Bauer v. Bank of America N.A. et al

Filing 14

ORDER: Based on the stipulation of the parties, Defendant's Motion to Dismiss 5 is Granted in Part. Plaintiff's Third Claim for Relief, for negligent misrepresentation, is Dismissed with prejudice. All of Plaintiffs other claims are Dismissed without prejudice. Signed on 4/5/16 by Magistrate Judge Paul Papak. (gm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION

Civ. No. 3:16-cv-00266-PK

THOMAS BAUER,
Plaintiff,

ORDER

v.
BANK OF AMERICA, NA;
JPMORGAN CHASE BANK,
NA,
Defendants.

PAPAK, Magistrate Judge.
This matter comes before the Comt on Defendants' Motion to Dismiss. ECF Dkt. #5.
The parties appeared for oral argument on April 5, 2016, at 10:00 a.m. and reached the following
stipulations:
First, the patties stipulate that Plaintiffs Third Claim for Relief, for negligent
misrepresentation, should be dismissed with prejudice.
Second, the parties agree that Plaintiffs remaining claims are more properly litigated in
the earlier-filed Multnomah County Circuit Comt case Bank ofAmerica National Association v.

Thomas L. Bauer et al., Case No. 121216501. In June 2013, Plaintiff filed an Answer and

Page I - ORDER

Counterclaim in that case, Robinson Deel. Ex. 1, and that counterclaim remains pending before
the state court. The parties agree that there are no compulsory counterclaims under Oregon law,
but that Plaintiffs counterclaim in the ongoing state court case exercises a potentially preclusive
effect on Plaintiffs claims in this case. See State ex rel. English ex rel. Sellers v. Multnomah
Cty., 348 Or. 417, 433 n.11 (2010) ("[I]f the defendant actually raises a counterclaim in the first

action, the rule of bar applies as though the defendant was a plaintiff in the first action."). The
parties stipulate to the dismissal of Plaintiffs remaining claims without prejudice, so that
Plaintiff can seek leave to amend the counterclaim in Bank of America National Association v.
Thomas L. Bauer et al., Case No. 121216501.

Therefore, based on the stipulation of the parties, Defendant's Motion to Dismiss, ECF
Dkt. #5, is GRANTED in pmt.

Plaintiffs Third Claim for Relief, for negligent

misrepresentation, is DISMISSED with prejudice.

All of Plaintiffs other claims are

DISMISSED without prejudice.
IT IS SO ORDERED and DATED this 5th day of April 2016.

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PAULPAPAK
United States Magistrate Judge

Page 2 - ORDER