Declaration of Dwayne A. Robinson in Support of 26 Administrative Motion — Oto Analytics, LLC v. Benworth Capital Partners LLC (Dkt. 27)

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U.S. District Court for the Northern District of California · No. 4:24-cv-03975-AMO · Doc. 27 · 2024-07-22 · Docket on CourtListener

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DECLARATION OF DWAYNE A. ROBINSON, ESQ. IN SUPPORT OF 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 
 
DECLARATION OF DWAYNE A. 
ROBINSON, ESQ. IN SUPPORT OF 
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 27     Filed 07/22/24     Page 1 of 4

 
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DECLARATION OF DWAYNE A. ROBINSON, ESQ. IN SUPPORT OF 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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I, Dwayne A. Robinson, hereby declare under penalty of perjury: 
I am a Partner at the law firm Kozyak Tropin & Throckmorton LLP. I submit this declaration in 
support of the Benworth’s Administrative Motion for Clarification of Deadline and/or For Extension of 
Time to Respond to Womply’s Petition. I make this declaration based on my own personal knowledge. 
If called to do so, I could and would testify to the matters contained herein. 
1. 
The Small Business Administration is a federal agency that manages the Paycheck 
Protection Program (“PPP”). The PPP provided liquidity to small businesses during the COVID-19 
pandemic so that those businesses could cover their payroll expenses. Benworth, a licensed PPP lender, 
provided such loans, mainly to minority-owned businesses with assistance from Womply. Womply 
prepared and referred PPP loans to Benworth.  
2. 
A dispute arose between Benworth and Womply, which resulted in the JAMS arbitration 
styled Oto Analytics, Inc. v. Benworth Capital Partners LLC, JAMS Ref. No. 1210038203. 
3. 
On December 21, 2024, the arbitrator issued an interim award. On May 30, 2024, the 
Arbitrator issued his initial, final award. On June 26, 2024, the Arbitrator amended the final award (the 
“Amended Final Award”) to correct the award. 
4. 
On July 1, 2024, Womply’s counsel wrote to counsel for Benworth via email requesting 
that Benworth accept service of the Petition and execute a waiver of the service of summons (the 
“Waiver”).  
5. 
A true and correct copy of the proposed Waiver that counsel for Womply sent for 
Benworth’s acceptance is attached as Exhibit 1. It required a response to the Petition “60 days from 
7/1/2024.” Benworth accepted service of process in light of the 60-day period to respond to the Petition, 
as reflected in Womply’s counsel’s email.  
6. 
On July 18, 2024, Womply’s counsel for the first time advised Benworth of its contention 
that Benworth’s response was due on July 19, 2024. 
7. 
According to Womply, the Petition is a motion not subject to a Rule 12 response as 
reflected in its waiver of summons form that Womply submitted to Benworth. Womply argued that 
Case 4:24-cv-03975-AMO     Document 27     Filed 07/22/24     Page 2 of 4

 
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DECLARATION OF DWAYNE A. ROBINSON, ESQ. IN SUPPORT OF 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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Benworth had fourteen days from the date it accepted service to respond to the Petition to Confirm—
instead of the 60 days allowed by the Waiver that Womply proposed on July 1. 
8. 
On July 18, 2024 (and continuing the following day), the parties conferred via email 
attempting to resolve this timing dispute. 
9. 
Despite its prior agreement as reflected in the Waiver, Womply demanded a response to 
the Petition by July 23, 2024. 
10. 
The parties entered into a stipulation which was filed with the Court, that no response will 
be due prior to July 23, 2024. ECF No. 24. 
11. 
On July 22, 2024, Benworth invited Womply to confer via video conference in a final 
attempt to resolve this issue without the Court’s involvement.  
12. 
At that conference, the undersigned explained that (1) the Federal Arbitration Act 
(“FAA”) precludes confirmation of an award if it is vacated, modified or corrected and (2) the FAA 
grants Benworth three months to petition a court to vacate the award.  
13. 
The undersigned also explained Benworth’s position: the FAA contemplates that a court 
will consider arguments for vacatur prior to confirming the award. Because the FAA provides for a three-
month period to seek vacatur, requiring a response prior to the expiration of that period would conflict 
with the rights afforded Benworth under the FAA. 
14. 
For these reasons, Benworth will suffer substantial prejudice if it is forced to respond 
prematurely to Womply’s Petition.  
15. 
Womply disagreed. According to Womply, the Court should hear the merits of its Petition 
now, confirm the award, and enter a judgment. Then, weeks later, when Benworth files its petition to 
vacate the award, the Court should again hear arguments on the merits of the underlying dispute and then 
consider whether to vacate the award, and its prior judgment. 
16. 
Because the parties could not agree, a stipulation could not be obtained regarding the relief 
requested in Benworth’s administrative motion. Nor was it possible to submit this or the prior stipulation 
Case 4:24-cv-03975-AMO     Document 27     Filed 07/22/24     Page 3 of 4

 
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DECLARATION OF DWAYNE A. ROBINSON, ESQ. IN SUPPORT OF 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 week in advance because Womply never disclosed its position—that a time of less than 60 days existed 
for Benworth to submit its response to the Petition—until the day before the alleged deadline.  
17. 
The following scheduling modification occurred in this case:  
a. 
On July 16, the Court vacated the ADR and Rule 26 discovery deadlines set by the 
Initial Case Management Scheduling Order (ECF No. 20). 
b. 
On July 22, the Court granted the parties’ stipulation to extend Benworth’s 
deadline to respond to Womply’s Petition to July 23, 2024. (ECF No. 25). 
18. 
No other schedule has been entered for the case 
 
I declare under penalty of perjury under the laws of the United States that the foregoing is true 
and correct. Executed this July 22, 2024, at Miami, Florida. 
 
 
/s/ Dwayne A. Robinson 
 
Dwayne A. Robinson 
 
 
ATTESTATION 
I, Simon S. Grille, am the ECF User whose identification and password are being used to file 
this Declaration of Dwayne A. Robinson, Esq. in Support of Benworth’s Administrative Motion for 
Clarification of Deadline and/or Extension of Time to Respond to Womply’s Petition Pursuant to Civil 
L.R. 5-1(i)(3), I attest under penalty of perjury that concurrence in this filing has been obtained from 
counsel. 
 
/s/ Simon S. Grille 
 
 
Simon S. Grille 
 
 
Case 4:24-cv-03975-AMO     Document 27     Filed 07/22/24     Page 4 of 4

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