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Case 2:12-cv-01007-RAJ Document 29 Filed 07/10/13 Page 1 of 5



HONORABLE RICHARD A. JONES











UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE



JULIE LOSEE STEVENSON, et al.,

Plaintiffs,

v.

SUSTAINABLE APPAREL GROUP,
LLC,

Defendant.



CASE NO. C12-1007RAJ

ORDER



I. INTRODUCTION

This matter comes before the court on Defendant’s motion for partial summary

judgment. No party has requested oral argument, and the court finds oral argument
unnecessary. For the reasons stated herein, the court GRANTS the motion (Dkt. # 16) in
part and DENIES it in part. The court also grants Plaintiff’s request, which she made in a
surreply, that the court not consider an argument Defendant raised for the first time in its
reply brief.

II. BACKGROUND

Plaintiff Julie Losee Stevenson was an independent salesperson for the “Threads

for Thought” clothing label. She began that work in April or May of 2008 and continued
until February 2012. She contends she did not receive all the commissions she was
promised for her work.

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Case 2:12-cv-01007-RAJ Document 29 Filed 07/10/13 Page 2 of 5



No one agrees on the entity for whom Ms. Stevenson acted as an independent

salesperson for the Threads for Thought label. Ms. Stevenson contends that, at all
relevant times, she sold only as an independent contractor for Defendant Sustainable
Apparel Group, LLC (“Sustainable”). Sustainable, for its part, contends that it did not
start doing business until October 2009, when it acquired certain assets and liabilities
from Midwest Apparel Group, Inc. (“Midwest”). It contends that Ms. Stevenson was
working as an independent contractor for Midwest prior to October 2009. Midwest is not
a party to this action.

Before January 2009, Ms. Stevenson asserts that Sustainable orally agreed to pay

her a 10% commission on sales to Nordstrom, and a 6% commission on sales to
Nordstrom Rack. On January 26, 2009, Eric Fleet sent her an email memorializing
certain agreements to pay commissions to Ms. Stevenson. Stevenson Decl., Ex. A. It is
not clear in what capacity Mr. Fleet was operating at the time. Mr. Fleet is a part owner
of Sustainable. If he was acting in a capacity other than as a representative of Sustainable
when he sent the January 26 email, there is no evidence before the court to support that
conclusion. The January 26 email promises a 5% commission for “Mens Rack
&Womens Rack orders back in November” and a 6% commission for “Rack” sales going
forward. Stevenson Decl., Ex. A (spelling and spacing in original).

Ms. Stevenson contends that Sustainable underpaid her commissions throughout

their relationship. She has sued for breach of contract, seeking to recover those
commissions.

In its partial summary judgment motion, Sustainable asks the court for two
rulings: that Sustainable is not liable for any commissions prior to its October 2009
acquisition of Midwest, and that Washington’s three-year statute of limitations for actions
on oral contracts means that Ms. Stevenson cannot recover allegedly unpaid commissions

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Case 2:12-cv-01007-RAJ Document 29 Filed 07/10/13 Page 3 of 5



prior to May 12, 2009, three years before she filed this suit. The court now turns to that
motion.

III. ANALYSIS

On a motion for summary judgment, the court must draw all inferences from the
admissible evidence in the light most favorable to the non-moving party. Addisu v. Fred
Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). Summary judgment is appropriate
where there is no genuine issue of material fact and the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(a). The moving party must initially show
the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). The opposing party must then show a genuine issue of fact for trial.
Matsushita Elect. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The
opposing party must present probative evidence to support its claim or defense. Intel
Corp. v. Hartford Accident & Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991). The
court defers to neither party in resolving purely legal questions. See Bendixen v.
Standard Ins. Co., 185 F.3d 939, 942 (9th Cir. 1999).

The court cannot rule, as a matter of law, that Sustainable began to exist only upon
its acquisition of certain Midwest assets and liabilities in October 2009. As the court has
noted, Ms. Stevenson contends that she dealt with Sustainable as early as April or May
2008. Sustainable’s certificate of incorporation states a July 22, 2008 incorporation date.
The January 2009 email from Mr. Fleet (a Sustainable owner) to Ms. Stevenson suggests
that Sustainable did business with Ms. Stevenson beginning no later than November
2008. The bare declaration of another Sustainable owner that Sustainable did not do any
business until October 2009 is insufficient, on a motion for summary judgment, to
overcome this evidence. See Wiesner Decl. (Dkt. # 17) ¶ 3. The court notes, moreover,
that the evidence suggests that Sustainable and Midwest were closely related companies.

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The evidence permits the conclusion that Sustainable existed prior to its acquisition of
Midwest’s assets and liabilities in October 2009.

The court’s resolution today makes it unnecessary to decide if Sustainable’s

express acquisition of Midwest’s accounts receivable would include unpaid commissions
that Midwest owed Ms. Stevenson.

As to the statute of limitations, the parties agree that Washington law applies.
They also agree that Washington law provides a three-year statute of limitations for
actions on contracts that are “not in writing” and that “do[] not arise out of any written
instrument.” RCW § 4.16.080(3). A six-year statute of limitations applies to actions on
written contracts or liabilities “arising out of a written agreement . . . .” RCW
§ 4.16.040(1).

On the evidence before the court, a jury could conclude that Mr. Fleet’s January
26, 2009 email is a written contract both to pay commissions arising in November 2008
for sales to Nordstrom Rack, and a contract to pay commissions on all future Nordstrom
Rack and Ross sales. There is no evidence of a written contract prior to May 12, 2009 for
sales to Nordstrom. Indeed, the only written evidence of an agreement as to Nordstrom
commissions is a January 2010 email from Mr. Fleet to Ms. Stevenson. Stevenson Decl,
Ex. B.

Given this evidence, the court makes the following rulings regarding the effect of

the statute of limitations on Ms. Stevenson’s claims at trial.

1) Ms. Stevenson has presented no evidence of a written contract governing her

commissions on Nordstrom sales prior to May 12, 2009, and she may not argue
otherwise at trial. As to any oral agreement between Sustainable and Ms.
Stevenson regarding commissions on Nordstrom sales, Ms. Stevenson may
recover damages for any breach occurring on or after May 12, 2009.

ORDER – 4

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Case 2:12-cv-01007-RAJ Document 29 Filed 07/10/13 Page 5 of 5



2) Ms. Stevenson has presented adequate evidence to allow a jury to decide

whether Sustainable agreed in writing to pay her commission on Nordstrom
Rack sales commencing in November 2008. She has presented no evidence of
any earlier written contract as to Nordstrom Rack sales, and she may not argue
otherwise at trial. As to any oral agreement between Sustainable and Ms.
Stevenson regarding commissions on Nordstrom Rack sales, Ms. Stevenson
may recover damages for any breach occurring on or after May 12, 2009.
3) Ms. Stevenson has presented adequate evidence to allow a jury to decide

whether Sustainable agreed in writing to pay her commission on Ross sales
commencing in January 2009. She has presented no evidence of any earlier
written contract as to Ross sales, and she may not argue otherwise at trial. As
to any oral agreement between Sustainable and Ms. Stevenson regarding
commissions on Ross sales, Ms. Stevenson may recover damages for any
breach occurring on or after May 12, 2009.

Finally, the court grants Ms. Stevenson’s request that the court not consider an
argument that Sustainable raised for the first time in its reply brief regarding an expert
witness’s opinions on Ms. Stevenson’s damages.

As stated above, the court GRANTS in part and DENIES in part Sustainable’s

IV. CONCLUSION

partial summary judgment motion. Dkt. # 16.

Dated this 10th day of July, 2013.



A

The Honorable Richard A. Jones
United States District Court Judge

ORDER – 5

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