Case 3:18-cv-01795-HZ Document 21 Filed 02/08/19 Page 1 of 16

Chris er Lundb OSB No, 941084

Email: com
HAGL Y LLP
200 S.W. Market Street, Svite 1777
Portland, Oregon 9720I
Phone: (503)225-0777
Facsimile: (503) 225 -1257

Attorneys for Defendants Scott Miller,

Howard Gee and Boris Lutskovsky

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

(Portland Division)

CATALINBREAD, LLC,
CaseNo.: 3:18-cv-1795-HZ
Plaintiff,

DEFENDANTS SCOTT MILLER,

SCOTT MILLER, HOWARD GEE, BORIS HOWARD GEE, AND BOzuS
LUTSKOVSKY, and MICHAEL LUTSKOVSKY'S MOTION TO DISMISS
ERICKSON,
ORAL ARGUMENT REQUESTED
Defendants.

LR 7-1(a) COMPLIANCE

Pursuant to Local Rule 7-1(a), counsel for defendants Scott Miller, Howard Gee, and

Boris Lutskovsky (collectively, "defendants") made an unsuccessful good faith effort through a

telephone conference with plaintiff s counsel to resolve the disputed matters.

MOTIONS

Defendants move to dismiss plaintiff s First and Third Claims for Relief with prejudice

pursuant to Federal Rules of Civil Procedure 12(b)(6),8(a) and 9(b), and Plaintiffls Second,

Fourth, Fifth, Sixth, Seventh, and Eighth Claims for Relief pursuant to 28 U.S.C. $ 1367(c)(3),

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with leave to refile in state courl. In the alternative, defendants move to strike paragraphs a.5 and

a.6 of plaintiff s prayer for relief pursuant to Federal Rule of Civil Procedure 12(f). These

motions are based on plaintiff s First Amended Complaint, and the following memorandum.

MEMORANDUM OF AUTHORITIES

I. INTRODUCTION.

Plaintiff claims that in October of 2017 , defendants misused company resources and

plotted to form a competing business while still on its payroll. Now, more than ayear later,

plaintiff asks the court for a sweeping and highly anticompetitive permanent injunction

prohibiting defendants from ever again "[o]wning, managing or being employed by any business

engaged in the sale or distribution of guitar pedals." Plaintiff does not allege that any defendant

is contractually obligated not to compete, and the requested relief is not authorized by any of the

statutes plaintiff invokes. In fact, the Defend Trade Secrets Act ("DTSA") specifically prohibits

an injunction that would "prevent a person from entering into an employment relationship." i 8

U.S.C. S 1836(bX3XA). The complaint does not tether plaintiff s extraordinary request to any

legitimate business interest, and it appears to be included for purely punitive reasons.

Critically, plaintiff does not allege that defendants ever actually used any of its alleged

"trade secrets" in commerce, or that they disclosed plaintiff s alleged trade secrets to any third

pafty.Instead, plaintiff s misappropriation claim is apparently based on speculation that

defendants are secretly plotting to do so at some unknown future time. Tellingly, however,

plaintiff waited almost year after the alleged events at issue to file this lawsuit. Moreover,

plaintiff has never moved for a temporary restraining order or a preliminary injunction. Put

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simply, plaintiff has not acted with any of the urgency that one would expect given its highly

implausible claim that defendants pose an imminent threat to its business.

When plaintiff eventually filed the original complaint on October 9,2018, it omitted the

most basic facts to support its claims under the DTSA and the Computer Fraud and Abuse Act

("CFAA"). For example, plaintiff did not allege what "trade secrets" defendants allegedly

misappropriated. Nor did the complaint explain how the alleged theft injured plaintiff. This

omission is not surprising, given that plaintiff did not (and cannot) allege that defendants ever

actually formed a competing business or used any of the allegedly stolen trade secrets in

commerce. After defendants provided plaintiff with a draft motion to dismiss, plaintiff agreed to

amend its complaint.

Plaintiff filed the First Amended Complaint on January 25,2019. Notably, because the

First Amended Complaint sounds in fraud, plaintiff must satisfy both FRCP 8's notice pleading

standard and FRCP 9(b)'s heightened particularity requirement. Kearns v. Ford Motor Co., 567

F.3d 1 120, 1125 (9th Cir.2009) (pleading "as a whole" must satisfy Rule 9(b) where, as here,

plaintiff s claims are based on an alleged "unified course of fraudulent conduct"). Yet despite

two pleading attempts and more than a year to conduct its internal investigation, plaintiff still

cannot identify a single document that any defendant is accused of actually misappropriating.

Nor does the First Amended Complaint allege that defendants ever competed with plaintiff at all,

let alone that they used plaintiff s vaguely defined "trade secrets" for that purpose. Finally,

plaintiff inexplicably continues to insist that defendants violated the CFAA by using its

computers for an improper purpose, despite the Ninth Circuit's clear instruction that the Act

o'does
not extend to violations of use restrictions ." United Stqtes v. Nosal, 676 F .3d 854,863-64

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(9th Cir. 2012) (en banc); see also LVRC Holdings LLC v. Brekka,58l F.3d II27 (9thCir.2009)

(same).

The bottom line is that despite ample opportunity, plaintiff cannot state a plausible claim

against any defendant under either the DTSA or the CFAA. Because further amendment would

be futile, these claims should be dismissed with prejudice. Plaintiff s remaining state law claims

should also be dismissed, but with leave to refile in state court.

il. FACTUAL BACKGROUND.

Each of the four defendants' employment with plaintiff ended no later than October 26,

2017. Compl. fll] 3-6. With one exception, all of the alleged events occurred on or before that

date.r Plaintiff did not file this lawsuit until almost ayeffi later, on October 9,2018. During that

time, plaintiff had every opportunity to investigate its claims, conduct any necessary forensic

examination of its systems, and determine exactly what proprietary information (if any) it had a

legitimate reason to believe that defendants misappropriated. Yet plaintiff s original complaint

did not even identify what plaintiff s o'trade secrets" were (let alone what trade secret any

individual defendant was accused of taking and how they used the trade secret to plaintiff s

detriment), apart from va'gue references to "proprietary information" and "secret sauce." After

defendants provided plaintiff with a courtesy copy of a draft motion to dismiss, plaintiff

stipulated to amend its complaint.

On January 25,2018, plaintiff filed the First Amended Complaint. Notably, plaintiff now

admits that a competitor could "reverse engineer" its "parts lists," "circuit boards, "signal flow"

I The exception is the o'unusual

[network] traffic" described in paragraph 41, in which plaintiff
alleges that at some point, "someone" attempted login to its computer without authorization. As
explained below in section IV.A, plaintiff does not allege any factual basis whatsoever to support
its rank speculation that that o'someone" was defendants.
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and other elements of plaintiff s products. Id. n 14. Plaintiff s candid admission that someone

within the industry could ascertain its supposedly proprietary information through reverse

engineering casts serious doubt on whether some or all of plaintifls alleged trade secrets are

even protected by the DTSA. As relevant to this motion, this ambiguity underscores how critical

it is that plaintiff allege what exactly defendants are accused of misappropriating and how they

used it, in order to put defendants on notice of the scope of plaintiff s claim and give them a fair

opportunity to prepare a defense. Yet like its predecessor, the First Amended Complaint omits

multiple key facts that are necessary to state a plausible DTSA or CFAA claim. These missing

facts include, for example:

a What specific "proprietary and secret" information defendants are accused of'actually
misappropriating;

a Whether defendants ever formed a business, competed with plaintiff, or captured any
of plaintiff s customers using its trade secrets. In other words, the First Amended
Complaint does not allege how defendants' purported misappropriation of plaintiff s
trade secrets caused its injury; and

o Any facts whatsoever suggesting that any defendantaccessed plaintiff s computers

other than during their employment using company-issued login credentials.

Rather than plead the required facts, plaintiff relies on o'Slack" conversations in which

defendants allegedly discussed all of the ways they 'ointended" to harm plaintiff. But defendants'

mere intent, however provocative, does not give plaintiff a cause of action under the DTSA or

the CFAA. Instead, despite every opportunity to plead its best case, plaintiff cannot identify a

single proprietary document that it claims was actually misappropriated by any one of the four

defendants. Nor does plaintiff allege that any defendant has ever competed with plaintiff, with or

without using its supposed trade secrets. Finally, plaintiff does not plead a single fact plausibly

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suggesting that any defendant has ever accessed its computers without authorization or in excess

of their authorization, as required to state a claim under the CFAA.

ilI. LEGAL STANDARD.

To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a

complaint must contain sufficient facts to "state a claim to relief that is plausible on its face."

Bell Atl. Corp. v. Twombly,550 U.S, 544,570 (2007). Federal Rule of Civil Procedure 8

"demands more than an unadorned, the-defendant-unlawfully harmed-me accusation." Ashcroft

v. Iqbal,556 U.S. 662, 678 (2009). Thus, a complaint that is limited to 'olabels and conclusions"

or a "formulaic recitation of the elements of a cause of action" will not survive a motion to

dismiss. Twombly,550 U.S. at555.

Although the Court must accept plaintifls well-pled factual allegations as true, the Court

should not accept as true "allegations that are merely conclusory, unwarranted deductions of fact,

or unreasonable inferences." Sprewell v. Golden State Warriors,266F.3d979,988 (9th Cir.

2001). Nor should the court accept "legal conclusions cast in the form of factual allegations if
those conclusions cannot reasonably be drawn from the facts alleged." Clegg v. Cult Awareness

Network,lS F.3d 752,754-55 (9th Cir.1994).

Allegations of fraud, or that sound in fraud, must be pled with particularity. Fed. R. Civ.

P. 9(b); Vess v. Ciba-Geigy Corp. USA,317 F.3d 1097 , 1107 (gth Cir. 2003). The purpose of

Rule 9(b) is to provide defendants adequate notice of the alleged wrong, and a fair opportunity to

defend against plaintiff s claim. Concha v. London,62F.3d 1493, 1502 (9th Cir. 1995). Thus,

even if fraud is not a necessary element of plaintifls claim, Rule 9(b) nonetheless applies where

plaintifls claims are based on a "unified course of fraudulent conduct." Keerns v. Ford Motor

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Co.,567 F.3d 1720,II25 (9th Cir. 2009). In such cases, plaintiff s claims are said to o'sound in

fraud," and the complaintooas a whole must satisfy the particularity requirement of Rule 9(b)."

Id.

ry. ARGUMENT.

A. Defendants Did Not Violate the CFAA bv Alleeedly Abusine Their Access to
Plaintiffs Computers.

The Computer Fraud and Abuse Act, 18 U.S.C. $ 1030 et seq., prohibits the use of

protected computers "without authorization" or in a manner that "exceeds authorized access." .Id.

Congress passed the CFAA to address the problem of computer hacking. Ticketmaster L.L.C. v.

Prestige Entm't, lnc.,306 F. Supp. 3d 1164,Il74-1175 (C.D. Cal.2018). Although the Act also

creates a private civil cause of action under limited circumstances, it is o'primarily a criminal

statute." LVRC Holdings LLC v. Brekka,58l F.3d 1127,1134 (gth Cir.2009). Accordingly,

courts in this circuit construe the Act narrowly. Id. (statutes with both criminal and noncriminal

penalties are interpreted consistently across contexts).

In Brekka, which involved facts that are analogous to this case, the Ninth Circuit held

explicitly that the Act does not apply to an employee who abuses his or her access to an

employer's computer. Specifically, the Court explained that:

Nothing in the CFAA suggests that a defendant's liability for accessing a

computer without authorization turns on whether the defendant breached a
state law duty of loyalty to an employer. If the employer has not rescinded the
defendant's right to use the computer, the defendant would have no reason to
know that making personal use of the company computer in breach of a state
law fiduciary duty to an employer would constitute a criminal violation of the
CFAA. It would be improper to interpret a criminal statute in such an
unexpected manner.

Id. at 1135. Brekka also held that defendant had not "exceeded" his authorization by accessing

the plaintiff employer's computer to aid his competing business. Thus, the Court explained
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fN]othing in the CFAA suggests that a defendant's authortzation to obtain

information stored in a company computer is 'exceeded' if the defendant
breaches a state law duty of loyalty to an employer, and we decline to read
such a meaning into the statute.

Id. at135,n.7.

A full panel of the Ninth Circuit reaffirmed Brekka three years later in United States v.

Nosal, 676 F.3d 854 (9th Cir.2012) (en banc). In Nosal, which also involved alleged

misappropriation of company data by an employee, the Court held thatoooexceeds authorized

access' in the CFAA is limited to violations of restrictions on access to information," and "does

not extend to violations of use restrictions." Id. at 863-864 (emphasis in original). After Brekka

and Nosal, it is settled law in this circuit that an employee does not violate the CFAA simply by

abusing his access to his employer's computers.

The gravamen of plaintiff s CFAA claim is, of course, that defendants violated the Act by

breaching its employee use restrictions. Specifically, plaintiff alleges that:

Defendants . . . exceeded authorized access to Plaintiff s computer system by

login [sic] into restricted systems for purposes and activities in violation of
company policies and employee authority.

Compl. 'tf 69 (emphasis added). Even if this allegation were true, it is precisely the activity that

the Ninth Circuit held unequivocally in Brekka and Nosal does not violate the Act.

After defendants put plaintiff on notice of Brekka and Nosal, plaintiff made the following

allegation for the first time in the First Amended Complaint:

Following the end of Defendants' employment with Catalinbread, there was

evidence of unusual traffic on the Catalinbread network, including multiple
instances where some of the shop computers showed signs that someone had
attempted to login to the computer andlor the company network.

Compl. fl 41. Plaintiff also alleges that defendants "accassed and altered data on a computer"
o'Bryan" after Bryan no longer worked for plaintiff. Compl.
belonging to someone named '!i35

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Plaintifls vague new allegations are insufficient to state a CFAA claim for at least two key

TEASONS

First, the mere fact that "someone" may have tried to access plaintifls computers does

not permit a reasonable inference that defendants, as opposed to any other random person with

an internet connection, were responsible. Plaintiff does not allege, for example, that the would-be

hacker attempted to access its computer using defendants' former login credentials, or from an IP

address associated with defendants' known location. Plaintiff does not even explain when the

attempted hack occurred, other than that it was sometime between the end of defendants'

employment and the filing of the First Amended Complaint more than a year later. Plaintiff s

rank speculation that defendants are responsible for the alleged attempted hack on its system

does not satisfy the pleading standard announced in Twombly, and it falls far short of Rule 9's
hei ghtened particularity requirement.

Second, and just as significant, plaintiff does not allege whether the "attempted" hack
was even successful. This omission is critical because in order to sustain its CFAA claim

plaintiff must plausibly allege that defendants leveraged the hack to obtain or destroy something
of value. 18 USC $$ 103O(o)(4XAX1XI), (g) (authorizingprivate civil action for economic

damages where violation results in aggregate loss of at least $5,000). Absent an allegation that

the would-be hacker actually accessed plaintiff s computer and used that access to do damage,

there is no basis to conclude that anybody, much less any defendant, is liable to plaintiff under
the Act.

Finally, the allegations about "Bryan" show at most that Bryan lacked access to the
computer, not defendants. The supposed access to his computer is alleged to have occurred while

defendants still worked for plaintiff. Moreover, while defendants are alleged to have discussed
wiping Bryan's computer, there is no allegation that they actually did so, or even that Bryan's
computer belonged to plaintiff.

In sum, Brekka and Nosal are controlling, and compel dismissal of plaintiff s CFAA
claim. To the extent plaintiff now claims that defendants accessed its computers after their
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employment ended, its allegations do not satisfy Twombly, and fall far short of meeting Rule

9(b)'s particularity requirement. See Oracle Am., Inc. v. Serv. Key, LLC, No. C 12-00790 SBA,

2012WL 6019580, at *6 (N.D. Cal. Dec. 3,2012) (CFAA claim subject to Rule 9(b)).
Accordingly, plaintifls CFAA claim should be dismissed.

B Plaintiff Fails to State a Claim Under the Defend Trade Secrets

Act. 18 U.S.C. I 1836.

To state a misappropriation claim under the DTSA, plaintiff must allege facts that, if true,

establish the following three elements

(1) that it is the owner of a trade secret; (2) that the defendant misappropriated
the trade secret; and (3) that it was damaged by the defendant's actions.

Alta Devices, Inc. v, LG Elecs,,1nc., No. 18-CV-00404-LHK, 2018 WL 5045429, at *8 Q.{.D.

Cal. Oct, 17,2018).

The term "trade secret" as used in the Act, is limited to information that "derives

independent economic value . . . from not being generally known to, and not being readily

ascertainable throuqh proper means by, another person who can obtain economic value from the

disclosure or use of the information." 18 USC $ 1839(3) (emphasis added). Thus, to state a

claim, the complaint must "describe the subject matter of the trade secret with sufficient

particularity to separate it from matters of general knowledge in the trade or of special persons

who are skilled in the trade." Alta Devices, Inc.,2018 WL 5045429, at *8 (quoting Vendavo, Inc.

v. Pricef(x) lG, No. 17-cv-06930-RS, 2018 WL 1456697, at *4 Qt{.D. Cal. Mar. 23,2018).

"[M]erely provid[ing] a high-level overview of [plaintiff s] purported trade secrets" is not

sufficient to survive a motion to dismiss. Space Data Corp. r. X, No. 16-CV-03260-BLF,2017

WL 5013363, at *2 (N.D. Cal. Feb. 16,2017).

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Plaintiff has not adequately pled any element of its DTSA claim.2 First, a vague "high-

level overview of [the] purported trade secrets" that defendants allegedly stole is, at best, all that

the complaint contains. Id. To be sure, the complaint describes as a general matter what

categories of information plaintiff counts among its "trade secrets." Compl. fl 13. But despite

repeated conclusory references to "proprietary development parts," and "proprietary and secret

information," plaintiff does not allege which of these secrets defendants are accused of actually

misappropriating, ld.nn23,38. As a result, defendants are in no position to evaluate whatoosecret

information" they are accused of stealing, or whether that information is even protected by the

Act. See 18 USC $ 1839(3XB) (information that is generally known or readily ascertainable

within the industry is not atrade secret); see also Compl. $ 14 (admitting that many of plaintiff s

"trade secrets" can be reverse engineered).

Second, the material allegations in support of plaintiff s DTSA claim are not directed at

any of the four named defendants in particular. Mr. Miller, for example, has no way of knowing

what (if any) proprietary information he is personally accused of taking. In fact, none of the

defendants are in a fair position to determine whether they are accused of misappropriating all of

plaintiff soosecret information," or some of it, or none of it. In other words, the complaint does

not put any defendant on notice of the scope of the DTSA claim against him in terms of how he

took, used, or disclosed the purported trade secrets. See Space Data Corp.,2017 WL 5013363,

at *2 (dismissing DTSA claim where conclusory assertions of misappropriation were "not

supported by adequate factual allegations").

2 The complaint fails to meet even the basic demands of Rule 8(a). Importarrtly, because
plaintiff claims that defendants misappropriated its "trade secrets" by way of misrepresenting
their intentions to continue working at Catalinbread, these allegations must (but do not) also
satisfy the more stringent requirements of Rule 9(b). See Kearns,567 F.3d at 1125.
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Finally, the complaint fails to explain how defendants' alleged acquisition of plaintiff s

trade secrets caused its injury. It may be true that plaintiff has "incurred substantial and near

terminal losses in revenue" since Burkett took over control of the company. But nothing in the

complaint indicates that defendants' alleged misappropriation - rather than, for instance, new

ownership's complete lack of industry experience and alienation of key employees - caused

plaintiff s losses. In fact, despite filing its First Amended Complaint more than ayear after

defendants left the company, plaintiff does not (and cannot) allege that defendants have ever

competed with it at all. Critically, plaintiff does not allege a single instance in which defendants'

used its trade secrets to sell a competing product or divert even one customer. This lack of any

causal connection between the challenged conduct and plaintiff s alleged injury simply cannot be

squared with plaintiffls $200,000 damages claim. See 18 U.S.C. $ 1836(bX3)(B) (allowing an

award of damages "caused by the misappropriation") (emphasis added).

In short, plaintiff s DTSA claim is based on precisely the sort of "unadorned, the-

defendant-unlawfully harmed-me accusationfs]" that the Supreme Court has repeatedly

cautioned against. Iqbal,556 U.S. at 678. Plaintiff s claim should be dismissed accordingly.

C. PlaintiffCFAA and DTSA Claims Should be Dismissed with Preiudice

s
Because Further Amendment is Futile.

Although leave to amend is ordinarily freely granted, "[a] district court does not err in

denying leave to amend where the amendment would be futile." Gardner v, Martino,563 F.3d

981, 990 (9th Cir. 2009).In this case, the Court should deny plaintiff leave to amend its DTSA

and CFAA claims a second time. Plaintiff did not file this lawsuit until almost ayear after the

events at issue. During that time, plaintiff had every opportunity to investigate this case and

discover the basic facts necessary to support its claims, if they existed. Yet despite two pleading

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tries and fair notice from defendants of the original complaint's deficiencies, plaintiff has not

met its burden. Under these circumstances, "there is no need to prolong the litigation by

permitting further amendment." Chaset v. Fleer/Slqtbox Int'|, LP,300 F.3d 1083, i088 (9th

Cir.2002). Accordingly plaintifls DTSA and CFAA claims should be dismissed with prejudice.

D. The Court Should Decline to its Sunnlemental Jurisdiction Over

Plaintiffs Remainins State Law Claims

The only jurisdictional basis that plaintiff pleads in relation to its state law claims is the

Couft's supplemental jurisdiction pursuant to 28 U.S.C. $ 1367. Compl. fl 7. Where "the district

court has dismissed all claims over which it has original jurisdiction," it may decline to exercise

supplemental jurisdiction over remaining state law claims. 28 U.S.C. $ 1367(c)(3); See, e.g.,

Parrav. PacifiCare of Ariz., Inc.,715 F.3d 1746,7156 (9th Cir.2013). Moreover, "'thevalues

ofjudicial economy, convenience, fairness, and comity' generally weigh in favor of dismissal in

such circumstances." McNair v. Oregon, No. 2:16-CV-00709-SB, 2018 WL 2208208, at*4 (D.

Or. May 14,2018) (quoting Mine Workers v. Gibbs, 383 U.S. 715,726-27 (1966)).In this case,

at the outset of the litigation before discovery has even begun, dismissal of plaintiff s state law

claims with leave to refile in state court is clearly appropriate.

E. Plaintiff is Not Entitled to a Punitive Iniunction to Permanentlv Bar

Defendants from Earnins a Living in the Industry of Their Choosing.

As explained above, the First Amended Complaint should be dismissed. In the

alternative, however, subsections a.5 and a.6 of plaintiff s prayer should be stricken pursuant to

Federal Rule of Civil Procedure 12(f). Id. (the Court may strike from a pleading any immaterial

or impertinent matters). Subsections a.5 and a.6 of plaintiff s prayer for relief seek a sweeping

and blatantly anticompetitive injunction that would forever prohibit defendants from

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participating or being employed in the guitar pedal business. The injunction is not authorizedby

any of the statutes plaintiff invokes; is not supported by contract or limited in either geographic

or temporal scope; and is plainly contrary to public policy favoring freedom of employment.3

Worse, plaintiff does not identify any legitimate remedial purpose this relief could possibly

serve. Instead, this aspect of the injunction appears intended to serve a purely punitive function.

Plaintiff s demand that the Court permanently restrain defendants from plying their

chosen trade, without any legal or factual basis, smacks of a bad faith attempt to leverage this

case to restrain legitimate competition. Defendants are not seeking attomeys' fees in connection

with this motion. Defendants note, however, that the DTSA authorizes a fee award where

plaintiff brings a misappropriation claim in bad faith, and they reserve the right to invoke that

provision at alater time should this case proceed through discovery to summary judgment. In

any event, the punitive relief requested in sections a.5 and a.6 has no basis in law, clearly

violates sound public policy, and squarely contradicts the plain text of the DTSA. The offensive

sections of plaintiff s prayer for relief should be stricken. Fed. R. Civ. P. 12(f).

3
In fact, the DTSA specifically prohibits an injunction that would "prevent a person from
entering into an employment relationship," U.S.C. $ 1836(b)(3)(A).
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V. CONCLUSION.

For all of the foregoing reasons, the Court should dismiss the First Amended Complaint.

In the alternative, sections a.5 and a.6 of plaintiff s prayer for relief should be stricken.

DATED this 8th day of February, 2019,

HAGLUND KELLEY LLP

s/Christonher I
Christopher Lundberg, OSB No. 941084
clundberg@hk-law.com
200 SW Market Street, Ste.1777
Portland, OR97267
(s03) 22s-0777

Attorneys for Defendants Scott Miller, Howard Gee,

and Boris Lutskovsky

MOTION TO DISMISS HAGLUND KELLEY LLP

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CERTIFICATE OF SERVICE

I hereby certify that on the 8th day of January,2079, I served the foregoing Motion to

Dismiss, on the following:

Aaron J. Cronan
Cronan Law LLC
4207 SE Woodstock Blvd., No. 440
Portland, OR97206
aaron@aaroncronanlaw. com
Attorney for Plaintiff

Jon P. Stride
Tonkon Torp LLP
888 SW Fifth Avenue, Ste. 1600
Portland, OR97204
j on.stride@tonkon,com

Attorney for Defendant Michael Erickson

by the following indicated method(s):

by mailing a full, true and correct copy thereof in a sealed first-class postage prepaid envelope,
addressed to the foregoing attorney at the last known office address ofthe attorney, and deposited
with the United States Post Office at Portland, Oregon on the date set forth above.

by causing a full, true and correct copy thereofto be hand delivered to the attorney at the last
known address listed above on the date set forth above,

n by sending a full, true and correct copy thereof via overnight mail in a sealed, prepaid envelope,
addressed to the attorney as shown above on the date set forth above.

by faxing a full, true and correct copy thereof to the attorney at the fax number shown above,
which is the last-known fax number for the attorney's office on the date set forth above.

by transmitting full, true and correct copies thereof to the attorneys through the court's Cm/ECF
system on the date set forth above.

s/Christopher Lundbere
Christopher Lundberg, OSB No. 941084
Attorneys for Defendants Miller, Gee and Lutskovsky

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