United States District Court, D. Oregon
Michael H. Simon United States District Judge
Key Contracting, Inc. (“Key Contracting”) and Key
Equipment, LLC (“Key Equipment”), have sued
Defendants, Contech International, LLC
(“Contech”), Curb Dog Equipment, Inc.
(“Curb Dog”), Robert D. Johnson, Stuart D.
Johnson, and Darrell Ketch. As alleged in Plaintiffs'
First Amended Complaint, Key Contracting performs concrete
curb construction for commercial businesses. ECF 2 at 2,
¶ 4. Defendant Contech, which is now dissolved, was a
manufacturer or distributor of “Slipform Concrete Curb
Machines.” ECF 2 at 2, ¶ 5. Defendant Curb Dog,
which also is a manufacturer or distributor of these
machines, is the successor to Contech and engages in the
substantial continuation of Contech's business.
Id. at ¶ 6. Defendants Robert Johnson and
Stuart Johnson are the majority owners of Contech.
Id. at ¶ 7. Defendant Darrell Ketch is the
majority owner, director, and officer of Defendant Curb Dog.
Id. at ¶ 9.
about September 9, 2016, Plaintiffs purchased from Defendant
Contech a PCM-6500 Slipform Concrete Curb Machine, commonly
referred to as a “Phoenix Curb Machine.”
Id. at ¶ 11. When Plaintiffs purchased the
Phoenix Curb Machine from Contech, Ketch was the sales
representative employed by Contech. Id. at ¶ 8.
This lawsuit involves a dispute that arises out of the sale
of this Phoenix Curb Machine. Plaintiffs assert claims of
fraudulent inducement, negligent misrepresentation, and
breach of express warranty. Defendants move to dismiss, or in
the alternative to stay proceedings and compel arbitration,
on the ground that the dispute is subject to mandatory
Plaintiffs purchased the Phoenix Curb Machine at issue, the
parties entered into a written sales agreement
(“Agreement”) that included the following
a. This Agreement, and all matters arising out of or relating
to this agreement, shall be governed by the laws of the State
of Oregon, County of Multnomah (exclusive of conflict of laws
principles) . . . .
b. Any legal action or proceeding relating to this Agreement
shall be instituted solely in a state or federal court in
Portland, Oregon. Company and Customer agree to submit to the
jurisdiction of, and agree that venue is proper in, these
courts in any such legal action or proceeding.
. . . .
11. DISPUTE RESOLUTION
a. Dispute resolution between Company and Customer: Company
and Customer [a]gree that all claims, controversies and
disputes between them (hereinafter collectively referred to
as “Claims”), relating directly or indirectly to
this Equipment Sales Agreement shall be resolved in
accordance with the procedures set forth herein.
b. Company and Customer agree that Claims between them shall
be submitted to mediation either through: (1) the special
mediation program administered by Arbitration Services of
Portland Oregon or, (2) any other impartial private
mediator(s) or program(s) so long as such services are
available in Multnomah County, Oregon as selected by the
c. All Claims that have not been resolved by mediation, or
otherwise, shall be submitted to final and binding private
arbitration in accordance with Oregon Laws. . . . By
consenting to this provision Company and Customer are
agreeing that disputes arising under this Agreement shall be
heard and decided by one or more neutral arbitrators and
Company and Customer are giving up the right to have the
matter tried by judge or jury. The right to appeal an
arbitration decision is limited under Oregon law.
ECF 25 at 13, 15.
the Federal Arbitration Act (“FAA”), a provision
in “a contract evidencing a transaction involving
commerce” that agrees to settle disputes arising out of
that transaction through arbitration “shall be valid,
irrevocable, and enforceable, save upon such grounds as exist
at law or in equity for the revocation of any
contract.” 9 U.S.C. § 2. “Involving
commerce” is defined broadly and neither party disputes