Opinion
No. 01 Civ. 10868 (LTS)(HBP).
March 29, 2005
LOVELL STEWART, LLP, Christopher Lovell, Esq., Gary S. Jacobson, Esq., New York, NY, HAGENS BERMAN LLP, Steve W. Berman, Esq., Jeniphr A.E. Breckenridge, Esq., Seattle, WA, and Kevin P. Roddy, Esq., Los Angeles, CA, Attorneys for Plaintiffs.
PAUL, WEISS, RIFKIND, WHARTON GARRISON, Gerard E. Harper, Esq., John Baughman, Esq., Eric Alan Stone, Esq., New York, NY, Attorneys for Defendants.
OPINION AND ORDER
Plaintiffs in this action are former clients of the law firm Napoli, Kaiser Bern, LLP ("NKB"). They bring this putative class action against NKB and its founding partners for alleged violations of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961- 1968, malpractice, breach of fiduciary duty, and conspiracy. Plaintiffs' allegations arise from NKB's representation of Plaintiffs in connection with their now-settled personal injury claims against American Home Products ("AHP") and other diet drug manufacturers relating to Plaintiffs' use of a diet drug regimen called "Fen-Phen." Plaintiffs intend to seek certification of a class of about 5600 persons, all of whom were represented by NKB in connection with their personal injury claims arising from their use of these diet drugs.
Before the Court is the motion of Defendants NKB, Paul J. Napoli ("Napoli"), Gerald Kaiser ("Kaiser") and Marc Jay Bern ("Bern") to dismiss the Amended Complaint or, in the alternative, stay the instant action pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(6) and 9(b), and 9 U.S.C. § 3, as well as the motion of Plaintiffs William Buckwalter ("Buckwalter"), Beverly Barker ("Barker") and Christine Dickey ("Dickey") to strike certain evidence or, in the alternative, for limited discovery related to the jurisdictional issues raised by Defendants in their motion to dismiss.
For the following reasons, Defendants' motion to dismiss the Amended Complaint is granted.
BACKGROUND
The following facts are taken from the Amended Complaint, the factual allegations of which are taken as true for the purposes of Defendants' motion to dismiss, and documents that are incorporated by reference in the pleadings, see Rizzo v. The MacManus Group, Inc., 158 F. Supp. 2d 297, 301 (S.D.N.Y. 2001), as well as certain other evidence outside the pleadings which is being considered only in connection with Defendant's motion to dismiss for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1). See Zappia Middle East Construction Co. Ltd. v. Emirate of Abu Dhabi, 215 F.3d 247, 253 (2d Cir. 2000).
In late 1999, many of the plaintiffs in the MDL Case settled their claims with AHP, the only solvent defendant. (Id. ¶ 4.) AHP agreed to pay up to $3.75 billion dollars to settle the claims. In August 2000, Judge Bechtle approved the settlement (the "National Settlement") as fair and reasonable to the members of the class. (Id. ¶¶ 4, 39; Declaration of Paul J. Napoli, dated April 4, 2002, ("Napoli Decl.") ¶ 11.) The settlement included matrices for determining individual victims' damages, and capped attorneys' fees at 9 percent. (Id. ¶¶ 4, 40.) Certain of plaintiffs' personal injury lawyers, including NKB, were vocal in their criticism of the National Settlement, contending that it undervalued individual claims and under-compensated certain lawyers. (Id. ¶¶ 4-5, 58-59.)
NKB advised certain of its clients to opt-out of the class and decline to take part in the National Settlement. In convincing those clients to opt-out, NKB allegedly led them to believe that their cases would receive individualized treatment and that "staggering results would be obtained" via the prosecution of their individual cases. (Id. ¶¶ 63, 68.) NKB recruited clients directly and also teamed up with other law firms around the country, who served as brokers in referring clients to NKB in exchange for a share of any fees that NKB would eventually obtain in representing such clients. (Id. ¶ 69.) Plaintiffs also allege that certain NKB clients were opted-out of the National Settlement without the clients' knowledge. (Id. ¶ 70.)
In addition to convincing thousands of plaintiffs whom it had represented in the MDL Case to opt-out of the National Settlement, NKB was successful in signing up thousands of opt-out plaintiffs who had previously been represented by other firms. (Id. ¶ 74.) Having committed to represent about 5,600 individual diet drug clients, NKB began in the fall of 1997 to file personal injury actions in New York Supreme Court on behalf of these clients (Id.; Napoli Decl. ¶ 12.) These actions were eventually consolidated before Justice Helen Freedman in New York State Supreme Court, New York County, as In re New York Diet Drug Litig., Index No. 700000/98. (Napoli Decl. ¶ 7.)
Named Plaintiffs Buckwalter, Barker and Dickey were three of the clients on behalf of whom NKB brought Fen-Phen claims in New York Supreme Court. (Napoli Decl. ¶ 6.) All three were referred to NKB by the Arizona law firm Goldberg Osborne, and all three signed retainer agreements with both NKB and Goldberg Osborne. (Id.; Exh, B.) Each of the retainer agreements provides that "Client and Attorney agree to submit any dispute arising between them, from the terms of [the] agreement, or from the breach thereof, to binding arbitration pursuant to the rules of the American Arbitration Association, or the rules of the State Bar of Arizona, whichever may prove applicable." (Id.)
NKB lawyers, including certain of the individual defendants, and "apparently other lawyers, whom plaintiffs and the class did not hire," eventually met with representatives from AHP to discuss the cases that NKB had filed. (Am. Compl. ¶ 78.) AHP offered to settle the claims of all of the individual Fen-Phen plaintiffs represented by NKB for a lump sum, provided that NKB would agree to stop its recruitment of additional clients and halt its prosecution of those cases it had already filed on behalf of existing clients. (Id.) The lump sum settlement amount would be payable to NKB in installments, and determination of settlement amounts for individual claims, and the distribution of those amounts, would be left solely to the discretion of NKB. (Id.) No formula was established for setting a dollar amount for individual plaintiffs' claims. (Id. ¶ 85.)
NKB agreed to the settlement, which was believed to be worth hundreds of millions of dollars. Plaintiffs allege that NKB's contingency fee is about 33 1/3 percent of the settlement amount. (Id. ¶¶ 81-82.)
On January 13, 2001, Justice Freedman appointed retired Supreme Court Justice Michael Dontzin to serve as Special Master to oversee the settlement process, review the proposed settlement and mediate disputes with clients unsatisfied with their offers. (Napoli Decl. ¶ 17; Exh. G.) In October 2001, Special Master Dontzin filed a report with the Supreme Court confirming his recommendation that the settlements reached were fair and reasonable, and finding that NKB properly complied with its ethical obligations with respect to its representation of its clients relating to the settlement. (Id. ¶ 23, Exh. J.) By Amended Order dated November 7, 2001, Justice Freedman confirmed Special Master Dontzin's findings and conclusions, and adjudged the settlement to be "fair and reasonable" and in conformance with "all ethical requirements." (Id. ¶ 24, Exh. K.) Justice Freedman's Amended Order further provided that "[j]urisdiction is exclusively retained by this Court for any and all future matters and/or claims and/or disputes involving the settlement of claims of all diet drug claimants represented by represented by [NKB] including the resolution, determination and settlement of all pending or settled claims and the distribution of monies to claimants or referral attorneys." (Id.) On March 29, 2004, Justice Freedman recused herself from certain cases involving Defendants that are related to the issues presented in the case at bar. (Exh. A to Pls' letter to the Court, dated March 23, 2005.)
Plaintiffs Buckwalter, Barker and Dickey were among those who ultimately accepted settlement amounts pursuant to the gross settlement accord with AHP reached in New York Supreme Court. (Napoli Decl. ¶ 21.)
Plaintiffs allege that NKB and the individual defendants agreed among themselves to settle the claims of individuals who were referred by other lawyers for lower amounts than the claims of clients who had retained NKB directly in order to minimize the amounts NKB paid in referral fees, and also contend that NKB and the individual defendants engaged in a scheme to convince the individual plaintiffs to accept the settlement amounts that they recommended through various pressure tactics, including misleading and inaccurate letters, coercive telephone conversations and hotel room meetings with clients, and testimonials from a registered nurse on the NKB payroll that the settlement amounts offered to individual clients provided accurate compensation for the injuries suffered. (Id. ¶¶ 9, 85-105.) In addition, Plaintiffs also allege that NKB and the individual defendants deducted false costs and disbursements from their clients' final settlement amounts. (Id. ¶ 9.)
Plaintiffs, contending that juries in similar cases over the years have awarded damages in excess of the settlement amounts paid to many of NKB's clients, allege that achieving a settlement such as the one obtained with AHP was the main objective of a scheme by which NKB and the individual defendants, despite promising clients that their cases would be given individualized attention, sought to amass a large enough collection of clients willing to opt-out of the National Settlement to leverage AHP into a massive lump sum settlement between AHP and NKB that would enable NKB to maximize its profits while minimizing the amount of work it needed to do to secure such profits. (Id. ¶¶ 9, 63, 72, 112-13.)
DISCUSSION
Rule 12(b)(1), 12(b)(6) and 9(b) Standards
"`A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.'"Rodriguez v. Haynes, 341 F. Supp. 2d 416, 420 (S.D.N.Y. 2004) (quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)). Once subject matter jurisdiction has been challenged, the burden is on the party asserting jurisdiction to prove by a preponderance of the evidence that the Court has subject matter jurisdiction of its claims. Deajess Medical Imaging PD v. Allstate Ins. Co., No. 03 Civ. 3920 (RWS), 2004 WL 1632596, at *2 (S.D.N.Y. July 22, 2004); Callahan v. United States, 329 F. Supp. 2d 404, 406 (S.D.N.Y. 2004). In deciding a motion to dismiss for lack of subject matter jurisdiction, "the court must accept the material factual allegations contained in the complaint." Deajess, 2004 WL 1632596 at *2. However, "the court may resolve disputed jurisdictional factual issues by reference to evidence outside the pleadings," and "may decide the matter on the basis of [such] affidavits or other evidence." Id.
Under Federal Rule of Civil Procedure 12(b)(6), a claim can be dismissed for "failure to state a claim upon which relief can be granted." A court should not grant a motion to dismiss for failure to state a claim "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). In deciding a motion to dismiss under Rule 12(b)(6), "[t]he task of the court . . . is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof."Rodriguez, 341 F. Supp. 2d at 421 (internal quotation marks and citation omitted). "[C]ourts must accept all factual allegations in the complaint as true and draw all reasonable inferences in plaintiff's favor." Id.
Federal Rule of Civil Procedure 9(b) requires that "[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity." Fed.R.Civ.P. 9(b). A fraud complaint must, therefore, "(1) specify the statements that the plaintiff contends were fraudulent, (2) identify the speaker, (3) state where and when the statements were made, and (4) explain why the statements were fraudulent."Wood v. Inc. Village of Patchogue of New York, 311 F. Supp. 2d. 344, 351 (E.D.N.Y. 2004) (internal quotation marks and citations omitted).
Section 3 of the Federal Arbitration Act
The Federal Arbitration Act ("FAA") provides that, if a suit is brought in federal court "upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement. . . ." 9 U.S.C.A. § 3 (West 1999). Under Section 3, "`where a court is satisfied that a dispute is arbitrable, it must stay proceedings and order the parties to proceed to an arbitration.'" Milgrim v. Backroads, Inc., 142 F. Supp. 2d 471, 476 (S.D.N.Y. 2001) (quoting Berger v. Cantor Fitzgerald Sec., 967 F. Supp. 91, 93 (S.D.N.Y. 1997)).
Defendants' Contention that the Amended Complaint Should Be Dismissed for Lack of Subject Matter Jurisdiction Pursuant to the Rooker-Feldman Doctrine
Invoking the Rooker-Feldman doctrine, Defendants argue that the Court lacks subject matter jurisdiction of Plaintiffs' claims. The doctrine "provides that, because only the United States Supreme Court may review a final decision of a state court, federal district courts do not have jurisdiction over claims that have already been decided, or that are `inextricably intertwined' with issues that have already been decided, by a state court." Bridgewater Operating Corp. v. Feldstein, 346 F.3d 27, 29 (2d Cir. 2003). Thus, under the Rooker-Feldman doctrine, district courts "lack subject matter jurisdiction over actions that: (1) directly challenge a state court holding or decision; or (2) indirectly challenge a state court holding or decision by raising claims in federal court that are inextricably intertwined with the state court judgment." Mejia v. The City of New York, No. 01 Civ. 3381 (GBD), 2004 WL 2884407, at *11 (S.D.N.Y. Dec. 10, 2004) (citing District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 486 (1983); Rooker v. Fidelity Trust, 263 U.S. 413 (1923)). "`[A] federal claim is inextricably intertwined with the state-court judgment if the federal claim succeeds only to the extent that the state court wrongly decided the issues before it.'" Walker v. New York, 345 F. Supp. 2d 283, 287 (E.D.N.Y. 2004) (quoting Hachamovitch v. DeBuono, 159 F.3d 687, 694-95 (2d Cir. 1998) (internal citation and quotation marks omitted)). The Second Circuit has held that "the Supreme Court's use of `inextricably intertwined' means, at a minimum, that where a federal plaintiff had an opportunity to litigate a claim in a state proceeding (as either the plaintiff or defendant in that proceeding), subsequent litigation of the claim will be barred under the Rooker-Feldman doctrine if it would be barred under the principles of preclusion." Hachamovitch, 159 F.3d at 695 (quoting Moccio v. New York State Office of Court Admin., 95 F.3d 195, 199-200 (2d Cir. 1996)).
Defendants contend that Plaintiffs' claims are "inextricably intertwined" with the state court decision approving Plaintiffs' settlements. Specifically, Defendants argue that consideration of the allegations in Plaintiffs' Amended Complaint that the settlements were unfair, too low, effected in violation of ethical and disciplinary rules, and based on improper factors requires the Court to review the merits of Justice Freedman's determinations that the settlements were "fair and reasonable" and in conformance "with all ethical requirements." (Amended Order, dated November 2, 2001, Napoli Decl., Exh. K.)
While Plaintiffs' claims regarding the manner in which the settlements were effected and the way that settlement amounts were distributed do implicate the validity of the state court order affirming the fairness, reasonableness and ethical propriety of the settlements, the Court notes that some questions have been raised regarding the propriety of applying the Rooker-Feldman doctrine in a legal malpractice action such as this one. See Kamilewicz v. Bank of Boston Corp., 92 F.3d 506 (7th Cir. 1996) (Easterbrook, J., dissenting). The Court, however, need not reach this issue because it declines to exercise subject matter jurisdiction to rule on the merits given that the parties have executed valid arbitration agreements and Plaintiff's' claims are within the scope of those arbitration agreements. As explained in the next section of this Opinion, Plaintiffs' action will be dismissed without prejudice to pursuit of their claims in the arbitral forum.
The Court has jurisdiction to determine whether the issues present in this case are arbitrable, and whether the instant action should be stayed or dismissed in light of the parties' arbitration clause, pursuant to 28 U.S.C. § 1332.
Defendants' Contention that the Court Should Dismiss or Stay the Instant Action Pending Arbitration of Plaintiffs' Claims
Defendants contend that the Court should either dismiss or stay the instant action on the ground that the three named Plaintiffs are required to submit their claims in this action to arbitration pursuant to their retainer agreements with NKB, Goldberg Osborne, and the Law Offices of Marc Jay Bern, LLP. Each of Plaintiffs' respective retainer agreements includes a separate section, labeled "Arbitration," providing that "Client and Attorney agree to submit any dispute arising between them, from the terms of this agreement, or from the breach thereof, to binding arbitration pursuant to the rules of the American Arbitration Association, or the rules of the State Bar of Arizona, whichever may prove applicable." (Decl. of Chris Dickey, dated May 13, 2002, Exh. A; Decl. of Beverly Barker, dated May 13, 2002, Exh. A; Decl of William Buckwalter, dated May 9, 2002, Exh. A.)
Plaintiffs do not dispute that the claims they have brought in the instant action fall within the scope of the arbitration clauses. They contend, however, that the Court should not enforce the arbitration clauses because, under the circumstances of the retentions at issue here, inclusion of the clauses in the retainer agreements constituted a breach of the fiduciary duties of NKB and the individual Defendants to their clients. Plaintiffs argue that the arbitration clauses at issue here were part of retainer agreements that were drafted either by Defendants or by other counsel who referred clients to Defendants and were mailed to Plaintiffs without any effort being made to explain to Plaintiffs the meaning and consequences of the arbitration clauses. Plaintiffs Barker, Buckwalter and Dickey have all filed declarations indicating that, although they signed their respective retainer agreements, they had no idea that such agreements contained arbitration clauses, or what the implications of the arbitration clauses were. In addition, each states in his or her respective declaration that, had he or she understood that the arbitration clause could mean that he or she was giving up his or her rights to have any claims against NKB heard in court before a jury, he or she would not have executed the retainer agreement. (See Decl. of Beverly Barker, dated May 13, 2002, ¶¶ 3-4; Decl of William Buckwalter, dated May 9, 2002, ¶ 2; Decl. of Chris Dickey, dated May 13, 2002, ¶¶ 3-4.)
The Court has the power under Section 3 of the FAA "to stay proceedings when issues are referrable to arbitration pursuant to a written agreement." Merrill Lynch Commodities Inc. v. Richal Shipping Corp., 581 F. Supp. 933, 936 (S.D.N.Y. 1984). Under Section 3, "the Court may only consider (1) whether there exists an agreement to arbitrate and (2) its scope." Id. "`The question of whether a dispute between the parties is covered by the arbitration agreement is for the courts to decide.'" Id. (quoting Prudential Lines, Inc. v. Exxon Corp., 704 F.2d 59, 643 (2d Cir. 1983)).
Arguing that the Court should reject the arbitration agreements, Plaintiffs contend that the circumstances surrounding the execution of the retainer agreements ran afoul of certain bar association and state bar ethics opinions advising that an attorney should include an arbitration clause in a retainer agreement with a client only if the attorney full discloses in advance the consequences of that clause and allows the client the opportunity to seek independent counsel regarding the clause. (See Pl's Mem. of Law in Opp. to Motion to Dismiss or Stay Action at 13-14.) Plaintiffs also point to a line of judicial decisions applying New York law which have held that
an attorney who seeks to avail himself of a contract made with his client, is bound to establish affirmatively that it was made by the client with full knowledge of all the material circumstances known to the attorney, and was in every respect free from fraud on his part, or misconception on the part of his client, and that a reasonable use was made by the attorney of the confidence reposed in him. Under this rule it is not necessary for the client to show that the agreement was obtained by fraud or undue influence on the part of the attorney. . . . Even in the absence of such misconduct the agreement may be invalid if it appears that the attorney got the better of the bargain, unless he can show that the client was fully aware of the consequences and that there was no exploitation of the client's confidence in the attorney.Greene v. Greene, 56 N.Y.2d 86, 92 (N.Y. 1982) (internal citations and quotation marks omitted.) Thus, "if the attorney has reason to believe that the client does not have a complete understanding of a purported contract between them that he is asking the client to understand, the attorney must, in order to make the agreement enforceable, discuss the terms with the client to ensure that the client is `fully and fairly informed of the consequences.'" Mar Oil, S.A. v. Morrisey, 982 F.2d 830, 839 (2d Cir. 1993) (quoting Greene, 56 N.Y.2d at 93).
The Court finds that the arbitration clauses in the retainer agreements signed by the named Plaintiffs are enforceable, and that the claims brought by Plaintiffs in the instant action are within the scope of those clauses. It is well settled that federal and New York State public policy favor the enforcement of arbitration agreements.See Cap Gemini Ernst Young U.S. LLC. v. Arentowicz, No. 04 Civ. 0299 (DAB), 2004 WL 1386145, at *3 (S.D.N.Y. June 22, 2004);BAE Automated Sys., Inc. v. Morse Diesel Int'l, Inc., No. 01 CIV. 0217 (SAS), 2001 WL 547133, at *2 (S.D.N.Y. May 22, 2001). Further, the ethics opinions cited by Plaintiffs are not binding on the Court, and Plaintiffs have not demonstrated fraud or the use of undue influence on the part of Defendants. Moreover, unlike in Greene or Mar Oil, it cannot be said here that Defendants got the better of the bargain with respect to the arbitration clause. An arbitration clause does not necessarily favor one party over another.
Plaintiffs also have not demonstrated that Defendants had reason to believe that the named Plaintiffs did not fully comprehend the arbitration clause in their respective retainer agreements. The clauses, like the rest of the language in the retention agreements, are written in clear, everyday language. Moreover, it is undisputed that each of the named Plaintiffs' declarations is accompanied by a copy of a letter from Goldberg Osborne (a law firm working with NKB on the Fen-Phen cases) that was sent to the respective Plaintiff either along with the proposed retainer agreement or after the proposed retainer agreement was sent to the Plaintiff but before it was executed, inviting the Plaintiff to call with any inquiries he or she had in connection with the retainer agreement. (Decl. of Chris Dickey, dated May 13, 2002, Exh. A; Decl. of Beverly Barker, dated May 13, 2002, Exh. A; Decl of William Buckwalter, dated May 9, 2002, Exh. A.) The letter sent to Plaintiff Dickey along with the proposed retainer agreement even set up a time for a telephone appointment and, although it did not refer specifically to the arbitration clause, contained a paragraph stating that Dickey would have an opportunity during the telephone appointment "to discuss any questions [Dickey] might have about [Dickey's] individual case or other aspects of this diet drug litigation." Plaintiffs have not indicated that they ever expressed to Defendants, or any of the personnel working with Defendants, that they were having any difficulties understanding their respective retainer agreements. Thus, the Court finds, based on these undisputed facts, that Defendants had no reason to believe that further explanation of the provisions within the agreement was necessary, and therefore that Defendants did not exploit their clients' confidences in connection with the retainer agreements. Accordingly, the Court concludes that Plaintiffs have not presented facts sufficient to overcome the facial validity of the respective arbitration clauses; the Court therefore finds that the arbitration clauses contained within the retainer agreements are enforceable.
Further, the Court finds that Plaintiffs' claims for violations of RICO, breach of duty of care/malpractice, breach of fiduciary duty and conspiracy are within the scope of the arbitration clauses. The clear language of the clauses provides that all disputes arising from the retainer agreements are to be resolved through arbitration. Here, all of the claims at issue arise from the relationships between Plaintiffs and their lawyers, the circumstances of the respective retentions, and the results of those retentions. Moreover, even Plaintiffs' federal RICO claim is within the scope of the clauses given that it relates to the establishment of the lawyer-client relationships and the negotiation of the settlement, and the Supreme Court has held that RICO claims are subject to arbitration. Shearson/American Express, Inc. v. McMahon, 482 U.S. 220, 242 (1987). Thus, the Court concludes that all of Plaintiffs' claims are clearly within the scope of the arbitration clauses contained within the respective retainer agreements.
Even though Section 3 of the Federal Arbitration Act by its terms requires a federal court to stay an action to resolve a dispute subject to an arbitration agreement between the parties, "[w]hen all of the issues raised in a litigation lie within the scope of an arbitration agreement, courts have the discretion to dismiss the action rather than issue an order directing a stay."Sea Spray Holdings, Ltd. v. Pali Financial Group, Inc., 269 F. Supp. 2d 356, 366 (S.D.N.Y. 2003); Milgrim, 142 F. Supp. 2d at 476; 9 U.S.C. § 3. Here, since the Court has concluded that all of Plaintiffs' claims in the instant litigation are within the scope of the parties' arbitration agreement, the Court finds that it is appropriate to dismiss Plaintiffs' Amended Complaint without prejudice to Plaintiffs pursuing their claims in an arbitral forum.
CONCLUSION
For the foregoing reasons, Defendants' motion to dismiss the Amended Complaint pursuant to the Federal Arbitration Act is granted. Accordingly, Plaintiffs' claims are dismissed without prejudice to pursuit of their claims in an arbitral forum. In light of the Court's decision to dismiss the Amended Complaint pursuant to the Federal Arbitration Act, the Court need not decide Defendants' motion to dismiss the Amended Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) or 12(b)(6), or address Defendants' contention that the Court should, in the interests of comity and federalism, abstain from exercising jurisdiction in deference to a parallel state action pursuant to the doctrine applied by the Supreme Court inColorado River Water Conservation Dist. v. United States, 424 U.S. 800 (1976).
Plaintiffs have moved to strike certain submissions made by Defendants in connection with the jurisdictional issues raised in Defendants' motion to dismiss, namely, the Napoli Declaration and accompanying exhibits F, G and J through V. Plaintiffs have also moved, in the alternative, for limited discovery directed to the disputed jurisdictional issues. In light of the Court's determination as to the effect of the arbitration provisions of the retention agreements, the motion is denied as moot.
IT IS SO ORDERED.