West Linn Paper Company et al v. Alberta-Pacific Forest Industries, Inc. et al

Filing 152

Opinion and Order. The Court DENIES 605 Canada's Motions (# 70 , # 108 ) for Summary Judgment, GRANTS Canfor's Cross-Motion (# 79 ) for Summary Judgment as to Canfor's Counterclaim No. 4 against West Linn for breach of contract, and D ENIES Canfor's Cross-Motion for Summary Judgment in all other respects. The Court DIRECTS the parties to confer and to file no later than October 29, 2018, a joint proposed case-management plan that includes mutually agreeable dates for trial and an estimate of the length of trial. On receipt of the parties' joint proposed case-management plan, the Court will set a telephone schedulingconference with the parties. IT IS SO ORDERED. Signed on 10/19/18 by Judge Anna J. Brown. (jy)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

WEST LINN PAPER COMPANY;
COLUMBIA RIVER LOGISTICS,
INC.; and 6200605 CANADA,
INC.,
Plaintiffs,
v.
ALBERTA-PACIFIC FOREST
INDUSTRIES, INC.; CANFOR PULP
AND PAPER SALES, LTD.;
CARGILL, INC.; MERUBENI
AMERICA CORPORATION; and
RESOLUTE FP, INC.,
Defendants.
CANFOR PULP AND PAPER SALES
LTD.,
Third-Party Plaintiff,
v.
WELLS FARGO BANK, N.A., and
BELGRAVIA PULP HOLDINGS, INC.,
Third-Party Defendants.

JOSEPH M. VANLEUVEN
NICHOLAS A. KAMPARS
BLAKE J. ROBINSON
Davis Wright Tremaine LLP
1 - OPINION AND ORDER

3:17-cv-01880-BR
OPINION AND ORDER

1300 S.W. Fifth Ave., Suite 2400
Portland, OR 97201
[phone]
Attorneys for Plaintiff West Linn Paper Company
and Columbia River Logistics, Inc.
TARA J. SCHLEICHER
JASON M. AYRES
Farleigh Wada Witt
121 S.W. Morrison St., Suite 600
Portland, OR 97204
[phone]
ROBERT J. KEACH
LINDSAY ZAHRADKA MILNE
ADAM R. PRESCOTT
Bernstein, Shur, Sawyer & Nelson, P.A.
100 Middle St.
P.O. Box 9729
Portland, ME 04104
[phone]
Attorneys for Plaintiff 6200605 Canada, Inc., and
Third-Party Defendant Belgravia Pulp Holdings, Inc.
CLIFFORD S. DAVIDSON
Sussman Shank, LLP
1000 S.W. Broadway St., Suite 1400
Portland, OR 97205
[phone]
Attorneys for Defendant Alberta-Pacific Forest
Industries, Inc.
CONDE T. COX
Law Office of Conde Cox
1001 S.W. Fifth Ave., Suite 1100
Portland, OR 97204
[phone]
KEITH Y. BOYD
The Law Office of Keith Y. Boyd
724 S. Central Ave., Suite 106
Medford, OR 97501
[phone]
Attorneys for Defendant/Third-Party Plaintiff Canfor
Pulp and Paper Sales, Ltd.

2 - OPINION AND ORDER

BROWN, Senior Judge.
This matter comes before the Court on the Motion (#70) for
Summary Judgment and Revised Motion (#108) for Summary Judgment
filed by Plaintiff 6200605 Canada, Inc. (605 Canada) and the
Cross-Motion (#79) for Summary Judgment filed by Defendant Canfor
Pulp and Paper Sales, Ltd.1
Plaintiffs and Defendant Alberta-Pacific Forest Industries,
Inc. (Al-Pac) settled their dispute before the Court’s resolution
of 605 Canada’s Motion, and, therefore, the Court DENIES as moot
that part of 605 Canada’s Motion against Al-Pac.
For the reasons that follow, the Court DENIES 605 Canada’s
Motion against Canfor and GRANTS in part and DENIES in part
Canfor’s Cross-Motion against 605 Canada.

BACKGROUND
The following facts are taken from the Joint Statements of
Undisputed Material Facts (#100, #101) and the materials
submitted by the parties regarding the Motions and are undisputed
unless otherwise noted.

Because the record is sufficiently

developed to resolve these matters, the Court concludes oral
argument is unnecessary.
I.

Factual Background

1

Plaintiffs previously dismissed Defendants Cargill, Inc.;
Marubeni America Corporation; Resolute FP, Inc.; and Wells Fargo
Bank.
3 - OPINION AND ORDER

Plaintiff West Linn Paper Company operated a paper mill in
Clackamas County, Oregon.

As part of its mill operations West

Linn purchased wood-pulp products from, among others, Al-Pac and
Canfor.
Plaintiff Columbia River Logistics, Inc. (CRL) is located in
Vancouver, Washington, and provides storage, warehousing,
transportation, and loading/unloading logistical services for
wood-pulp products.
Brian Konen is the president of West Linn; CRL; and
Belgravia Investments, Inc., the parent company of Third-Party
Defendant Belgravia Pulp Holdings, Inc. (BPH).
As a result of agreements between West Linn, 605 Canada,
CRL, BPH, Wells Fargo, and other entities that are not parties to
this case, 605 Canada obtained and perfected security interests
in all real and personal property belonging to West Linn and BPH
obtained and perfected its security interests in West Linn’s
property.

In January 2016 Canfor executed an agreement (Canfor
Agreement) to sell West Linn 10,000 metric tons of wood pulp per
calendar year in monthly shipments of 500 metric tons from
January through April 2016 and 1,000 metric tons for May through
December 2016.

Paragraph 5 of the Canfor Agreement provides:

“Invoicing and Method and Place of Delivery:
Mill in West Linn, OR. . . .
4 - OPINION AND ORDER

CPT [West Linn’s]

Product will be invoiced upon

departure from [CRL], or as appropriate.”
Between August 10, 2017, and October 12, 2017, Canfor
shipped wood pulp (Canfor Inventory) to CRL pursuant to the
Canfor Agreement with West Linn.
On October 16, 2017, however, West Linn ceased operations.
On October 19, 2017, Canfor requested CRL allow removal of
the Canfor Inventory from CRL, but CRL refused and indicated 605
Canada and BPH, as secured creditors of West Linn, asserted
security interests in the Canfor Inventory.
In response to notice from West Linn that it would be
discontinuing operations, Canfor sent a letter to West Linn and
CRL on October 20, 2017, in which Canfor stated the Canfor
Inventory was in the process of being delivered or had been
delivered.

Canfor demanded delivery of the Canfor Inventory to

be stopped and/or the Canfor Inventory to be returned to Canfor.
West Linn and CRL did not release the Canfor Inventory.
On January 2, 2018, the Court authorized the deposit by
Canfor of $1,200,000 with the Clerk of Court that represents the
value of the Canfor Inventory as stipulated by the parties, and
the physical goods were released to Canfor by CRL/West Linn with
the approval of 605 Canada and BPH.

It is undisputed that the

Canfor Inventory was not physically moved from CRL until sometime
after January 9, 2018.
The parties agree during 2016 and 2017 Canfor sold to West
Linn other wood pulp that is not part of the Canfor Inventory.
The parties also agree West Linn is indebted to Canfor for unpaid
5 - OPINION AND ORDER

invoices (Schedule A - Unpaid Invoices) in the amount of
$621,660.772 for such wood-pulp shipments.
II.

Procedural Background
On November 22, 2017, Plaintiffs filed a Complaint (#1) for

Declaratory Judgment.

Plaintiffs allege Canfor asserts an

interest in the goods Canfor sold to West Linn that were held by
CRL and that are now in the form of the funds held by the Clerk
of Court.

Plaintiffs seek a determination that any of Canfor’s

interests therein are inferior to the security interests of 605
Canada and that West Linn and CRL are entitled to liquidate the
goods and to remit the proceeds to 605 Canada free of any
interests of Canfor.
As noted, on December 19, 2017, the parties stipulated (#29)
the value of the Canfor Inventory was $1,200,000; that Canfor
could deposit funds in that amount with the Clerk of Court; and
that Canfor could take possession of the Canfor Inventory for
sale to other third parties.

Thereafter on January 2, 2018, the

Court approved (Order #34) the parties’ Stipulation and
authorized Canfor to deposit funds with the Clerk of Court to be
held pending resolution of Plaintiffs’ Claims.

On January 9,

2018, Canfor deposited $1,200,000 (the Deposit) with the Clerk of
Court.

Subsequently, the Canfor Inventory was released to Canfor

by CRL/West Linn.
On March 6, 2018, Canfor filed an Answer, Counterclaims, and
Third-Party Claims (#48) in response to Plaintiffs’ Complaint.
Canfor asserted Counterclaims for declaratory relief, conversion,
6 - OPINION AND ORDER

and breach of contract against Plaintiffs and Third-Party Claims
against BPH.
On May 1, 2018, 605 Canada filed a Motion (#70) for Summary
Judgment on its claims against Canfor.
On May 25, 2018, Canfor filed a Cross-Motion (#79) for
Summary Judgment on its Counterclaims against West Linn, 605
Canada, and CRL and Third-Party Claims against BPH.
On June 12, 2018, the Court directed the parties to file
updated or amended memoranda in support of their respective
Motions.

Order #99.

On July 9, 2018, 605 Canada filed a Revised Motion (#108)
for Summary Judgment and Canfor filed an updated Memorandum
(#105) in support of its Cross-Motion for Summary Judgment.
On September 4, 2018, following completion of briefing by
the parties, the Court took 605 Canada’s Motions and Canfor’s
Cross-Motion under advisement.
STANDARDS
Summary judgment is appropriate when “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”

Washington Mut. Ins. v. United

States, 636 F.3d 1207, 1216 (9th Cir. 2011).
Civ. P. 56(a).

See also Fed. R.

The moving party must show the absence of a

dispute as to a material fact.

Rivera v. Philip Morris, Inc.,

395 F.3d 1142, 1146 (9th Cir. 2005).

In response to a properly

supported motion for summary judgment, the nonmoving party must
7 - OPINION AND ORDER

go beyond the pleadings and show there is a genuine dispute as to
a material fact for trial.
. . . .

Id.

"This burden is not a light one

The non-moving party must do more than show there is

some 'metaphysical doubt' as to the material facts at issue."

In

re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010)
(citation omitted).
A dispute as to a material fact is genuine "if the evidence
is such that a reasonable jury could return a verdict for the
nonmoving party."

Villiarimo v. Aloha Island Air, Inc., 281 F.3d

1054, 1061 (9th Cir. 2002)(quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)).

The court must draw all

reasonable inferences in favor of the nonmoving party.
v. Verity, Inc., 606 F.3d 584, 587 (9th Cir. 2010).

Sluimer

"Summary

judgment cannot be granted where contrary inferences may be drawn
from the evidence as to material issues."

Easter v. Am. W. Fin.,

381 F.3d 948, 957 (9th Cir. 2004)(citation omitted).

A “mere

disagreement or bald assertion” that a genuine dispute as to a
material fact exists “will not preclude the grant of summary
judgment.”

Deering v. Lassen Cmty. Coll. Dist., No. 2:07-CV-

1521-JAM-DAD, 2011 WL 202797, at *2 (E.D. Cal., Jan. 20, 2011)
(citing Harper v. Wallingford, 877 F.2d 728, 731 (9th Cir.
1989)).

When the nonmoving party's claims are factually

implausible, that party must "come forward with more persuasive
evidence than otherwise would be necessary."
8 - OPINION AND ORDER

LVRC Holdings LLC

v. Brekka, 581 F.3d 1127, 1137 (9th Cir. 2009)(citation omitted).
The substantive law governing a claim or a defense
determines whether a fact is material.

Miller v. Glenn Miller

Prod., Inc., 454 F.3d 975, 987 (9th Cir. 2006).

If the

resolution of a factual dispute would not affect the outcome of
the claim, the court may grant summary judgment.

Id.

DISCUSSION
I.

605 Canada’s Motion for Summary Judgment against Canfor
605 Canada seeks summary judgment on its claim for

declaratory judgment against Canfor.

605 Canada asserts its

security interest attached to the Canfor Inventory at the time
the Canfor Inventory was delivered to CRL and was superior to
Canfor’s interest.

605 Canada also asserts CRL acted as West

Linn’s agent for goods delivered to CRL; West Linn controlled
CRL; and, therefore, West Linn controlled the contents of the
warehouse.

According to 605 Canada, control requires more than

“bare possession,” but constructive possession is sufficient;
i.e., control does not require legal title.

Thus, when the

Canfor Inventory was delivered to CRL, 605 Canada asserts West
Linn had possession and control of the Canfor Inventory and 605
Canada’s security interest attached to the Canfor Inventory.
In response, Canfor contends the Canfor Inventory was only
warehoused at CRL rather than “sold” to West Linn.

Canfor points

to evidence that shows Canfor had a warehousing agreement with

9 - OPINION AND ORDER

CRL.

Canfor also notes paragraph 5 of the Canfor Agreement

provides:

“Invoicing and Method and Place of Delivery:

[West Linn’s] Mill in West Linn, OR . . . .

CPT

Product will be

invoiced upon departure from [CRL], or as appropriate.”

Based on

this provision and the fact that the Canfor Inventory was never
shipped to the mill in West Linn, Oregon, Canfor argues West Linn
did not obtain the requisite possession or control of the Canfor
Inventory.
605 Canada’s Evidentiary Objections to Canfor’s Response to
605 Canada’s Motion for Summary Judgment
605 Canada includes a Motion to Strike in its Reply in which
it objects to Canfor’s proffered evidence in opposition to 605
Canada’s Motion for Summary Judgment and, in any event, contends
the proffered evidence does not constitute sufficient admissible
evidence to raise genuine disputes of material fact.
Specifically, 605 Canada objects to several Declarations filed
by Canfor on the grounds that statements in the attached
Declarations or Exhibits are hearsay, are not based on personal
knowledge, are not authenticated, state legal conclusions, or are
not made under penalty of perjury.

For example, 605 Canada

objects to certain statements in the Declaration (#81) of Klaus
Gundermann, the Assistant Controller for the parent company of
Canfor.

Gundermann states his Declaration is based on his

personal knowledge that Canfor goods stored at CRL were Canfor
property and that Canfor goods were released to Canfor customers
only after prior approval by Canfor.

Gundermann also states use

of the term “CPT” in the Canfor Agreement indicates the seller
10 - OPINION AND ORDER

pays the cost of freight to the place of delivery specified by
the seller, which, in this case, was West Linn’s Mill in West
Linn, Oregon.

Canfor contends these statements are sufficient to

create a genuine dispute of material fact regarding ownership or
control of the Canfor Inventory.
As another example, 605 Canada objects to the Declaration
(#82) of Rosanna Lam, the Manager of Transportation Services for
Canfor.

Lam states her Declaration is based on her personal

knowledge and the emails attached to her Declaration were created
by her or sent to her as part of the regular business activities
of Canfor.

Lam also states she received an email from CRL

confirming the pricing for storage of Canfor goods at CRL and
confirming the “services currently [in 2016] provided for
Canfor” for “storage and distribution.”

Lam further states on

November 9, 2017, during an inspection of the Canfor Inventory
stored at CRL, she noted the Canfor Inventory had not been moved
or shipped to any other location and that CRL confirmed the
Canfor Inventory had not been moved or shipped to any other
location.
The Court has considered 605 Canada’s Objections and
concludes the Declarations of Gundermann and Lam are made under
penalty of perjury; that Gundermann and Lam each indicate their
statements are based on the personal knowledge and opinions of
the Declarant; and that, for the most part, the Declarations
are not based on hearsay and are properly authenticated.

The

Court, therefore, OVERRULES 605 Canada’s Objections to these
11 - OPINION AND ORDER

Declarations.
The Court also concludes these two Declarations
substantively constitute sufficient admissible evidence to raise
at this stage genuine disputes of material facts that preclude
summary judgment on 605 Canada’s Motion.

The Court will

determine in connection with trial any renewed evidentiary
motions and whether other proffered evidence is admissible.
Accordingly, the Court DENIES Plaintiff 605 Canada’s Motion
for Summary Judgment on its claim for declaratory judgment
against Defendant Canfor.
II.

Canfor’s Cross-Motion for Summary Judgment
Canfor alleges Counterclaims against Plaintiffs and third-

party claims against BPH.2

Canfor moves for summary judgment on

these claims and for denial of 605 Canada’s Motion for Summary
Judgment.
A.

Canfor’s Counterclaim No. 1 against all Plaintiffs for
Declaratory Judgment
In Canfor’s Counterclaim No. 1, Canfor seeks

declaratory judgment against all Plaintiffs that West Linn did
not acquire title or ownership of the Canfor Inventory; that a
sale of the Canfor Inventory pursuant to the Canfor Agreement did
not occur; and, therefore, that Canfor’s Deposit of $1,200,000
with the Clerk of Court should now be paid to Canfor.
As noted, whether the Canfor Inventory was stored at

3

As noted, Plaintiffs previously dismissed Third-Party
Defendant Wells Fargo Bank from this action.
12 - OPINION AND ORDER

CRL as part of Canfor’s warehouse account, whether the Canfor
Inventory was in the possession and control of West Linn at the
time it was delivered to CRL, and whether CRL was an agent for
West Linn are significant issues in this case.

As noted, Canfor

contends the terms of the Canfor Agreement required the goods to
be delivered to West Linn’s mill before West Linn obtained
possession and title.

In response, 605 Canada3 contends title is

irrelevant, that West Linn obtained possession and control over
the Canfor Inventory when it was delivered to CRL, and that 605
Canada’s security interest attached to the Canfor Inventory when
it was delivered to CRL.
Canfor notes the Canfor Agreement provides goods
subject to the agreement were to be shipped “CPT [West Linn’s]
mill in West Linn, OR” and “[p]roduct will be invoiced upon
departure from [CRL], or as appropriate.”

Canfor asserts there

is not any evidence that the Canfor Inventory was loaded for
shipment to West Linn’s mill at any time.

Canfor also points out

that the record reflects it paid CRL for storage services for
Canfor wood pulp and Canfor was required to approve any release
of stored goods before shipment of the wood pulp to any buyer.
On this record the Court concludes there are genuine
disputes of material fact that preclude declaratory judgment
against Plaintiffs on Canfor’s Counterclaim No. 1.

4

Accordingly,

CRL joined in each of 605 Canada’s arguments against
Canfor. CRL’s Resp. (#121). The Court notes West Linn only
responded to Canfor’s Motion regarding Counterclaim No. 4. West
Linn’s Resp. (#119).
13 - OPINION AND ORDER

the Court DENIES Canfor’s Cross-Motion as to Counterclaim No. 1.
B.

Canfor’s Counterclaim No. 2 against all Plaintiffs for
Stoppage
In the alternative to Counterclaim No. 1, Canfor

alleges in Counterclaim No. 2 that Canfor is entitled to a
judgment for reclamation or stoppage in transit of the Canfor
Inventory and for return of the Deposit because the Canfor
Inventory was in the process of being shipped to West Linn.
Canfor contends it sent a letter to CRL and West Linn on
October 20, 2017, requesting CRL to stop any delivery of goods to
West Linn and to return any such goods to Canfor.

Canfor asserts

this stoppage in transit prevented the transfer of title to West
Linn and, therefore, prevented the creation of any security
interest of 605 Canada and BPH in the Canfor Inventory.
605 Canada, however, contends a claim for reclamation
or stoppage only applies when the goods are “in transit.”

605

Canada asserts the Canfor Inventory at issue here was not in
transit and delivery was already complete when Canfor sent the
letter on October 20, 2017.

Thus, according to 605 Canada,

Canfor’s request for reclamation or stoppage was ineffective.
As noted, the Court has concluded there are genuine
disputes of material fact regarding the status of the Canfor
Inventory.

Until these issues are resolved, it is premature to

address dispositively Canfor’s Counterclaim No. 2 that is pled in
the alternative to Counterclaim No. 1.

In any event, as noted,

there are also genuine disputes of material fact regarding the
status of the Canfor Inventory that preclude summary judgment on
14 - OPINION AND ORDER

Canfor’s Counterclaim No. 2.

Accordingly, the Court DENIES

Canfor’s Cross-Motion as to Counterclaim No. 2.
C.

Canfor’s Counterclaim No. 3 against 605 Canada and
Canfor’s Third-Party Claim No. 1 against BPH for
Declaratory Judgment
In Canfor’s Counterclaim No. 3 against 605 Canada and

Third-Party Claim No. 1 against BPH, Canfor seeks declaratory
judgment that 605 Canada and BPH do not have liens on the Canfor
Inventory because West Linn did not obtain ownership or title to
the Canfor Inventory.
As noted, the Court has concluded there are genuine
disputes of material fact regarding the status of the Canfor
Inventory.

For that reason the Court concludes there are genuine

disputes of material fact that preclude summary judgment on
Canfor’s Counterclaim No. 3 against 605 Canada and Canfor’s
Third-Party Claim No. 1 against BPH.

Accordingly, the Court

DENIES Canfor’s Cross-Motion for Summary Judgment on these
Claims.
D.

Canfor’s Counterclaim No. 4 against West Linn for
Breach of Contract
In Counterclaim No. 4 Canfor alleges West Linn failed

to pay for other goods that were not part of the Canfor Inventory
and that Canfor sold to West Linn as itemized in “Schedule A”
attached to the Joint Statement of Undisputed Facts (#100).
Canfor seeks a judgment against West Linn for $621,660.72 in
unpaid invoices.

In the alternative, if the Court determines

Canfor is not entitled to the Deposit that Canfor submitted to
the Clerk of Court, Canfor seeks judgment against West Linn in
15 - OPINION AND ORDER

the amount of $1,821,660.72.
West Linn “does not dispute it owes Canfor $621,660.72
for these [Schedule A] invoices.”

West Linn Resp. (#119). Thus,

there is not a genuine dispute of material fact as to Canfor’s
breach-of-contract claim against West Linn.
On this record the Court concludes West Linn owes
Canfor $621,660.72 for unpaid invoices identified as Schedule A
goods, and, accordingly, the Court GRANTS Canfor’s Motion for
Summary Judgment on Counterclaim No. 4 for that amount of
damages.
E.

Canfor’s Counterclaim No. 5 against 605 Canada and CRL
and Canfor’s Third-Party Claim No. 2 against BPH for
Conversion
Canfor alleges claims for conversion in Counterclaim

No. 5 against 605 Canada and CRL and in Third-Party Claim No. 2
against BPH.

Canfor asserts it demanded CRL to release the

Canfor Inventory from CRL’s warehouse in October and November
2017.

At the direction of 605 Canada and BPH, however, CRL

refused to release the Canfor Inventory.

Thus, Canfor contends

the actions of 605 Canada, BPH, and CRL prevented Canfor from
removing the Canfor Inventory from CRL, which Canfor contends
constituted a conversion of Canfor’s property.
According to 605 Canada,4 however, its security
interest in the Canfor Inventory constitutes an affirmative
defense to Canfor’s claim of conversion.

5

CRL joined in 605 Canada’s Response. CRL Resp. (#121).
BPH did not file a response to Canfor’s Cross-Motion.
16 - OPINION AND ORDER

As noted, the Court has concluded there is a genuine
dispute of material fact as to whether the Canfor Inventory was
in the possession and control of West Linn when it was delivered
to CRL.

Thus, the Court concludes there is a genuine dispute of

material fact as to whether 605 Canada has a security interest in
the Canfor Inventory.

The Court, therefore, DENIES Canfor’s

Cross-Motion for Summary Judgment on its conversion claims.
F.

Canfor’s Argument regarding the Law-of-the Case
Doctrine
Canfor also asserts it is entitled to summary judgment

against Plaintiffs and BPH on the ground that West Linn did not
oppose Canfor’s Cross-Motion regarding Counterclaim No. 1 for
declaratory judgment, and, therefore, under the “law-of-the-case
doctrine” the Canfor Inventory was not sold to West Linn.

Canfor

does not cite any binding Ninth Circuit or Supreme Court
precedent to support its position, but instead Canfor relies on a
state-court decision from the Supreme Court of North Carolina
that “a decision on one issue does indeed bind all other parties
that are privies of the party against whom the determination is
made.”

Canfor Reply (#127) at 4.

The Court notes this issue was

raised for the first time in Canfor’s Reply in support of its
Cross-Motion for Summary Judgment, and, as a result, the opposing
parties were not required to and did not request the opportunity
to respond to this issue.

Because the North Carolina state-court

case cited by Canfor is not binding on this Court and, in any
event, does not appear to be helpful in resolving the issues in
this case, the Court concludes on this record that the law-of17 - OPINION AND ORDER

the-case doctrine does not apply in this matter as Canfor
contends.
G.

605 Canada’s Evidentiary Objections to Canfor’s CrossMotion
In its Response to Canfor’s Cross-Motion, 605 Canada

includes a Motion to Strike in which it objects to certain
evidence that Canfor proffered in support of its Cross-Motion.
Canfor relies on the same evidence proffered in opposition to 605
Canada’s Motion for Summary Judgment, and 605 Canada raises the
same or similar objections to that evidence.
As noted, the Court has considered 605 Canada’s Objections
to Canfor’s proffered evidence; finds there is sufficient
admissible evidence for the Court to conclude that genuine
disputes of material fact exist; and, therefore, OVERRULES 605
Canada’s Objections at this stage of the proceedings.
In summary, the Court GRANTS Canfor’s Cross-Motion for
Summary Judgment as to Canfor’s Counterclaim No. 4 against West
Linn for breach of contract and DENIES Canfor’s Cross-Motion for
Summary Judgment in all other respects on the ground that there
are genuine disputes of material fact that preclude summary
judgment.

CONCLUSION
For these reasons, the Court DENIES 605 Canada’s Motions
(#70, #108) for Summary Judgment, GRANTS Canfor’s Cross-Motion
(#79) for Summary Judgment as to Canfor’s Counterclaim No. 4

18 - OPINION AND ORDER

against West Linn for breach of contract, and DENIES Canfor’s
Cross-Motion for Summary Judgment in all other respects.
The Court DIRECTS the parties to confer and to file no later
than October 29, 2018, a joint proposed case-management plan that
includes mutually agreeable dates for trial and an estimate of
the length of trial.

On receipt of the parties’ joint proposed

case-management plan, the Court will set a telephone scheduling
conference with the parties.
IT IS SO ORDERED.
DATED this 19th day of October, 2018.

/s/ Anna J. Brown
ANNA J. BROWN
United States Senior District Judge

19 - OPINION AND ORDER