Baoding Tianwei Group Co LTD v. PacifiCorp, No. 3:2007cv00862 - Document 124 (D. Or. 2010)
Court Description: OPINION AND ORDER: The court denies the motion to lift the stay 109 at this time, and denies Super Powers motion to dismiss its claims against Baoding without prejudice 115 . At the request of the parties, the court will order the parties to attend a mandatory, in-person settlement conference. (see formal opinion and order). Signed on 1/21/2010 by Magistrate Judge Dennis J. Hubel. (kb)
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1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF OREGON 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 BAODING TIANWEI GROUP CO., LTD., a foreign entity, ) ) ) Plaintiff, ) ) v. ) ) PACIFICORP, an Oregon ) corporation, ) ) Defendant. ) ) PACIFICORP, an Oregon ) corporation, ) ) Third Party Plaintiff, ) ) v. ) ) WINBO INTERNATIONAL ) CORPORATION, a California ) corporation, and SUPER ) POWER EQUIPMENT CO., a ) California corporation, ) ) Third Party Defendant. ) ______________________________) SUPER POWER EQUIPMENT CO., ) WINBO INTERNATIONAL ) CORPORATION, ) ) Counterclaimants, ) ) v. ) 27 28 OPINION AND ORDER Page 1 No. CV 07-862-HU OPINION AND ORDER 1 2 BAODING TIANWEI GROUP CO., ) ) Counter Defendant. ) ______________________________) 3 4 5 6 7 8 9 10 Renee R. Stineman John R. Barhoum Dunn Carney Allen Higgins & Tongue 851 S.W. Sixth Avenue, Suite 1500 Portland, Oregon 97204 Attorneys for Baoding Tianwei Group R. Scott Douglas David Ismay Farella Braun + Martel 235 Montgomery Street, 17th Floor San Francisco, California 94104 12 Angela M. Otto Stewart Sokol & Gray 2300 S.W. First Avenue, Suite 200 Portland, Oregon 97201 Attorneys for Winbo International, Super Power Equipment 13 HUBEL, Magistrate Judge: 11 14 The matters before the court are the motion by Baoding Tianwei 15 Group (Baoding) to lift the stay imposed by the court on September 16 10, 17 counterclaimants to compel arbitration, and the motion by Super 18 Power Equipment (Super Power) under Rule 41(a)(2) of the Federal 19 Rules of Civil Procedure to dismiss its claims against Baoding 20 without prejudice (doc. #115). 2008 (doc. #109), 21 22 pursuant to granting a motion by Procedural Background Baoding filed this action on June 11, 2007, against 23 Pacificorp, alleging that Pacificorp had not paid in full for two 24 electrical transformers purchased from Baoding and asserting claims 25 for breach of contract. On October 19, 2007, the court granted 26 Pacificorp s motion to join Winbo International Corporation (Winbo) 27 28 OPINION AND ORDER Page 2 1 and Superpower Equipment Company (Super Power) as defendants (doc. 2 # 28). On March 14, 2008, Winbo and Super Power filed counterclaims 3 against Baoding for breach of contract, contribution, indemnity and 4 declaratory relief. (Doc. # 43). On the same day, Winbo and Super 5 Power filed a motion to stay and compel arbitration. (Doc. # 44). 6 On March 28, 2008, Pacificorp filed a motion for summary judgment. 7 (Doc. # 49). On April 10, 2008, while the motion to stay was 8 pending, Baoding filed a reply to Winbo and Superpower s answer and 9 counterclaims, but did not assert any claims against them, instead 10 reserving all such claims. (Doc. # 64). 11 In an Opinion and Order entered on September 10, 2008, the 12 court granted Pacificorp s motion for summary judgment, holding 13 that there was no issue of fact to be resolved and Pacificorp had 14 met its obligations to Baoding. (Doc. # 94). In the same Opinion 15 and Order, the court also granted Super Power s motion to stay the 16 action and compel arbitration, based on an agreement between 17 Baoding and Super Power to arbitrate the disputes between them by 18 referring such disputes to the Chinese International Economic and 19 Trade Arbitration Commission. Id. On December 4, 2008, the court 20 entered an order staying Super Power s claims against Baoding, the 21 only claims left in this case, pending arbitration (doc. #98). 22 Since entry of the Opinion and Order of September 10, 2008, 23 neither 24 proceedings. Baoding, nor 25 26 Power has commenced arbitration Discussion Baoding now moves the court to lift the stay, on the ground 27 28 Super OPINION AND ORDER Page 3 1 that Super Power s failure to commence an arbitration proceeding 2 since entry of the stay constitutes a waiver of Super Power s right 3 to arbitrate any disputes with Baoding. Baoding asserts that unless 4 the stay is lifted, it will have no forum in which to assert claims 5 claims against Super Power for money allegedly due from Super 6 Power. Super Power has filed a motion to dismiss without prejudice 7 the counterclaims it brought against Baoding. 8 The court denies the motion to lift the stay (doc. # 109) at 9 this time, and denies Super Power s motion to dismiss its claims 10 against Baoding without prejudice (doc. # 115). Baoding, Winbo and 11 Super Power are ordered to refer all their disputes to the Chinese 12 International 13 arbitration within 30 days of the date of this order. If the 14 parties have not referred their dispute within that time, the court 15 will reconsider a renewed motion from Baoding to lift the stay, and 16 permit Baoding to file its proposed claims against Super Power, if 17 Baoding can explain to the court 1) why those proposed claims 18 should not be dismissed with prejudice for failure to prosecute, 19 and 2) why it should not be compelled to arbitrate those proposed 20 claims. The court will also, at that time, entertain a renewed 21 motion from Super Power to dismiss its counterclaims against 22 Baoding without prejudice, if Super Power can explain to the court 23 why those counterclaims should not be dismissed with prejudice for 24 failure to prosecute. Economic and Trade Arbitration Commission for 25 At the request of the parties, the court will order the 26 parties to attend a mandatory, in-person settlement conference with 27 28 OPINION AND ORDER Page 4 1 2 a judge of this court if the following conditions are satisfied: 1) within 30 days from entry of this order, each party must 3 file written confirmation that it will send at least one 4 of its officers or employees having full authority to 5 bind that entity to a settlement of all disputes between 6 Baoding, Winbo and Super Power; 7 2) the confirmation must state that the person attending can 8 settle for any amount of money without the need to call 9 others not in attendance; and 10 3) 11 12 the confirmation must contain an agreement that the conference can take place in Eugene or Portland. 4) If Winbo and Super Power do not intend to send separate 13 representatives, 14 representative can bind both of them to a settlement. 15 they must confirm that their IT IS SO ORDERED. 16 17 Dated this 21st day of January , 2010. 18 19 /s/ Dennis James Hubel 20 Dennis James Hubel United States Magistrate Judge 21 22 23 24 25 26 27 28 OPINION AND ORDER Page 5
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