Northwest Earthmovers Inc v. Federal Deposit Insurance Corporation

Filing 13

ORDER striking 9 Motion to Dismiss; granting 12 Stipulated Motion to Stay Case after Amended Complaint is filed on or before 4/19/10, signed by Judge Ronald B. Leighton.(DN)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 follows: 1.

Honorable Ronald B. Leighton

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA NORTHWEST EARTHMOVERS, INC., an Oregon corporation, Plaintiff, v. FEDERAL DEPOSIT INSURANCE CORPORATION, as Receiver for The Bank of Clark County, Defendant. Case No. C09-5795-RBL STIPULATED MOTION TO ALLOW AMENDMENT AND TO STAY CASE NOTE ON MOTION CALENDAR: Wednesday, April 7, 2010

I. STIPULATION AND MOTION

The parties, through their undersigned counsel, hereby stipulate as

Defendant Federal Deposit Insurance Corporation in its capacity

as Receiver for the Bank of Clark County ("FDIC") has moved to dismiss the complaint of plaintiff Northwest Earthmovers, Inc. ("NEI") for lack of subject matter jurisdiction and/or abstention. Dkt. No. 9. That motion is currently noted for consideration on April 23, 2010, and the Court has abrogated the case schedule while that motion is pending. Dkt. No. 11.

Certificate of Service - 1

AT T O R N E Y S AT L A W TELEPHONE: [phone] T W O UNI O N S Q U A R E 6 0 1 UNI O N ST R E E T SE A T T L E , W A S H I N G T O N 9 8 1 0 1 - 2 3 5 2

MILLER NASH LLP

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

2.

The parties have discussed how to resolve this matter most

efficiently, and agree as follows. 3. The FDIC hereby withdraws its pending Motion to Dismiss [Dkt.

No. 9], without prejudice to refiling that motion or a similar motion if necessary. NEI agrees not to object to such new filing if it becomes necessary as discussed below. 4. On or before April 19, 2010, plaintiff shall file an amended

complaint. The FDIC agrees not to object to or oppose the filing of such amended complaint. 5. Upon the filing of that amended complaint, the parties jointly

request that this action be stayed in its entirety, but not dismissed, to allow plaintiff to continue to pursue its remedies in the pending state law construction lien foreclosure in Clackamas County (Oregon) Circuit Court entitled Northwest Earthmovers, Inc. v. M.B. Custom Homes and Development, et al., Case No. CV09040306 (the "Foreclosure Action"). 6. The FDIC believes that the resolution of the Foreclosure Action

will render this action moot. Plaintiff NEI agrees that may be the outcome, but is not certain of that yet, and so wants the Court to stay, but not dismiss, the case at this juncture. 7. The parties agree to file with the Court regular status reports

regarding the status of Foreclosure Action, and the remaining need for this action. The parties propose that the first such status report be filed in one year, and subsequent reports be filed every six months thereafter or as the Court may otherwise order. 8. Upon thirty (30) days written notice to the opposing party, either

party may move to have the stay lifted 9. Except as otherwise noted, this stipulation is without prejudice to

the rights, claims or defenses of either party.

Certificate of Service - 2
()

AT T O R N E Y S AT LAW TELEPHONE: [phone] T W O UNI O N S Q U A R E 6 0 1 UNI O N ST R E E T SE A T T L E , W A S H I N G T O N 9 8 1 0 1 - 2 3 5 2

MILLER NASH LLP

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

So Stipulated this 7th day of April, 2010. DUNN CARNEY HIGGINS & TONGUE, LLP s/William R. Joseph William R. Joseph, WSB No. 39934 [e-mail] Attorneys for Plaintiff Northwest Earthmovers, Inc. MILLER NASH LLP

s/Brian W. Esler Brian W. Esler, WSB No. 22168 [e-mail] Attorneys for Defendant Federal Deposit Insurance Corporation, as Receiver for The Bank of Clark County

Certificate of Service - 3
()

AT T O R N E Y S AT LAW TELEPHONE: [phone] T W O UNI O N S Q U A R E 6 0 1 UNI O N ST R E E T SE A T T L E , W A S H I N G T O N 9 8 1 0 1 - 2 3 5 2

MILLER NASH LLP

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 SO ORDERED this 8th day of April, 2010.
II. ORDER

Based upon the above stipulation, IT IS SO ORDERED that (1) the FDIC's motion to dismiss [Dkt. No. 9] is hereby taken off the docket; (2) plaintiff NEI may file an amended complaint on or before April 19, 2010; and (3) thereafter, this matter will be stayed, but not dismissed. It is further ORDERED that the parties shall submit a joint status report on or before April 19, 2011, which report shall inform the Court regarding the status of the Foreclosure Action and the continued need for this action. The parties shall submit similar status reports every six (6) months thereafter. If at any time, the resolution of the Foreclosure Action has rendered this action moot or unnecessary, the parties shall so inform the Court as soon as possible so that this action may be dismissed. Either party may move to resume this action; however, the moving party shall provide written notice to the opposing party of its intent to so move at least thirty (30) days prior to filing and serving any such motion.

A

RONALD B. LEIGHTON UNITED STATES DISTRICT JUDGE

Certificate of Service - 4
()

AT T O R N E Y S AT LAW TELEPHONE: [phone] T W O UNI O N S Q U A R E 6 0 1 UNI O N ST R E E T SE A T T L E , W A S H I N G T O N 9 8 1 0 1 - 2 3 5 2

MILLER NASH LLP