United States District Court, W.D. Washington, Seattle
ORDER ON MOTIONS TO DISMISS
J. Pechman United States Senior District Judge.
above entitled Court, having received and reviewed:
Defendants' Motions to Dismiss (Dkt. Nos. 87, 88, 89), 2.
Plaintiff's Responses to Motions to Dismiss (Dkt. Nos.
94, 95), 3. Defendants' Replies in Support of Motions to
Dismiss (Dkt. Nos. 97, 99, 100), all supporting declarations
and exhibits, and relevant portions of the record, rules as
ORDERED that Defendant Waldun Forest Products Ltd.'s FRCP
12(b)(2) motion is DENIED.
ORDERED that the FRCP 12(b)(6) motions to dismiss the Sherman
Act claim against all Defendants are GRANTED.
FURTHER ORDERED that the motion to dismiss the breach of
contract claim against Defendant Cedar Shake & Shingle
Bureau is DENIED.
Cedar Shake & Shingle Bureau (“CSSB”) is the
only trade association serving the cedar shake and shingle
industry. ¶ 19. The organization created, promotes and
regulates its “Certi-Label”™ labeling
program, a quality control rating which grades different
varieties of shakes and shingles, and which Plaintiff alleges
has become the standard in the “high-end” cedar
shake and shingle market. ¶¶ 2, 3.
Waldun Forest Products Ltd. (“Waldun”) and
Anbrook Industries Ltd. (“Anbrook”) are two of
the largest mills in the industry and Plaintiff alleges that
they have led a consortium of the larger cedar shake and
shingle member mills through a series of maneuvers within
CSSB intended to consolidate their power, fix prices on their
products, and eliminate bureau members attempting to price
their products more competitively. ¶ 6. In a section of
the FAC labeled “The CSSB/Waldun/Anbrook Conspiracy to
Restrain Trade, ” Plaintiff alleges a series of
“anticompetitive actions” which include reducing
the number of Board members, defeating both term limits on
CSSB directors and attempts to eliminate the weighted voting
system which favors the higher-producing mills, and granting
the Board chair (currently the president and CEO of Anbrook)
the right to vote on all matters (instead of only voting to
break ties). ¶ 28.
to Plaintiff, this anti-competitive conspiracy culminated in
the “recusal” of its representative from the
Bureau's Board of Directors and the company's illegal
termination from the CSSB on December 21, 2018, an action
which Plaintiff alleges was undertaken under false pretenses
and in violation of the Membership Agreement and the
Bureau's bylaws. ¶¶ 29-41. That termination was
preceded by a December 5, 2018 statement allegedly made by
Curtis Walker (president and CEO of Waldun) to a third party
that “CSSB member mills should hold their prices at
consistent levels” and that “we just need to get
rid of [the head of S&W].” ¶ 38.
has filed suit against all three Defendants for a violation
of § 1 of the Sherman Act (a conspiracy in restraint of
trade), and against Defendant CSSB for breach of contract
related to its removal from the trade association. The
complaint was originally filed on February 13, 2019 (Dkt. No.
1); Plaintiff later filed a First Amended Complaint
(“FAC;” Dkt. No. 68) which is the subject of
these dismissal motions. All three Defendants move for
dismissal under FRCP 12(b)(6); co-Defendants Anbrook and
Waldun have joined in CSSB's motion in addition to filing
their own. Defendant Waldun also asserts a FRCP 12(b)(2)
claim that this Court lacks personal jurisdiction over it.
FRCP 12(b)(6), the Court may dismiss a complaint for
"failure to state a claim upon which relief can be
granted." In ruling on a motion to dismiss, the Court
must construe the complaint in the light most favorable to
the non-moving party. Livid Holdings Ltd. v. Salomon
Smith Barney, Inc., 416 F.3d 940, 946 (9th Cir. 2005).
The Court must accept all well-pleaded allegations of
material fact as true and draw all reasonable inferences in
favor of the plaintiff. Wyler Summit P'ship v. Turner
Broad. Sys., 135 F.3d 658, 661 (9th Cir. 1998).
is appropriate where a complaint fails to allege "enough
facts to state a claim to relief that is plausible on its
face." Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). A claim is plausible on its face "when
the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged." Aschcroft v.
Iqbal, 129 S.Ct. 1937, 1949 (2009). As a result, a
complaint must contain "more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do." Twombly, 550 U.S.
the Court must address Plaintiff's claim that neither of
the motions to dismiss filed by Anbrook or Waldun are
“timely.” FRCP 15(a)(3) requires an answer or
responsive pleading within 14 days of the filing of a
complaint. In ruling on Plaintiff's earlier request for a
preliminary injunction against CSSB, the Court extended the
responsive deadline to 30 days from the date of the ruling
(see Dkt. No. 62), a ruling which Plaintiff contends
only pertained to CSSB. The motions to dismiss from
co-Defendants Anbrook and Waldun were filed 20 days after the
filing of Plaintiff's FAC and Plaintiff argues that the
Court should strike the motions based on the six-day delay.
request is denied. Waldun and Anbrook maintain that they
thought the extension applied to them as well;
Plaintiff's only evidence to the contrary is a minute
entry in the docket stating that “Defendant's
[singular] answer or response to Plaintiff's
complaint due 30 days following the issuance of this
ruling.” Id. The Court does not consider this
definitive proof of Plaintiff's argument; it is neither a
transcript of the Court's oral ruling nor a written
order. A six-day filing delay, even if based on a
misunderstanding, should not determine a substantive motion
such as this.
12(b)(2): Personal jurisdiction (Waldun only)
makes no argument that there is general jurisdiction over
Waldun; i.e., the company is neither incorporated in
Washington nor has its principle place of business in the
does assert that the Court has specific jurisdiction over
Waldun, however, an assertion which requires it to establish
Waldun “purposely directed activities” at the
forum or availed itself of the privilege of conducting
claim against Waldun “arises out of or relates to
Defendant's forum-related activities;”
exercise of jurisdiction “comports with fair play and
Purcell LLP v. Recordon & Recordon, 606 F.3d 1124,