ADMINISTRATIVE MOTION for Clarification of Deadline and/or for Extension of Time to Respond to… — Oto Benworth (Dkt. 26)

Record facts

U.S. District Court for the Northern District of California · No. 4:24-cv-03975-AMO · Doc. 26 · 2024-07-22 · Docket on CourtListener

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BENWORTH’S ADMINISTRATIVE MOTION FOR CLARIFICATION OF DEADLINE AND/OR 
FOR EXTENSION OF TIME TO RESPOND TO WOMPLY’S PETITION 
Case No. 3:24-cv-03975-AMO 
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Daniel C. Girard (State Bar No. 114826) 
dgirard@girardsharp.com 
Simon S. Grille (State Bar No. 294914) 
sgrille@girardsharp.com  
GIRARD SHARP LLP  
601 California Street, Suite 1400  
San Francisco, CA 94108  
Telephone: (415) 981-4800 
 
Jorge L. Piedra (Florida Bar No. 88315) 
(Pro Hac Vice Forthcoming) 
jpiedra@kttlaw.com  
Dwayne A. Robinson (Florida Bar No. 99976) 
(Pro Hac Vice Forthcoming) 
drobinson@kttlaw.com  
Michael R. Lorigas (Florida Bar No. 123597) 
(Pro Hac Vice Forthcoming) 
mlorigas@kttlaw.com  
KOZYAK TROPIN & THROCKMORTON  
2525 Ponce de Leon Boulevard, 9th Floor  
Miami, Florida 33134  
Telephone: (305) 372-1800 
 
Attorneys for Benworth Capital Partners, LLC
 
 
UNITED STATES DISTRICT COURT 
NORTHERN DISTRICT OF CALIFORNIA 
SAN FRANCISCO DIVISION 
 
 
OTO ANALYTICS, LLC f/k/a OTO 
ANALYTICS, INC. d/b/a WOMPLY, 
 
 
 
 
Petitioner, 
 
 
v. 
 
BENWORTH CAPITAL PARTNERS, LLC, 
 
 
 
 
Respondent. 
Case No. 3:24-cv-03975-AMO 
 
BENWORTH’S ADMINISTRATIVE 
MOTION FOR CLARIFICATION OF 
DEADLINE AND/OR FOR EXTENSION 
OF TIME TO RESPOND TO WOMPLY’S 
PETITION 
 
Hon. Araceli Martinez-Olguin 
 
Case 4:24-cv-03975-AMO     Document 26     Filed 07/22/24     Page 1 of 5

 
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BENWORTH’S ADMINISTRATIVE MOTION FOR CLARIFICATION OF DEADLINE AND/OR 
FOR EXTENSION OF TIME TO RESPOND TO WOMPLY’S PETITION 
Case No. 3:24-cv-03975-AMO 
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Pursuant to Local Rules 6-3 and 7-11, Respondent Benworth Capital Partners, LLC 
(“Benworth”), moves to clarify the deadline to respond to Oto Analytics, LLC’s (“Womply[’s]”) Petition 
to Confirm Arbitration Award (the “Petition”) or, alternatively, moves for an extension of time to and 
including September 3, 2024, in accordance with the Federal Arbitration Act (“FAA”).1  Womply 
requested that Benworth accept service of process and, in exchange, would have the customary 60 days 
to respond to the Petition. Declaration of Dwayne A. Robinson (“Robinson” Decl.”), ¶¶ 4-5. Then, 
Womply told Benworth that Benworth had 14 days to respond to Petition—the day before the alleged 
due date. Id., ¶ 6. Benworth requests clarification of the deadline or an extension of time to preserve its 
due process rights under the FAA.  
This is a dispute related to the Paycheck Protection Program (“PPP”). Benworth is a licensed 
PPP lender with the Small Business Administration that operates the federal program. Benworth 
arbitrated a dispute with Womply, who assisted Benworth to prepare and refer PPP loan applications 
during the COVID-19 pandemic, mainly from minority-owned businesses. Id., ¶¶ 1-2. 
On December 21, 2023, the arbitrator issued an interim award in the JAMS arbitration styled 
Oto Analytics, Inc. v. Benworth Capital Partners LLC, JAMS Ref. No. 1210038203. Id., ¶¶ 2-3. On May 
30, 2024, the Arbitrator issued his initial final award. Id. On June 26, 2024, the Arbitrator amended the 
final award (the “Amended Final Award”) to correct the award. Id. 
On July 1, 2024, Womply filed the Petition with this Court. ECF No. 1. That day, Womply’s 
counsel wrote counsel for Benworth, requesting that Benworth accept service and execute a waiver of 
 
1 In line with the Court’s Order (ECF No. 25), Benworth intends to file a response to the Petition by July 
23, 2024 with the understanding that this motion will not be resolved before that deadline. Benworth 
nevertheless contends that it has not been afforded sufficient time to respond to the Petition and therefore 
files this motion to request that the deadline be extended, and it be given an opportunity to file an amended 
or superseding response. This is Benworth’s first substantive motion for an extension; the agreed 
stipulation was submitted in an abundance of caution by Benworth so it could brief this matter for the 
Court prior to the expiration of any purported deadlines. Under these circumstances, Benworth should be 
given an opportunity to address the merits of its request. See Shelley v. Patrick, 427 Fed. Appx. 66, 69 
(3d Cir. 2011) (reversing dismissal because the court denied plaintiff’s first motion for extension of time 
to respond to a motion to dismiss even though it was filed before the deadline to respond). 
Case 4:24-cv-03975-AMO     Document 26     Filed 07/22/24     Page 2 of 5

 
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BENWORTH’S ADMINISTRATIVE MOTION FOR CLARIFICATION OF DEADLINE AND/OR 
FOR EXTENSION OF TIME TO RESPOND TO WOMPLY’S PETITION 
Case No. 3:24-cv-03975-AMO 
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the service of summons (the “Waiver”). Robinson Decl., ¶ 4. Counsel for Womply drafted the Waiver, 
as follows:  
 
 
 
 
 
 Waiver of Service of Summons, Attached to Email from Womply’s Counsel to Benworth’s 
Counsel (July 1, 2024) (highlight added). Id., ¶ 5, Ex. 1. The waiver noted that if Benworth waived 
service of process it would receive 60 days to respond to the Petition. Id. In light of that stipulation, 
Benworth accepted service of process as of July 5, 2024. Id. The executed Waiver allowed a response 
“within 60 days from 7/5/2024,” or September 3, 2024.  See ECF No. 15. 
Almost two weeks later, however, counsel for Womply wrote counsel for Benworth and, for the 
first time, asserted that a response to the initial pleading was due on the next day: July 19, 2024.  
Robinson Decl., ¶ 6. Womply argued that its Petition was a motion, so the response was due in two 
weeks, not 60 days. Id., ¶ 7. The parties conferred in an attempt to resolve this timing dispute, but 
Womply would only agree to a stipulated deadline no earlier than July 23, 2024. See ECF No. 24; 
Robinson Decl., ¶ 8-9. 
This Court should clarify the deadline to respond to the Petition or, in its discretion, set the 
deadline for the response no earlier than September 3, 2024. Womply submitted the Waiver that 
proposed granting Benworth 60 days to respond. Benworth accepted service in reliance on Womply’s 
proposed Waiver. Womply benefitted from the Waiver by avoiding the need to formally serve Benworth. 
Now, that Benworth agreed to the Waiver, Womply argues that the Waiver’s 60-day provision is 
inapplicable. This Court should uphold the parties’ agreement that permitted Benworth 60 days to 
respond to the Petition in exchange for agreeing to accept service of process. This Court may also extend 
the deadline on its own. It should do so to preserve the due process rights of Benworth.  
Case 4:24-cv-03975-AMO     Document 26     Filed 07/22/24     Page 3 of 5

 
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BENWORTH’S ADMINISTRATIVE MOTION FOR CLARIFICATION OF DEADLINE AND/OR 
FOR EXTENSION OF TIME TO RESPOND TO WOMPLY’S PETITION 
Case No. 3:24-cv-03975-AMO 
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A defense to confirmation is a petition to vacate, modify, or correct an award under the FAA’s 
§ 10 and § 11. See Kyocera Corp. v. Prudential-Bache Trade Servs., Inc., 341 F.3d 987, 997 (9th Cir. 
2003) (“The Act states that if a party seeks a judicial order confirming an arbitration award, ‘the court 
must grant such an order unless the award is vacated, modified or corrected as prescribed in sections 10 
and 11 of this title.’” (quoting 9 U.S.C. § 9)). The deadline to file a petition to vacate is three months 
after the award is filed or delivered. 9 U.S.C. § 12. The Ninth Circuit does not permit parties to raise 
defenses to confirmation that are not asserted in a petition to vacate. Bd. of Teamsters & Auto Truck 
Drivers Local No. 70 of Alameda Cnty. v. Celotex Corp., 708 F.2d 488, 490 (9th Cir. 1983).  
Accordingly, Benworth will suffer substantial prejudice if it is forced to prematurely respond to 
Womply’s Petition.  
Benworth’s statutory right to seek vacatur will not expire until September 26, 2024, three months 
after delivery of the Amended Final Award. See 9 U.S.C. § 12. Womply wants Benworth to respond to 
the Petition to Confirm no later than July 23, 2024, effectively denying Benworth’s statutory rights under 
the FAA. Given that the primary issue in the confirmation proceedings is whether the award has been 
vacated, modified, corrected, confirmation proceedings should await resolution of the vacatur 
proceedings. Benworth anticipates submitting its vacatur petition well in advance of its September 26th 
deadline. But, in any event, Benworth should not be required to file a response by July 23, 2024, 
especially when the parties entered a stipulated waiver of service that grants Benworth 60 days to 
respond.   
 
In conclusion, this Court should clarify the deadline for Benworth to respond to the Petition or 
set the deadline as no earlier than September 3, 2024. 
 
Dated: July 22, 2024 
Respectfully submitted, 
/s/ Simon S. Grille 
 
 
 
Daniel C. Girard (State Bar No. 114826) 
dgirard@girardsharp.com 
Simon S. Grille (State Bar No. 294914) 
sgrille@girardsharp.com  
GIRARD SHARP LLP  
Case 4:24-cv-03975-AMO     Document 26     Filed 07/22/24     Page 4 of 5

 
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BENWORTH’S ADMINISTRATIVE MOTION FOR CLARIFICATION OF DEADLINE AND/OR 
FOR EXTENSION OF TIME TO RESPOND TO WOMPLY’S PETITION 
Case No. 3:24-cv-03975-AMO 
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601 California Street, Suite 1400  
San Francisco, CA 94108  
Telephone: (415) 981-4800  
 
Jorge L. Piedra (Florida Bar No. 88315) 
(Pro Hac Vice Forthcoming) 
jpiedra@kttlaw.com  
Dwayne A. Robinson (Florida Bar No. 99976) 
(Pro Hac Vice Forthcoming) 
drobinson@kttlaw.com  
Michael R. Lorigas (Florida Bar No. 123597) 
(Pro Hac Vice Forthcoming) 
mlorigas@kttlaw.com  
KOZYAK TROPIN & THROCKMORTON  
2525 Ponce de Leon Boulevard, 9th Floor  
Miami, Florida 33134  
Telephone: (305) 372-1800 
 
 
Attorneys for Benworth Capital Partners, LLC 
 
Case 4:24-cv-03975-AMO     Document 26     Filed 07/22/24     Page 5 of 5

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