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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MINNESOTA

HUBBARD PRAIRIE BEAN COMPANY, Plaintiff, v.

Case No.: 0:14 - CV- 00076-JRT-LIB

CHIPPEWA VALLEY BEAN CO., INC., Defendant/Counter-Plaintiff.

MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS, TRANSFER OR STAY

INTRODUCTION Defendant/Counter-Plaintiff respectfully moves this court for an order dismissing or transferring this action in favor of the first filed action, Chippewa Valley Bean Co., Inc. v. Hubbard Prairie Bean Company, currently pending in the United States District Court for the Western District of Wisconsin, case number 3:14-cv-00030-slc. Under the “first-filed rule,” the court “initially seized of a controversy” generally “should be the one to decide the case.” Orthmann v. Apple River Campground, Inc., 765 F.2d 119, 121 (8th Cir.1985) (citation omitted); see also Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 817, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976) (“As between federal district courts, ... the general principle is to avoid duplicative litigation.”). This rule recognizes the comity concerns between coequal federal courts and promotes efficient use of judicial resources by authorizing a latter-filed, substantially similar action's stay or dismissal in deference to an earlier case. Orthmann, 765 F.2d at 121. The first-filed rule “is not intended to be rigid, mechanical, or inflexible, but is to be applied in a manner best serving the interests of justice.” Nw. Airlines, Inc. v. Am. Airlines, Inc., 989 F.2d 1002, 1005 (8th Cir.1993). That said, “[t]he prevailing standard is that in the absence of compelling circumstances, the first-filed rule should apply.” Id. Martin v. Cargill, Inc., 295 F.R.D. 380, 388 (D. Minn. 2013).

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While admittedly not a rigid or mechanical rule, there are no compelling circumstances to avoid the application of the first-filed ruled in this case. I.

PROCEDURAL HISTORY

There are currently three lawsuits pending between these two parties, all arising out of the same transaction and all alleging the same claims and defenses. Chippewa Valley Bean Co., Inc. v. Hubbard Prairie Bean Company, Inc. Wis. Fed. Case. No. 3:14-cv-00030-slc; Hubbard Prairie Bean Company, Inc. v. Chippewa Valley Bean Co., Inc. Otter Tail County MN State Case No. 56-CV-14-8; and This case - - Hubbard Prairie Bean Company, Inc. v. Chippewa Valley Bean Co., Inc. MN Fed. Case No. 0:14-cv-00076-JRT-L. A copy of each Complaint and each Answer/Counterclaim is attached the Affidavit of Stephanie L. Finn, filed with this Memorandum. A.

CHIPPEWA VALLEY BEAN FILED THE FIRST LAWSUIT IN THE STATE OF WISCONSIN, DUNN COUNTY CIRCUIT COURT, ON DECEMBER 9, 2013.

Chippewa Valley Bean commenced its lawsuit in Wisconsin first. (Finn Affidavit, Exhibit A). In Wisconsin, a lawsuit is commenced when it is filed with the clerk of court’s office, not when it is served. Section. 801.02, Wis. Stats., sets forth the procedure for commencing a civil action in the state of Wisconsin. Sec. 801.02(1) and (2) provide that a civil action is commenced by the filing of a summons and complaint, provided that the defendant is served with an authenticated copy of the summons and of the complaint within 90 days of filing. 801.02. Commencement of action (1) Except as provided in s. 20.931(5)(b), a civil action in which a personal judgment is sought is commenced as to any defendant when a summons and a complaint naming the person as defendant are filed with the court, provided service of an authenticated copy of the summons and of the complaint is made upon the defendant under this chapter within 90 days after filing. 2

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(2) A civil action in which only an in rem or quasi in rem judgment is sought is commenced as to any defendant when a summons and a complaint are filed with the court, provided service of an authenticated copy of the summons and of either the complaint or a notice of object of action under s. 801.12 is made upon the defendant under this chapter within 90 days after filing.[emphasis added]. Indeed, Sec. 801.02(4), Stats., provides:“(4) No service shall be made under sub. (3) until the action has been commenced in accordance with sub. (1) or (2).” Additionally, Wis. Stats. §893.02 provides: Except as provided in s. 893.415(3) [support actions], an action is commenced, within the meaning of any provision of law which limits the time for the commencement of an action, as to each defendant, when the summons naming the defendant and the complaint are filed with the court, but no action shall be deemed commenced as to any defendant upon whom service of authenticated copies of the summons and complaint has not been made within 90 days after filing.[emphasis added]. See also Korkow v. General Cas. Co. of Wisconsin, 117 Wis.2d 187 344 N.W.2d 108, 114 (Wis.Sup.Ct. 1984) (the filing of the summons and complaint commences the action); Lak v. Richardson-Merrell, Inc., 100 Wis.2d 641, 302 N.W.2d 483,487 (Wis.Sup.Ct.1981)(action is commenced when summons and complaint are filed). The Wisconsin Supreme Court has specifically addressed the issue and made clear that it is the filing of the summons and complaint, and not service, which determines the commencement date of a lawsuit: It should be noted that sec. 801.02, Stats., abolished the mode of commencement of action by service of a summons and is very similar to the federal practice under Rule 3 of the Federal Rules of Civil Procedure. The present day sec. 801.02 abolished what has been called a “hip-pocket” method of commencing an action. Under the former method, a party could serve a summons on the defendant, which tolled the statute of limitations, and then file and pay the filing fee any time within one year of service. Under sec. 801.02(1) it is clear that an action seeking a personal judgment is commenced at the moment the summons and complaint are filed with the court, not at the time of service, provided that the defendant is served with authenticated copies within 60 days [now 90] of filing. Schlumpf v. Yellick, 94 Wis.2d 504, 507, 288 N.W.2d 834 (1980). See Hester v. Williams, 117 Wis. 2d 634, 639, 345 N.W.2d 426, 428-29 (1984).[emphasis added].

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And there is no dispute that Hubbard Prairie was properly served with the Wisconsin summons and complaint on January 3, 2104 -- clearly within 90 days of the filing/commencement on December 9, 2013. (Finn Affidavit, Exhibit B, Affidavit of Service). Thus, Chippewa Valley Bean’s filing of the Wisconsin State Court action occurred and was effective on December 9, 2013. That is the day the lawsuit started and is considered commenced. Even though the date of filing controls under Wisconsin law, it is important to note that in the time period between December 9, 2013 when Chippewa Valley first filed its lawsuit, and January 3, 2014 when Hubbard Prairie was served, service was purposefully delayed based on Hubbard’s then counsel’s comment that progress could be made on settlement. As a courtesy to further show good faith in an effort to resolve the dispute and figure out a way to continue business under the contracts, Chippewa Valley agreed not to serve the lawsuit thereby not triggering a formal Answer deadline. B.

HUBBARD PRAIRIE SERVED AND FILED A SECOND LAWSUIT IN OTTER TAIL COUNTY MINNESOTA STATE COURT ON DECEMBER 31, 2013.

It is important to note that Hubbard Prairie conceivably could have, but did not, file this current action sooner. Instead, prior to filing this action in Minnesota Federal Court, Hubbard Prairie filed an intervening lawsuit in Minnesota State Court, (i.e., after the Wisconsin lawsuit was filed, but before filing this lawsuit). On December 31st, Hubbard Prairie’s Minnesota State Court action was served on Chippewa Valley Bean and filed on January 2, 2014. (Finn Affidavit, Exhibit C). Hubbard then filed this action on January 8th but, inexplicably, refused to dismiss its Minnesota State Court action. As such, the parties have unnecessarily spent substantial time, fees, and judicial resources in Minnesota State Court on a motion to dismiss that action arguing,

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in part, that by subsequently filing this Minnesota Federal court action, Hubbard Prairie has rescinded/repudiated/disavowed the Minnesota State Court action. C.

HUBBARD PRAIRIE FILED THIS THIRD LAWSUIT ON JANUARY 8, 2014.

Hubbard Prairie filed this lawsuit on January 8, 2014 - - one month after Chippewa Valley filed the Wisconsin action, approximately one month after Hubbard Prairie, through its counsel, was made aware of the lawsuit and the courtesy agreement, five days after Hubbard was served with the Wisconsin action, and six days after Hubbard filed its own Minnesota State Court action. This action is actually the last of the three lawsuits, and each alleges the same claims, counterclaims, and defenses. (Finn Affidavit, Exhibit D). D.

HUBBARD PRAIRIE REMOVED THE WISCONSIN STATE COURT ACTION TO FEDERAL COURT ON JANUARY 17, 2014.

On January 17, 2014, Hubbard Prairie, on its own initiative, sought recourse to the Wisconsin court system. Hubbard Prairie affirmatively took action to remove Chippewa Valley’s Wisconsin action from Wisconsin State court to Wisconsin Federal Court. Hubbard did not move to dismiss the Wisconsin State Court action but, instead, removed it. At the time it removed the action to Wisconsin Federal Court, Hubbard Prairie did not inform the Wisconsin Federal Court that this Minnesota Federal Court case was pending. Nor did it makes its request for removal conditional upon, or subject to, any objection to the Wisconsin forum/venue. (Finn Affidavit, Exhibit E, Notice of Removal). The preliminary pre-trial was held in the Wisconsin action on February 19, 2014. The dates in scheduling order issued in that case were used by the Parties in their proposal for dates/deadlines to this court at the preliminary pre-trial conference which was subsequently held on March 12, 2014. While this court adopted most of those dates, there were a few that are now 5

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further down the road than the Wisconsin action. Notably, discovery cutoff in the Wisconsin action is November 15, 2014, but is December 15th in this action. The dispositive motion deadline in Wisconsin is November 10, 2014, and February 15, 2015 in this action. And the trial in Wisconsin is set to commence on April 20, 2015, while the trial in this matter is set to commence on July 15, 2015. II.

ARGUMENT

Chippewa Valley requests that this action be dismissed or stayed pending the outcome of the Wisconsin case, or, that this matter to be transferred to Wisconsin to be consolidated with the matter pending there. Chippewa Valley maintains that the Wisconsin action should proceed as the first-filed action, as well as based on additional considerations such as choice of venue principles as set forth at 28 USCA §1404, and the overall circumstances and equities of the case. A.

FIRST FILED RULE SHOULD APPLY.

The first filed rule gives priority, for purposes of choosing among possible venues when parallel litigation has been instituted in separate courts, to the party who first establishes jurisdiction. Midwest Motor Exp., Inc. v. Cent. States Se., 70 F.3d 1014, 1017 (8th Cir. 1995). “In cases of concurrent jurisdiction, the first court in which jurisdiction attaches has priority to consider the case as a matter of federal comity.” Keymer v. Management Recruiters, Int'l Inc., 169 F.3d 501, 503 n. 2 (8th Cir.1999) (citing Northwest Airlines, Inc. v. American Airlines, Inc., 989 F.2d 1002, 1004–05 (8th Cir.1993)). “The first-filed rule gives priority, when parallel litigation has been instituted in separate courts, to the party who first establishes jurisdiction in order to conserve judicial resources and avoid conflicting rulings.” Id. Duplicative litigation in the federal courts should be avoided in order to prevent the unnecessary expenditure of scarce judicial resources. See Colorado River Water Conservation Dist. v. United States, 424 6

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U.S. 800, 817 (1976); Missouri v. Prudential Health Care Plan, Inc., 259 F.3d 949, 953–54 (8th Cir.2001). Pursuant to the first-filed rule, a district court has the discretion to dismiss the later action, see Anheuser–Busch, Inc. v. Supreme Int'l Corp., 167 F.3d 417, 419 (8th Cir.1999), or transfer it if an action involving the same parties and issues was earlier-filed in a different district, see Orthmann v. Apple River Campground, Inc., 765 F.2d 119, 121 (8th Cir.1985); Monsanto Technology LLC v. Syngenta Crop Protection, Inc., 212 F .Supp.2d 1101, 1102 (E.D.Mo.2002). Chippewa Valley maintains that the first filed rule should be applied here to avoid duplicative litigation. Not only was the Wisconsin action commenced first by filing first on December 9, 2013, but the Wisconsin action was also served first, having been served on Hubbard on January 3, 2014. This action was filed on January 8, 2014 and served on January 9th. B.

EVEN IF THE FIRST FILED RULE IS NOT APPLIED, THE “OVERFILING” OF THIS CASE BY HUBBARD SUPPORTS DISMISSAL OR TRANSFER.

The Eighth Circuit adheres to the principle that a party should not be allowed to litigate the same issue in more than one federal court: [W]e agree with the Seventh Circuit that a plaintiff “should not be” allowed “to litigate the same issue at the same time in more than one federal court.” Crowley Cutlery Co. v. United States, 849 F.2d 273, 279 (7th Cir.1988) (affirming a district court's dismissal on this basis). Further, dismissal of duplicative claims comports with our long-standing “general principle” of “avoid[ing] duplicative litigation.” Brewer v. Swinson, 837 F.2d 802, 804 (8th Cir.1988) (citing Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 817, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). Blakley v. Schlumberger Tech. Corp., 648 F.3d 921, 932 (8th Cir. 2011). There is no support in the law for Hubbard’s actions in filing two separate lawsuits in Minnesota within weeks of each other and refusing to dismiss either one. Such actions should not be rewarded. This case has been unnecessarily complicated by Hubbard’s not one, but two,

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duplicative filings - - presumably done to try to increase its ability to forum shop, and such actions should not be rewarded. C.

EVEN IF THE FIRST FILED RULE IS NOT APPLIED, HUBBARD’S “EXPLOITATION” OF THE COURTESY AGREEMENT, SHOULD NOT BE REWARDED.

The first filed rule is all the more important or equitably applied where, as here, Hubbard Prairie was aware of the first filed Wisconsin action at the time that it filed this action; and was taking advantage of a courtesy agreement not to serve the Wisconsin action in the hopes of advancing settlement. Such actions to promote settlement should be protected. Minnesota law favors settlement in general. Rice Lake Contracting Corp. v. Rust Environment and Infrastructure, Inc., 549 N.W.2d 96, 100 (MN Ct.App. 1996). The plethora of public policies promoting efficient, economical and expeditious resolution of disputes should encourage attempts to settle with minimal court involvement and discourage the unnecessary litigation strategy employed by Hubbard Prairie. On December 11, 2013, Attorney Webster Hart on behalf of Chippewa Valley Bean told Hubbard Prairie’s then counsel, Attorney Steven Bolton, that the Wisconsin lawsuit had been filed. Attorney Bolton acknowledged as much by his email requesting a copy of the Summons and Complaint which were provided to him on that day. Attorney Hart informed Attorney Bolton that a lawsuit is commenced in Wisconsin when filed. (See Finn Affidavit Exhibit F, Finn Affidavit from Minnesota State Court action). When the assistant sent the summons and complaint to Attorney Bolton, the email message was not as clear. However, Attorney Stephanie Finn followed up with Attorney Bolton explaining the status:

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Mr. Bolton, one slight correction to the email my assistant sent to you yesterday. In Wisconsin, unlike Minnesota, an action is commenced when filed. Thus, there is a properly filed and pending action which is considered "commenced." However, as we have not yet served the Summons and Complaint, no Answer is required at this time. As a courtesy, and in the hopes of resolving this matter, we are currently holding off on serving the papers. I hope this clarifies the status. Attorney Bolton responded: “Thank you for this clarification. I will make my clients aware of this.” Subsequently, counsel for Chippewa Valley Bean was contacted by the Pemberton Law Firm advising that Attorney Bolton was no longer representing Hubbard Prairie.(See Finn Affidavit Exhibit F, Finn Affidavit from Minnesota State Court action). Hubbard subsequently retained alternate counsel, the Pemberton Firm. On December 17, 2013, Attorney Stephanie Finn on behalf of Chippewa Valley Bean verbally told Attorney Dick Pemberton in a telephone call that a lawsuit had been filed and commenced in Wisconsin but that as part of a courtesy agreement it has not been served in the hopes that the parties could still work this out. Attorney Pemberton indicated that he would talk to Hubbard Prairie Bean and get back to her. (See Finn Affidavit Exhibit F, Finn Affidavit from Minnesota State Court action). Instead, on December 31st, Hubbard Prairie’s Minnesota State Court action was served on Chippewa Valley Bean and filed on January 2, 2014, and this action subsequently filed on January 8th. Just as a compelling circumstance to avoid application of the first filed rule may be a lawsuit which was improperly initiated as a rush to the courthouse where the filing party had advance notice that the other party was going to file, so too the reverse should be true. Here, where Hubbard knew that Chippewa Valley had already filed suit and was not serving only as a courtesy in an effort try to resolve the matter, it is a red flag or a compelling circumstance that

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would shed disfavor on Hubbard’s subsequently filed suits in favor of the application of the first filed rule. As in Travel Tags, Inc. v. Performance Printing Corp., 636 F. Supp. 2d 833, 840 (D. Minn. 2007) the court should not penalize the true plaintiff for filing its suit in its forum state to protect its interests in the event that good faith settlement negotiations, which are made in an effort to avoid litigation, prove fruitless. Travel Tags filed suit in Minnesota Federal Court but did not serve while negotiations continued. Unlike here, Travel Tags did not tell the opposing party that suit had been filed. The negotiations were ultimately unsuccessful and Travel Tags served the lawsuit. Performance then filed its own lawsuit in Texas. Performance argued that compelling circumstances precluded application of the first filed rule in favor of the Minnesota action because while it had filed first, Travel Tags had not served. The court rejected these arguments and held: [T]he Court finds that Performance has not shown compelling circumstances that warrant a departure from the first-filed rule. Neither of the red flags identified in Northwest Airlines are present here. The record does not reflect that Performance provided notice of its intention to sue prior to Travel Tags filing its suit. And here, Travel Tags does not seek declaratory relief in its action. Further, the facts that Travel Tags had previously filed suit based on a different patent, and that Travel Tags filed the present suit while it was still negotiating a license agreement, do not provide compelling circumstances that justify departure from the first-filed rule. There is no evidence that Travel Tags was negotiating in bad faith. The Court will not penalize the true plaintiff for filing its suit in its forum state to protect its interests in the event that good faith settlement negotiations, which are made in an effort to avoid litigation, prove fruitless. Accordingly, in the interests of justice, the Court finds that the Minnesota court has priority to hear Travel Tags' case. Id. at 840. [emphasis added]. Here Hubbard knew about Chippewa Valley Bean’s Wisconsin lawsuit and knew that it was only not proceeding if the good faith settlement negotiations to avoid litigation proved fruitless. Under such circumstances, Hubbard’s own rush to the courthouse a month later to serve before Chippewa Valley served is a red flag against Hubbard’s subsequent filings. 10

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D.

28 USCA 1404 MITIGATES IN FAVOR OF TRANSFER.

Even where a court declines to apply the first-filed rule, it can still transfer to another district under 29 USCA §1404 if the action might have been properly brought in the other district, and if the convenience and interest of justice factors so warrant: Title 28 U.S.C. § 1404(a) provides that “[f]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.” A court faced with a motion to transfer, therefore, must undertake a two-part inquiry. “The initial question ... is whether the action might have been brought in the proposed transferee district. If so, the Court must [then] consider the convenience and interest of justice factors.” Austin v. Nestle USA, Inc., 677 F.Supp.2d 1134, 1136 (D.Minn.2009) (Kyle, J.) (citation omitted). As the text of Section 1404(a) makes clear, three general factors inform whether a district court should grant a motion to transfer: (1) the convenience of the parties, (2) the convenience of the witnesses, and (3) the interests of justice. See Terra Int'l, Inc. v. Miss. Chem. Corp., 119 F.3d 688, 691 (8th Cir.1997). A district court may also consider any other factors it finds relevant when deciding whether transfer is warranted. In re Apple, Inc., 602 F.3d 909, 912 (8th Cir.2010) (per curiam); Terra Int'l, 119 F.3d at 691. There is no precise mathematical formula to be employed when balancing these factors, and a district court enjoys “much discretion” when deciding whether to grant a motion to transfer. Id. at 697. Courts must be cognizant, however, that transfer motions “should not be freely granted.” In re Nine Mile Ltd., 692 F.2d 56, 61 (8th Cir.1982) (per curiam), abrogated on other grounds by Mo. Hous. Dev. Comm'n v. Brice, 919 F.2d 1306 (8th Cir.1990). A “heavy” burden rests with the movant to demonstrate why a case should be transferred. E.g., Integrated Molding Concepts, Inc. v. Stopol Auctions L.L.C., Civ. No. 06–5015, 2007 WL 2263927, at *5 (D.Minn. Aug. 6, 2007) (Schiltz, J., adopting Report & Recommendation of Erickson, M.J.); Radisson Hotels Int'l, Inc. v. Westin Hotel Co., 931 F.Supp. 638, 641 (D.Minn.1996) (Kyle, J.). To satisfy that “heavy” burden, the movant must demonstrate that the relevant factors weigh “strongly” in its favor. Id. Klatte v. Buckman, Buckman & Reid, Inc., CIV. 13-3109 RHK/SER, 2014 WL 359380 (D. Minn. Feb. 3, 2014). Applying these factors to this case, Wisconsin is the more appropriate venue or forum. The convenience of the parties is likely a neutral inquiry. Minnesota is more convenient for Hubbard Prairie, but Wisconsin is more convenient for Chippewa Valley. Thus, the real inquiry is convenience of the witnesses. As described in Klatte:

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The convenience-of-witnesses factor generally is regarded as the most important in the inquiry. E.g., Austin, 677 F.Supp.2d at 1138. In analyzing this factor, the Court “must examine the materiality and importance of the anticipated witnesses' testimony and then determine their accessibility and convenience to the forum.” Reid–Walen v. Hansen, 933 F.2d 1390, 1396 (8th Cir.1991). The focus is on non-party witnesses, since “it is generally assumed that witnesses within the control of the party calling them, such as employees, will appear voluntarily in a foreign forum.” Austin, 677 F.Supp.2d at 1138 (citation omitted). In this regard, Wisconsin is the more convenient forum for non-party witnesses. Currently, bean shipments which contain the nightshade are located in Wisconsin. Analysis of the foreign material in the bean shipment was performed through the University of Wisconsin, Wisconsin State Herbarium who will likely be a fact witness. Also, to the extent Chippewa Valley Bean’s French customers may be fact witnesses with regard to initially discovering the contamination, investigating it, and the efforts that had to be undertaken to make the beans usable for human consumption their contacts have all been with Chippewa Valley Bean in Wisconsin. The third factor is described as the interests of justice. Klatte explains: Interests of justice. When analyzing this factor, courts consider (1) judicial economy, (2) the plaintiff's choice of forum, (3) the comparative costs to the parties of litigating in each forum, (4) each party's ability to enforce a judgment, (5) obstacles to a fair trial, (6) conflict of law issues, and (7) the advantages of having a local court determine local law. See, e.g., Cosmetic Warriors Ltd. v. Abrahamson, 723 F.Supp.2d 1102, 1107 (D.Minn.2010) (Kyle, J.) (citations omitted). As indicated above, Chippewa Valley was the first plaintiff and its choice of forum is Wisconsin. And Wisconsin makes sense. Hubbard Prairie Bean contacted Chippewa Valley Bean, a Wisconsin company, for purposes of selling to it. Hubbard Prairie initiated the contact with Chippewa Valley Bean, in Wisconsin, wanting to do business with a Wisconsin company. The beans were sent at the direction of Chippewa Valley Bean, a Wisconsin company. Under such circumstances Hubbard Prairie clearly expected to be haled into court in Wisconsin should a 12

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dispute arise. To the extent contaminated beans remain, they are located in Wisconsin. The out of pocket expenses that were incurred by Chippewa Valley Bean in having to pay for the investigation and re-cleaning of the non-conforming beans that had been shipped to France were incurred by Chippewa Valley Bean and paid from Wisconsin. Hubbard Prairie was invited to participate in the investigation and remediation of the beans in Wisconsin, and France, but refused. Thus, the witnesses as to all relevant facts surrounding Hubbard Prairie’s breach, the damages therefrom, and the efforts undertaken or required as a result of Hubbard Prairie’s breach are all in Wisconsin or involve French customers of Chippewa Valley Bean who dealt with Chippewa Valley Bean in Wisconsin. (Finn Affidavit Exhibit G, Cindy Brown Affidavit from Minnesota State Court action). Hubbard Prairie is the entity that breached the contract by providing non-conforming beans in that the beans were not of canning quality as that term is commonly understood in the industry because they contained a human toxin, i.e., nightshade berries. Chippewa Valley Bean has never refused to pay. Instead, Chippewa Valley informed Hubbard of this serious issue, which caused potential liability for both, and sought to include Hubbard in the response/approach to the problem. As such, it was proposed to delay payment for a short time, or stagger payment, while the parties could determine the extent of the problem and damages and to keep it from occurring with the future shipments. While negotiations were under way as to how to accomplish this Hubbard unilaterally declared the contract rescinded and refused to provide any additional orders. Under such circumstances, there is no basis for Hubbard to have rescinded the contract and it remains Chippewa Valley’s position that the contract remains in full force and effect and what is at issue in this case (in each of its three venues/jurisdictions) is whether there was a breach, by whom, and what are the damages. 13

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CONCLUSION Chippewa Valley Bean Co., Inc. respectfully requests that this court grant its motion to dismiss, stay or transfer in favor of the Wisconsin action currently pending. Dated this

day of March, 2014. By:

/s/ Stephanie L. Finn Webster A. Hart MN License No. 0041750 Stephanie L. Finn (pro hac vice) Herrick & Hart, S.C. 116 West Grand Avenue Post Office Box 167 Eau Claire, WI 54702-0167 (715) 832-3491 and Jeff Stowmn (0288378) Stowman Law Firm, P.A. P.O. Box 845 Detroit Lakes, Minnesota 56502 (218)847-5644 Fax: (218) 844-7647 Attorneys for Defendant/Counter-Plaintiff Chippewa Valley Bean Co., Inc.

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