Opinion
Civ. No. 04-3908 (RHK/AJB).
December 8, 2004
Karen D. McDaniel and Rebecca J. Bishop, Altera Law Group, Minneapolis, Minnesota, for Plaintiff.
Alan G. Carlson and Tara C. Norgard, Carlson, Caspers, Vandenburgh Lindquist, P.A., Minneapolis, Minnesota, for Defendant.
MEMORANDUM OPINION AND ORDER
INTRODUCTION
This matter is before the Court on Defendant Health Enhancement Systems, Inc.'s ("HES") Motion to Dismiss or Stay Litigation and Compel Arbitration. Plaintiff HealthPartners, Inc. ("HP") sued HES for breach of contract, copyright infringement, fraud, and violation of the Uniform Trade Secrets Act. HES contends that the parties agreed to submit all disputes to arbitration. For the reasons that follow, the Court determines that the instant dispute is arbitrable and will grant HES's Motion.
BACKGROUND
The parties are in the business of developing fitness programs — interactive plans encouraging participants to get more exercise. Both HP and HES are independently involved in developing these fitness programs, and it is this shared expertise that brought the companies together and that eventually led to this lawsuit. In the late 1990's, HP created the 10,000 Steps Program ("10,000 Steps"), a walking program developed in response to a directive from the United States Attorney General that Americans should be more physically active. Initially, 10,000 Steps was a paper-based program. HP wanted to expand the program to the internet. HES was known to have developed numerous paper and internet-based fitness programs and HP was interested in capitalizing on that experience.In late 2001, HP approached HES to develop and host a website for 10,000 Steps. The parties worked together from early 2002 until September 2003 and entered into three agreements during that time ("the agreements"). They executed two agreements in April 2002 and a third in April 2003. The agreements provided for HES's development of the 10,000 Steps website, HES's hosting of the website, and HES's development of a second website for HP and one of HP's customers. Because both companies were involved in creating fitness programs, HES negotiated to include language in the non-compete clause of the agreements reserving its rights to develop and sell its own step program, 10K-A-Day. The agreements also protected HP's product by precluding HES from developing "a substantially identical walking program to [HP's] program for a minimum of two years" after the parties' contractual relationship ended. (Condon Decl. ¶ 7.)
In early 2002, at HP's request, HES proposed an initial draft contract to govern the parties' working relationship. That draft contract did not contain any of the provisions relevant to the instant motion and, in particular, contained no provision covering noncompete issues or requiring that disputes between the parties be submitted to arbitration. HP then took over the drafting of the agreements. Carlton Ammons, Associate Counsel in HP's law department, acted as "scrivener of the deal" and "replaced the draft contract HES sent with a draft contract that contained specific confidentiality and non-compete provisions." (Ammons Decl. ¶¶ 4, 8.) Ammons did not feel that HES's proposed contract "provide[d] adequate protection against HES using [HP's] intellectual property to compete against [HP] in the marketplace." (Id. ¶ 7.) HP's draft contract also included a comprehensive arbitration clause providing in part that "[a]ny claim, controversy or dispute, whether sounding in contract, statute tort, fraud, misrepresentation or other legal theory, between the parties to this Agreement . . . will be resolved by arbitration." (Condon Decl. Ex. A.)
In drafting the agreements, Ammons states that his "intent" was to "carve out the issues of breach of confidentiality and breach of non-compete from the arbitration clause and leave those matters for the resolution by the Court." (Ammons Decl. ¶ 13.) He now asserts that his recommendation that HP enter into the agreements was "on the basis of [his] belief" that this had been accomplished in the drafting. (Id. ¶ 14.) HES, on the other hand, states that it entered into the agreements with the understanding "that any issues that could not be resolved between [HES and HP] would be decided in arbitration." (Witherspoon Decl. ¶ 11.)
HES launched 10K-A-Day, its own walking fitness website, in April 2003. The 10K-A-Day website raised concerns for HP; the content of the 10K-A-Day website appeared similar to the content of the 10,000 Steps website HP and HES developed. There were sporadic communications between the parties about HP's concerns from April 2003 to August 2004, at which point HP "asked [its] attorney to take over the negotiations." (Condon Decl. ¶ 34.) Eventually, HP began to suspect that HES was not only using content from the 10,000 Steps website itself, but that it was also helping HP's competitors develop websites containing such content. HP filed the current suit for damages and injunctive relief alleging, inter alia, breach of the confidentiality and noncompete provisions of the agreements. In a separate motion, HP is also seeking a preliminary injunction against HES. HES has moved to dismiss or stay this action and to compel arbitration. It has also issued a formal demand for arbitration, outside of the proceedings in this Court, pursuant to the arbitration clause in the agreements.
In view of the Court's decision to stay this action pending arbitration, HP's request for injunctive relief will be denied.
THE CONTRACTUAL PROVISIONS AND THE POSITIONS OF THE PARTIES
Several provisions of the agreements are relevant to the parties' contentions regarding the instant motion; these provisions are the same in all three agreements. The relevant contractual provisions and the parties' respective positions regarding the interpretation of those provisions are set out below.
Rather than cite to the section or article numbers of each agreement, the Court will reference the section or article numbers of one of the agreements — the "Website Development Agreement" — which is attached to the Condon Declaration as Exhibit A, and to the Witherspoon Declaration as Exhibit 2. The relevant provisions of the Website Development Agreement are numbered identically in the "Website Development and Hosting Agreement." (Condon Decl. Ex. C; Witherspoon Decl. Ex. 4.) But the numbers of these same provisions in the "Web Hosting and Services Agreement" do not correspond with the other two agreements. (Condon Decl. Ex. B; Witherspoon Decl. Ex. 3.) Articles 8, 9, 12, and 13 in the Website Development Agreement correspond with Articles 6, 7, 10 and 12 in the Web Hosting and Services Agreement.
The arbitration clause provides that:
13.5.1 Any claim, controversy or dispute, whether sounding in contract, statute tort, fraud, misrepresentation or other legal theory, between the parties to this Agreement . . . will be resolved by arbitration.
HES contends that the present dispute is arbitrable because the arbitration clause is broadly drafted and the agreements do not contain any express exceptions to the clause. According to HP, however, when each contractual provision is given effect, the agreements only compel the arbitration of some disputes.
Following the arbitration clause is a provision limiting the arbitrator's ability to award any relief other than compensatory damages:
13.5.3 The arbitrator will only have authority to award compensatory damages and will not have authority to award punitive damages, exemplary damages, other non-compensatory damages, or any other form of relief; the parties hereby waive all rights to and claims for relief other than compensatory damages.
This limitation on the arbitrator's authority, and the corresponding waiver by the parties of their rights to seek relief other than compensatory damages, is significant because the agreements do allow HP to seek injunctive relief for the violation of certain contractual provisions. Those provisions, the confidentiality and non-compete sections, are discussed below.
In addition to the limitation on the arbitrator's authority to award certain types of relief, the agreements contain the following "Limitation on Liability" provision:
12.1 The parties agree to limit their liability to each other under this Agreement to direct damages for negligent or willful misconduct in performing their respective responsibilities under this Agreement. NO PARTY SHALL BE LIABLE TO THE OTHER PARTIES FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES. . . .
The Limitation on Liability clause is inapplicable to the confidentiality and non-compete sections of the agreements. Those two sections detail the rights and responsibilities of the parties with regard to confidential or proprietary information and the ability of HES to work with HP's competitors. Both provisions expressly except confidentiality and noncompete violations from the Limitation on Liability clause and authorize injunctive relief and monetary damages. Specifically, they provide:
8.6 Notwithstanding the provisions of Article 12 of this Agreement (Limitation on Liability) HealthPartners may seek injunctive relief and/or monetary damages to enforce the terms of [the Confidentiality] Section.
* * *
9.1 Notwithstanding the provisions of Article 12 of this Agreement (Limitation on Liability) HealthPartners may seek injunctive relief and/or monetary damages to enforce the terms of [the Non-Compete] Section.
Sections 8.6 and 9.1 are at the heart of the instant Motion. HP alleges that HES has violated, and continues to violate, the confidentiality and non-compete provisions of the agreements. According to HP, the agreements do not require disputes regarding those provisions to be arbitrated because sections 8.6 and 9.1 allow HP to seek injunctive relief whereas section 13.5.3 prohibits the arbitrator from awarding injunctive relief. Thus, when the provisions are read together, the caveats in sections 8.6 and 9.1 also serve as exceptions to section 13.5.1, the arbitration clause. HES maintains that the caveats in sections 8.6 and 9.1 have no effect on the scope of the arbitration clause. According to HES, those sections simply provide the arbitrator with the authority to award injunctive relief for violations of the confidentiality or non-compete provisions — authority not otherwise available under the agreements.
HP directs the Court's attention to two other provisions of the agreements — a choice-of-law clause and a penalty clause — as support for its contention that the present dispute is not arbitrable. The choice-of-law clause establishes that federal and Minnesota law will govern the agreements, and provides that:
13.6 Any action arising out of or relating to this Agreement, its performance, enforcement or breach will be venued in a state or federal court situated within Hennepin County, Minnesota. Except as provided in Section 13.5, (Dispute Resolution), [HES] and its employees hereby irrevocably consent and submit to the personal jurisdiction of said courts for all such purposes. (Emphasis added.)
The penalty clause states:
13.5.4 If any party files a judicial or administrative action asserting claims subject to arbitration, as prescribed herein, and another party successfully stays such action and/or compels arbitration of said claims, the party filing said action will pay the other party's costs and expenses incurred in seeking such stay and/or compelling arbitration, including reasonable attorneys' fees. (Emphasis added.)
HP asserts that these provisions make clear that "there must necessarily be some disputes that are to be litigated." (Mem. in Opp'n at 15-16.) Specifically, HES would not have needed to submit to personal jurisdiction in section 13.6 if every dispute was arbitrable. HES counters that section 13.6 governs pre and post-arbitration procedures and does not create any exceptions to the sweeping arbitration clause. Regarding section 13.5.4, HP contends that because it provides that if a party files claims subject to arbitration certain penalties are assessed, it follows that there must be some claims that are not subject to arbitration. While HP seizes on the language "claims subject to arbitration," HES focuses on the penalties assessed against the party who brings an arbitrable issue into court. According to HES, that section only strengthens its position, because it "encourages compliance with the arbitration agreement and serves as a deterrent to a party who may be inclined to disregard that part of the contract." (Reply Mem. at 8.)
Finally, the agreements contain a provision precluding the imposition of an inference against the drafter of the agreements:
13.9 For convenience this Agreement has been drafted in final form by one of the parties; accordingly, in the event of ambiguities no inferences will be drawn against any party solely on the basis of authorship of this Agreement.
Based on the contractual provisions outlined above, HP contends that its action against HES is properly before this Court, whereas HES seeks to compel arbitration.
ANALYSIS
Through the Federal Arbitration Act (the "FAA"), Congress has established a strong federal policy in favor of arbitration.Shearson/American Express, Inc. v. McMahon, 482 U.S. 220, 226 (1987). Section 2 of the FAA provides that a written arbitration agreement in "a contract evidencing a transaction involving commerce . . . shall be valid, irrevocable, and enforceable. . . ." 9 U.S.C. § 2. Thus, "[u]nder the [FAA], where the parties have agreed to seek dispute resolution by arbitration, the courts are asked to stay their hand." Merrill Lynch, Pierce, Fenner Smith v. Hovey, 726 F.2d 1286, 1289 (8th Cir. 1984) (citation omitted). A motion to compel arbitration under the FAA involves a two-step inquiry. The Court must determine (1) whether there is a valid agreement to arbitrate between the parties and, if there is, (2) whether the dispute falls within the scope of that arbitration agreement. Pro Tech Indus., Inc. v. URS Corp., 377 F.3d 868, 871 (8th Cir. 2004). "[T]he party resisting arbitration bears the burden of proving that the claims at issue are unsuitable for arbitration." Green Tree Fin. Corp. v. Randolph, 531 U.S. 79, 91 (2000) (citations omitted).
(1) There are Valid Agreements to Arbitrate
The parties do not dispute that they have entered into valid arbitration agreements. Accordingly, the Court need not embark on an analysis of the validity of the agreements — the only issue here is whether the present dispute is arbitrable under the terms of those agreements.
(2) The Instant Dispute is Within the Scope of the Agreements to Arbitrate
The Court must determine whether the parties agreed to submit the present claims to arbitration. In doing so, it must maintain "a healthy regard for the federal policy favoring arbitration," and adhere to the Supreme Court's instruction that "any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration." Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25 (1983). The interpretation of arbitration provisions "in such a manner as to encourage arbitration" is favored where the arbitration clause is "broadly drafted." Twin City Monorail, Inc. v. Robbins Meyers, Inc., 728 F.2d 1069, 1072-73 (8th Cir. 1984) (citation omitted). Where broadly drafted, and "in the absence of any express provision excluding a particular grievance from arbitration . . . only the most forceful evidence of a purpose to exclude the claim from arbitration can prevail." ATT Techs., Inc. v. Communications Workers, 475 U.S. 651, 650 (1986) (internal quotation omitted).
Mindful of the federal policy favoring arbitration, the Court applies "ordinary state law contract principles to decide whether parties have agreed to arbitrate a particular matter." Aggrow Oils, L.L.C. v. National Union Fire Ins. Co. of Pittsburgh, Pa., 242 F.3d 777, 780 (8th Cir. 2001) (internal quotation omitted). "To interpret the terms of a contract under Minnesota law, [the Court] must initially determine whether a contract term is ambiguous." Winthrop Res. Corp. v. Eaton Hydraulics, Inc., 361 F.3d 465, 470 (8th Cir. 2004) (citations omitted). "A contract is ambiguous if, based upon its language alone, it is reasonably susceptible of more than one interpretation." Denelsbeck v. Wells Fargo Co., 666 N.W.2d 339, 346 (Minn. 2003) (internal quotation omitted). "[A] mere difference of opinion as to the proper interpretation does not render the contract ambiguous as a matter of law." Press Mach. Corp. v. Smith R.P.M. Corp., 727 F.2d 781, 784 (8th Cir. 1984) (discussing similar standard under Missouri law). "If a contract is unambiguous, the contract language must be given its plain and ordinary meaning, and shall be enforced by courts even if the result is harsh." Denelsbeck, 666 N.W.2d at 347 (internal quotation omitted).
The Court determines that the agreements in the instant case are not ambiguous and interprets them according to their plain and ordinary meaning. The arbitration clause (section 13.5.1) provides: "[a]ny claim, controversy or dispute . . . between the parties to this Agreement . . . will be resolved by arbitration." This language is quite broad and no clear exception to the arbitration clause can be found on the face of the agreements. Where there is such a sweeping arbitration clause, "[a]bsent any clear exclusionary language . . . the presumption in favor of arbitration carries the day." Teamsters Local Union No. 688 v. Indus. Wire Prods., Inc., 186 F.3d 878, 882 (8th Cir. 1999). The plain language of the agreements compels the Court's determination that the instant dispute is arbitrable because the parties did not provide otherwise. "All that is necessary is that the parties make their intent to exclude arbitration clear."Laundry, Dry Cleaning and Dye House Workers International Union v. Mahoney, 491 F.2d 1029, 1033 (8th Cir. 1974). They have failed to do so here.
HP urges the Court to read the statements in the confidentiality and non-compete provisions allowing for injunctive relief (notwithstanding section 12.1) as creating exceptions to the arbitration clause. In section 12.1, the parties "agree to limit their liability to each other . . . to direct damages. . . ." And section 13.5.3 states that "[t]he arbitrator will only have authority to award compensatory damages and will not have authority to award . . . any other form of relief." HP's argument based on these provisions proceeds in three steps: first, the non-compete and confidentiality provisions allow for injunctive relief; second, the arbitrator does not have the power to award injunctive relief; thus, actions seeking injunctive relief under those two provisions are not subject to arbitration.
The wording and structure of the agreements make clear, however, that the arbitrator's lack of authority to award injunctive relief is dependant upon the statement following the limit on the arbitrator's authority — that "the parties hereby waive all rights to and claims for relief other than compensatory damages." (Section 13.5.3 (emphasis added).) It makes sense that the non-compete and confidentiality provisions allow for injunctive relief; in fact, it would seem contrary to sound business judgment to leave HP without recourse if one of those provisions were breached. The exception to the limitation on liability in sections 8.6 and 9.1 simply lifts the restriction on HP's ability to seek certain types of relief in those circumstances. Rather than indirectly creating an exception to the extremely broad arbitration provision, the caveat creates an exception to the waiver that the parties executed in conjunction with the arbitration provision. Accordingly, section 13.5.3 — limiting the arbitrator's authority to award certain relief — does not apply in disputes regarding the confidentiality and non-compete provisions of the agreements.
On their face, the agreements do not lend themselves to the interpretation HP urges. It is only through a series of strained inferences and assumptions that HP is able to argue that disputes under the confidentiality and non-compete provisions are excepted from the arbitration clause. The Supreme Court considered a similar situation in Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52 (1995), where two clauses in an agreement could be read to overlap on the issue of the arbitrator's ability to award punitive damages. The Court noted that, because the arbitration clause provided that certain rules allowing arbitrators to award punitive damages would govern an arbitration, "the text of the arbitration clause itself surely does not support — indeed, it contradicts — the conclusion that the parties agreed to foreclose claims for punitive damages."Id. at 61. A separate provision of the agreement provided that New York law, under which arbitrators were precluded from awarding punitive damages, was to apply to disputes between the parties. At most, according to the Court, this introduced "an ambiguity into [the] arbitration agreement," and in interpreting provisions covered by the FAA, "due regard must be given to the federal policy favoring arbitration, and ambiguities as to the scope of the arbitration clause itself resolved in favor of arbitration." Id. at 62 (internal quotation omitted); see Morgan v. Smith Barney, Harris Upham Co., 729 F.2d 1163, 1165 (8th Cir. 1984) (noting that "when contract language is ambiguous or unclear, a healthy regard for the federal policy favoring arbitration requires that any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration" (internal quotations omitted)).
Here, as discussed above, the Court determines that the agreements are not ambiguous and that a straightforward reading of the relevant provisions does not manifest an intent to exclude the instant case from the broad arbitration clause. Even if the caveats in sections 8.6 and 9.1 created some ambiguity, however, such uncertainty would not be sufficient to overcome the well-established presumption in favor of arbitrability; that presumption is in full effect where, as here, the parties adopted a sweeping arbitration provision. See Twin City Monorail, Inc., 728 F.2d at 1072-73. It is also important to note that the only possible uncertainty created by the confidentiality and non-compete sections relates to the arbitrator's ability to award injunctive relief in certain circumstances. The agreements are not ambiguous or unclear regarding the scope of the arbitration clause itself — it is not limited in any way. Because HP clearly intended to maintain the ability to seek injunctive relief for breaches of the confidentiality and noncompete provisions, the parties' intent to allow the arbitrator to award such relief is clear.
Further, as the Mastrobuono Court noted, "a document should be read to give effect to all its provisions and to render them consistent with each other." 514 U.S. at 63 (citations omitted);see Fortune Funding, LLC v. Ceridian Corp, 368 F.3d 985, 987 (8th Cir. 2004) (under Minnesota law, contracts are read "to give effect to all provisions and avoid an interpretation that renders a clause meaningless" (citation omitted)). Not only does the reading that HP advocates do violence to the plain language of the arbitration clause, section 13.5.3 (limiting the arbitrator's authority) suffers as well. HP asks the Court to pick and choose which provisions of the agreements should be given effect. Specifically, the statement in section 13.5.3 limiting the arbitrator's "authority" to award any relief other than compensatory damages should be given full effect in all circumstances. But HP then conveniently bypasses the very next statement in section 13.5.3, providing that the parties "waive all rights to and claims for relief other than compensatory damages." In fact, the caveat in sections 8.6 and 9.1 — taking away the limitations on HP's ability to seek injunctive relief — cannot be given effect without logically extending to that waiver. This necessarily does away with the limit on the arbitrator's authority. HP's argument that the limit on the arbitrator remains, while the parties' waiver does not, cannot withstand the plain language of the agreements.
HP also directs the Court to section 13.6, which provides in part:
"Any action arising out of or relating to this Agreement . . . will be venued in a state or federal court situated within Hennepin County, Minnesota. Except as provided in Section 13.5, (Arbitration), [HES] and its employees hereby irrevocably consent and submit to the personal jurisdiction of said courts for all such purposes."
According to HP, because "the agreements required the parties to agree to venue disputes in this Court and submit to its jurisdiction, there must necessarily be some disputes that are to be litigated." (Mem. in Opp'n at 16.) While this may be true, there is nothing in the agreements to suggest that the resolution of disputes involving the non-compete and confidentiality provisions is affected by this provision. Further, section 13.6 is not rendered meaningless if the plain language of the agreements is given effect — for example, disputes over arbitrability or the enforcement of an arbitration award could be subject to the provision.
This same reasoning applies to HP's argument regarding section 13.5.4. While the provision in its entirety assesses penalties against a party who files suit in violation of the arbitration clause, HP focuses on a single phrase in the section: "claims subject to arbitration." The inference HP asks the Court to make regarding the effect of this phrase — that its wording suggests that there must be some claims that are not subject to arbitration — is too weak to overcome the compelling evidence and contractual language to the contrary. Further, even if HP's interpretation of that phrase is correct, the ultimate conclusion that HP advocates does not follow; section 13.5.4 does not reference any exceptions to the broad arbitration clause. Indeed, there is no way to read the section as specifically excepting the confidentiality and non-compete provisions from arbitration. Finally, the inclusion of a provision penalizing a party seeking judicial relief in violation of the all-encompassing arbitration clause only reinforces the clear intent of the parties to arbitrate all disputes.
The agreements provide that "in the event of ambiguities no inference will be drawn against any party solely on the basis of authorship of this Agreement." (Section 13.9.) Having determined that the agreements are not ambiguous, this provision is largely irrelevant. Furthermore, that the parties contracted for such a provision does not negate HP's awareness of and active role in crafting the language and structure of the agreements; in this regard, HP's "wounds" are self-inflicted. HP cannot now ask the Court to jump through hoops to come to a conclusion that is contrary to the plain language of the agreements. "[T]he FAA aspires to ensure that commercial arbitration agreements, like other contracts, are enforced according to their terms." UHC Mgmt. Co. v. Computer Sciences Corp., 148 F.3d 992, 995 (8th Cir. 1998) (internal quotation omitted); see also LaSociete Generale Immobiliere v. Minneapolis Cmty. Dev. Agency, 44 F.3d 629, 637 (8th Cir. 1994) (refusing to "rewrite the contract in order to save a contracting party from its own poor decisions" (citation omitted)).
It is clear that arbitration is the proper forum for HP's claims. Accordingly, the Court construes the agreements to allow the arbitrator to grant injunctive relief for violations of the confidentiality and non-compete provisions. The agreements provide that the arbitration is to be conducted according to "the then current rules of the American Arbitration Association (`AAA')." (Section 13.5.2.) This will not create an obstacle to the imposition of the Court's ruling, as under AAA Rule number 43, arbitrators may award "any remedy or relief that the arbitrator deems just and equitable." See Lee v. Chica, 983 F.2d 883, 887 (8th Cir. 1993) (affirming arbitrator's award of punitive damages and recognizing "that AAA arbitrators may grant any remedy or relief"). Because the Court determines that the agreements unambiguously provide for the instant dispute to be arbitrated, HES's Motion is granted, and this action will be stayed pending completion of arbitration proceedings.
At oral argument, counsel for HP raised the concern that HES might contest the arbitrator's authority to issue injunctive relief. In view of this Court's ruling and the position taken by HES at oral argument and in its briefs, the Court assumes that the capacity of the arbitrator to award injunctive relief will not be challenged by HES. The thrust of HES's position at oral argument was that the arbitrator may award any relief that the parties are contractually able to seek. (See Mem. in Supp. at 11-12 ("If the arbitrator finds noncompliance with the confidentiality or noncompete provisions, he or she may enforce those terms through injunctive or monetary relief.").) See also John Morrell Co. v. Local Union 304A of the United Food and Commercial Workers, 913 F.2d 544, 562-63 (8th Cir. 1990) (holding that the arbitrator did not have the authority to disregard a prior jury verdict as to the meaning of a contractual provision in the same dispute; "the arbitrator was barred from reconsidering the issue decided in the prior judicial proceeding"). In short, HP can seek injunctive relief in the arbitration proceedings and, while HES cannot challenge the arbitrators authority to award injunctive relief, HES can challenge the appropriateness of such relief under the facts and circumstances of the case.
CONCLUSION
Based on the foregoing, and all the files, records and proceedings herein IT IS ORDERED that:
(1) Health Enhancement Systems, Inc.'s Motion to Dismiss or Stay Litigation and Compel Arbitration (Doc. No. 4) is GRANTED; this action is STAYED pending completion of arbitration proceedings; and
(2) HealthPartners's Motion for Preliminary Injunction (Doc. No. 12) is DENIED WITHOUT PREJUDICE.