Opinion
CIVIL ACTION NO. 12-0850
07-26-2012
STEVE A. DUCK AND TONUIA DUCK v. FRIENDCO, INC., ET AL.
JUDGE TOM STAGG
MAG. JUDGE KAREN L. HAYES
REPORT AND RECOMMENDATION
Before the undersigned Magistrate Judge, on reference from the District Court, are the following motions, 1) "Motion to Dismiss Under Rule 12(B) for Lack of Jurisdiction, Improper Venue, and/or Failure to State a Claim" [doc. # 13] filed by defendant, Friendco, Inc., and joined in by co-defendant, Waverlee Homes, Inc. [doc. # 17]; 2) motion to dismiss filed by defendant and cross-defendant, James Cullins (incorrectly named as "James Cullen") (see doc. #s 66 & 63); and 3) a joint motion to compel arbitration and stay proceedings [doc. # 69]. The applicable delays have run; thus, the motions are now ripe.
On July 23, 2012, the parties jointly stipulated, in relevant part,
1. That the Plaintiffs' Complaint initiating the instant action is subject to mandatory and binding arbitration, and the claims are governed by the Federal Arbitration Act, 9 U.S.C. § 1.
2. That the Cross-claims filed herein by 21st Mortgage and Waverlee shall be subject to mandatory and binding arbitration.
3. That Separate Defendant James Cullins voluntarily agrees that all claims asserted against him in the instant action, including those raised in the Complaint and Cross-claims, shall be subject to mandatory and binding arbitration.
4. That the Motion to Dismiss filed by James Cullins on June 1, 2012
shall be withdrawn.
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12. That all proceedings in the instant action shall be stayed pending the conclusion of the arbitration.
13. That the parties request that this Court order the relief agreed to herein. JOINT STIPULATION FOR ARBITRATION OF CLAIMS [doc. # 74].
Accordingly,
IT IS RECOMMENDED that the joint motion to compel arbitration and stay proceedings [doc. # 69] be GRANTED, pursuant to the terms of the parties' Joint Stipulation [doc. # 74].
IT IS FURTHER RECOMMENDED that the motion to dismiss filed by defendant and cross-defendant, James Cullins (incorrectly named as "James Cullen") (see doc. #s 66 & 63) be deemed WITHDRAWN.
IT IS FURTHER RECOMMENDED that the "Motion to Dismiss Under Rule 12(B) for Lack of Jurisdiction, Improper Venue, and/or Failure to State a Claim" [doc. # 13] filed by defendant, Friendco, Inc., and joined in by co-defendant, Waverlee Homes, Inc. [doc. # 17] be DENIED, without prejudice to the right to re-urge any portion of the motion(s) that may survive arbitration;
IT IS FURTHER RECOMMENDED that the matter be STAYED pending arbitration, subject to the parties's obligation to file a joint status report every six months.
Under the provisions of 28 U.S.C. §636(b)(1)(C) and FRCP Rule 72(b), the parties have fourteen (14) days from service of this Report and Recommendation to file specific, written objections with the Clerk of Court. A party may respond to another party's objections within fourteen (14) days after being served with a copy thereof. A courtesy copy of any objection or response or request for extension of time shall be furnished to the District Judge at the time of filing. Timely objections will be considered by the District Judge before he makes a final ruling.
A PARTY'S FAILURE TO FILE WRITTEN OBJECTIONS TO THE PROPOSED FINDINGS, CONCLUSIONS AND RECOMMENDATIONS CONTAINED IN THIS REPORT WITHIN FOURTEEN (14) DAYS FROM THE DATE OF ITS SERVICE SHALL BAR AN AGGRIEVED PARTY, EXCEPT ON GROUNDS OF PLAIN ERROR, FROM ATTACKING ON APPEAL THE UNOBJECTED-TO PROPOSED FACTUAL FINDINGS AND LEGAL CONCLUSIONS ACCEPTED BY THE DISTRICT JUDGE.
THUS DONE AND SIGNED in chambers, at Monroe, Louisiana, this 26th day of July 2012.
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KAREN L. HAYES
U. S. MAGISTRATE JUDGE