entered against him.

Between February 17 and 23, 2015, Plaintiff filed three Requests for Judicial Notice. On February 24, 2015, Defendants filed a Motion to Strike Plaintiff's Surreplies (i.e. , Plaintiff's Requests for Judicial Notice). On March 4, 2015, Plaintiff filed a Response to Defendants' Motion to Strike. The Court took the matters under advisement on March 4, 2015.

PLAINTIFF'S REQUESTS FOR JUDICIAL NOTICE (#27, #29, #31) and DEFENDANTS' MOTION (#33) TO STRIKE SURREPLIES

As noted, Plaintiff filed three Requests for Judicial Notice after Defendants filed their Reply. Defendants move to strike Plaintiff's three Requests for Judicial Notice, which Defendants characterize as Surreplies to their Motion for Dismissal.

I. Standards

Federal Rule of Evidence 201 allows a court to take judicial notice of facts that can be "accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Fed.R.Evid. 201(b)(2). The court may take judicial notice of documents that are matters of public record. See MGIC Indem. Corp. v. Weisman , 803 F.2d 500, 504 (9th Cir. 1986)(court may take "judicial notice of matters of public record outside the pleadings" when determining whether a complaint fails to state a claim).

Federal Rule of Civil Procedure 12(f) provides the Court "may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter."

II. Analysis

Defendants contend Plaintiff offers in his Requests for Judicial Notice further legal argument rather than facts that can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned, and, therefore, Plaintiff's Requests are, in fact, Surreplies. The Court agrees.

Local Rule 7-1(f)(3) provides: "Unless directed by the Court, no further briefing is allowed other than the briefing allowed under LR 56-1(b)." Local Rule 56-1(b), in turn, provides only "[i]f an evidentiary objection is raised by the moving party in its reply memorandum [may] the non-moving ...


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