Opinion
CIVIL ACTION, No. 01-3178, SECTION: 1/2
November 8, 2002
MINUTE ENTRY
Before this Court is the motion of defendants, Delasa/Prescott Follett Associates, a Delaware limited liability company, Alma Finance Group, Kris N. Mahabir, Arete, LLC, and Mary Wright, to compel arbitration pursuant to an operating agreement of Delasa/Prescott Follett Associates. Plaintiffs, Prescott-Follett Associates, Inc. and Latin American Energy Development, Inc. d/b/a Delasa oppose the motion. For the following reasons, the motion is GRANTED.
FACTUAL BACKGROUND
In 1999, Prescott-Follett Associates, Inc., Latin American Energy Development, Inc. d/b/a Delasa, Alma Finance Group, and Arete, LLC, (the "Parties") formed a Delaware limited liability company, Delasa/Prescott-Follett Associates LLC (the "Delaware Company"), for the purpose of securing a twenty five year lease of the port facilities at Puerto Cabezas, Nicaragua. Shortly after forming the Delaware Company, the Parties signed an operating agreement dated March 29, 1999, (the "March Operating Agreement") to formalize their agreement to work together on the project. The March Operating Agreement contained a clause requiring that, "[i]n the Event of any dispute under this Agreement, such dispute shall be settled by arbitration in New York, New York, in accordance with the rules then promulgated by the American Arbitration Association . . ."
Plaintiffs, Prescott-Follett Associates, Inc. and Latin American Energy Development, Inc. d/b/a Delasa, are both Louisiana corporations. Alma Finance Group and Arete LLC are foreign companies. R. Doc. No. 1, ¶ 1.
R. Doc. No. 18, Memorandum, p. 2. The purpose of the project was "the commercial, long-term development and privatization of Puerto Cabezas, as a major port in Nicaragua, on the Atlantic coast, serving the North Atlantic Autonomous Region of Nicaragua." R. Doc. No. 1, ¶ 8.
Id. at pp. 2-3.
R. Doc. No. 5, Exhibit D-1, Article XXII, § 22.1.
In November 1999, the Parties allegedly negotiated a new operating agreement (the "November Operating Agreement"). The terms of the November Operating Agreement were substantially different from the March Operating Agreement, but contained the same dispute resolution clause as the original March Operating Agreement, in that it required the members to resolve "any dispute under this Agreement . . . by arbitration in New York."
R. Doc. No. 18, Exhibit 1, Operating Agreement, Article 10, § 10.1.
The Delaware Company was ultimately successful in securing the lease and it assumed control of the port at Puerto Cabezas in July, 2001. As a prerequisite for doing business in Nicaragua, Nicaraguan law required the Delaware Company to be registered in Nicaragua and to appoint an agent who resided in Nicaragua. The Delaware Company appointed Arnaldo Talavera to act as its agent and it granted him power of attorney to handle, inter alia, certain banking transactions for the Delaware Company.
R. Doc. No. 18, Memorandum, p. 3.
Id.
Id. at p. 4.
In August, 2001, the majority shareholder of the Delaware Company requested that Talavera provide an accounting of funds he handled on behalf of the Delaware Company. Talavera failed to respond to these requests. Shortly thereafter, it was discovered that John Wheelock had allegedly opened a bank account in Nicaragua under the same name as the Delaware Company and that he wrongfully deposited checks belonging to the Delaware Company.
Id.
John Wheelock is the principal of Latin American Energy Development d/b/a Delasa, and a member of the Delaware Company. R. Doc. No. 1, ¶ 8-9.
R. Doc. No. 18, p. 4. Plaintiffs dispute that Wheelock wrongfully deposited money into this account.
Consequently, the Delaware Company filed charges in Nicaragua against Talavera on September 18, 2002, seeking an accounting of the Delaware Company's funds. On December 12, 2001, a judge of the Criminal Court of Puerto Cabezas convicted Talavera of the crime of theft with abuse of trust in violation of the Nicaraguan Criminal Code. In the judgment of conviction, defendants allege that the judge also set forth a criminal complaint against Wheelock for being presumed to be Talavera' s co-conspirator. Plaintiffs agree that Wheelock was subsequently convicted of this alleged crime in absentia.
R. Doc. No. 18, p. 5; R. Doc. No. 5, Exhibits M-1, M-2, and N.
R. Doc. No. 18, p. 5; R. Doc. No. 32, p. 2.
According to the record, the judge ordered that an "instructive of law" be opened against Wheelock. R. Doc. No. 32, p. 5.
R. Doc. No. 18, p. 5 and Exhibit 2.
R. Doc. No. 23, p. 12. Plaintiffs further argue that the conviction was subsequently overturned by the judge who held that the charges against Wheelock were civil in nature. Id. However, plaintiffs arguments are unsupported by any evidence in the record.
On October 19, 2001, plaintiffs filed the present lawsuit seeking to have the November Operating Agreement declared null and void and to reinstate the March Operating Agreement. Plaintiffs also seek damages arising from the defendants' alleged breach of the March Operating Agreement.
LAW AND ANALYSIS
The Federal Arbitration Act ("FAA") applies to written arbitration provisions contained in contracts involving commerce and "its reach is coextensive with the Congressional power to regulate under the Commerce Clause." Trapp Chevrolet-Oldsmobile-Cadillac, Inc. v. General Motors Corporation, 2002 WL 11633611, *2 (E.D.La. 5/31/02). Specifically, Section 2 of the FAA provides:
A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.9 U.S.C. § 2. The term "commerce" refers to "commerce among the several States or with foreign nations" and it is to be broadly construed. Atlantic Aviation, Inc. v. EBM Group, Inc., 11 F.3d 1276, 1280 (5th Cir. 1994). Furthermore, it is well established that although the FAA is substantive law, the Act applies "in diversity cases because Congress ha[s] so intended." Allied Bruce Terminex Companies, Inc. v. Dobson, 513 U.S. 265, 271, 115 S.Ct. 834, 838, 130 L.Ed.2d 753 (1995).
In fact, the U.S. Supreme Court has made it clear that the FAA preempts state law. Id., 513 U.S. at 272, 115 S.Ct. at 838.
In this case, none of the parties dispute that the operating agreements between the parties are contracts involving commerce within the meaning of 9 U.S.C. § 2. Moreover, it is also undisputed that both the March and November operating agreements contain written arbitration provisions. Accordingly, the FAA governs this Court's determination regarding the arbitrability of this dispute.
R. Doc. No. 18, Memorandum, p. 6; R. Doc. No. 23, pp. 1, 6-7. Although the parties dispute whether the March or November operating agreement should apply, it is clear that both agreements "involve commerce" as the parties to the agreements are residents of different states and the agreements relate to the operations of a Delaware Company whose business was the development of a major foreign port in Nicaragua. As such, they fall under the coverage of the FAA. See Rushe v. NMTC, Inc., 2002 WL 575706, *5 (E.D.La. 4/16/02) (holding that where distributorship agreement was between residents of different states and involved the distribution of products from outside the State of Louisiana and "where the claims and allegations of the suit involve[d] meetings and communications which took place between Ohio and Louisiana," the agreement was one which involved commerce within the meaning of the FAA).
R. Doc. No. 18, Memorandum, p. 6; R. Doc. No. 1, p. 1.
The FAA expresses a strong presumption favoring arbitration of disputes and "all doubts concerning the arbitrability of claims should be resolved in favor of arbitration." Primerica Life Insurance Co. v. Brown, 304 F.3d 469, 471 (5th Cir. 2002). "By its terms, the Act leaves no place for the exercise of discretion by a district court, but instead mandates that district courts shall direct the parties to proceed to arbitration on issues as to which an arbitration agreement has been signed." Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 614, 625-26, 105 S.Ct. 1238, 1241, 84 L.Ed.2d 158 (1985) (emphasis added). In determining whether the parties should be compelled to arbitrate a dispute, the Court performs a two-step inquiry. Primerica Life Insurance Co. v. Brown, 304 F.3d 469, 471 (5th Cir. 2002). "First, the court must determine whether the parties agreed to arbitrate the dispute. Once the court finds that the parties agreed to arbitrate, it must consider whether any federal statute or policy renders the claims nonarbitrable." Id. In conducting this two step analysis, "courts must not consider the merits of the underlying action." Downer v. Siegel, 2002 WL 31106920, *2 (E.D.La. 9/19/02).
This determination involves two considerations: "(1) whether there is a valid agreement to arbitrate between the parties; and (2) whether the dispute in question falls within the scope of that arbitration agreement." Webb v. Investacorp, Inc., 89 F.3d 252, 258 (5th Cir. 1996).
Here, plaintiffs do not deny that both the March and November operating agreements at issue contain an identical arbitration clause requiring "any dispute" under the agreement to be arbitrated in New York. Likewise, plaintiffs do not contest that their claims for breach of the original operating agreement (i.e. the March Operating Agreement) fall within the broad scope of the arbitration clause. Rather, plaintiffs sole argument is that they should not be compelled to arbitrate at all because both the March and November agreements are invalid as a whole as a result of fraudulent misrepresentations by the defendants. Specifically, plaintiffs contend "that the entire consent to form the contract initially was obtained by the fraud, manipulation and misrepresentation" of facts by the defendants "upon which the plaintiffs relied, and without which the entire contract, including the arbitration clause, would never have been entered into or agreed to."
R. Doc. No. 5, Exhibit D-1, Operating Agreement, Article XXII, § 22.1; R. Doc. No. 18, Exhibit 1, Article 10, § 10.1.
The Fifth Circuit has differentiated between arbitration clauses which are "broad" and those which are "narrow." Rushe, 2002 WL 575706 at *5 "Where an arbitration clause is `broad,' the action should be stayed and the arbitrator permitted to decide if the dispute falls within the clause. Whereas in cases where the clause is `narrow,' the case is not referred to arbitration or stayed, unless the Court determines that the dispute falls within the clause." Id. (citing In Re Complaint of Horn beck Offshore Corp., 981 F.2d 752, 755 (5th Cir. 1993)).
Clauses which contain the term "any dispute" have been held to be "broad." Id.; see also Pennzoil, 139 F.3d at 1067; Mesa Operating Limited Partnership v. Louisiana Intrastate Gas Corporation, 797 F.2d 238, 244 (5th Cir. 1986) (finding that arbitration clause requiring arbitration of "any controversy between the parties . . . arising under this Contract" was broad); Rojas v. TK Communications, Inc., 87 F.3d 745 (5th Cir. 1996)("any other dispute" was sufficiently broad); In Re Complaint of Hornbeck, 981 F.2d at 755 (holding that arbitration clause in towage agreement providing for reference to arbitration of "any dispute" arising between the parties was broad); Sedco v. Petroleos Mexicanos Mexican Nat'l Oil, 767 F.2d 1140, 1144 (5th Cir. 1985) (finding that clause providing for arbitration of "any dispute or difference between the parties" was sufficiently broad); Neal v. Hardee's Food Systems, Inc., 918 F.2d 34, 38 (5th Cir. 1990) (clause governing "any and all disputes" between the parties was broad). In this case, both the March and November Operating Agreements contain identical arbitration provisions requiring arbitration of "any dispute under this Agreement." The Court finds that regardless of which operating agreement is applied, the clauses are of the "broad" type. Therefore, in accordance with the jurisprudence, the matter should be stayed and submitted to arbitration.
In fact, plaintiffs do not even address this issue in their opposition memorandum.
R. Doc. No. 23, p. 7-10. The Court notes that plaintiffs' original and first supplemental and amending complaints assert only that the November Operating Agreement should be voided. R. Doc. No. 1, R. Doc. No. 5. On September 19, 2002, plaintiffs requested leave to file a second supplemental and amending complaint wherein they asserted claims that the March operating agreement should also be rescinded on the same basis as the November agreement. R. Doc. No. 27. Although the Court denied plaintiffs request for leave, the Court, in the interest of justice, nevertheless considers plaintiffs' arguments with respect to the March Operating Agreement as these are raised in opposition to the present motion to compel arbitration.
R. Doc. No. 23, p. 14.
Id. at p. 7.
The Court notes that plaintiffs' arguments, legally actionable as they may be, do not render their claims nonarbitrable. At no time have plaintiffs asserted that there was fraud in the inducement or misrepresentations relative to the arbitration clause alone. In Prima Paint Corporation v. Flood Conklin Mfg. Co., 388 U.S. 395, 403-04, 87 S.Ct. 1801, 1806, 18L.Ed.2d 1270 (1967), the United States Supreme Court specifically held that pursuant to the FAA, "`if the claim is fraud in the inducement of the arbitration clause itself — an issue which goes to the `making' of the agreement to arbitrate — the federal court may proceed to adjudicate it,' but the federal court cannot consider claims of fraud in the inducement of the contract itself." Downer v. Siegel, 2002 WL 31106920, *2 (E.D.La. 9/19/02) (citing Prima Paint, 388 U.S. at 403-04, 87 S.Ct. at 1806)). Thus, unless a defense relates solely to the arbitration clause, it must be submitted to the arbitrator for consideration as part of the underlying dispute between the parties. Primerica Life Insurance Co. v. Brown, 304 F.3d 469, 471-72 (5th Cir. 2002).
Plaintiffs' contention that the arbitration clause should be voided because the entire contract is null and void is not a challenge to the arbitration clause, itself, but a challenge to the entire contract, including the arbitration clause.
See Primerica Life Insurance Company v. Brown, 304 F.3d 469, 471-72 (5th Cir. 2002) (holding that where defendant's capacity defense was a defense to the entire agreement and not a specific challenge to the arbitration clause, the defense was part of the underlying dispute between the parties which must be submitted to the arbitrator); Snap-On Tools Corp. v. Mason, 18 F.3d 1261, 1267-68 (5th Cir. 1994) (submitting allegations of fraud in the inducement to arbitration because allegations did not concern arbitration clause specifically, but rather was a challenge to the contract in its entirety); Lawrence v. Comprehensive Business Services Company, 833 F.2d 1159, 1162 (5th Cir 1987) (submitting defense of illegality of the contract to arbitration because it was not a challenge to the arbitration clause, itself, but rather to the contract as a whole); Mesa Operating Limited Partnership v. Louisiana Intrastate Gas Corp., 797 F.2d 238, 244 (5th Cir. 1986) (submitting to arbitration a defense that contract was void from its inception because defendant did not argue "that the agreement to arbitrate [was] invalid separately from the entire contract).
Plaintiffs in this case seek a declaratory judgment that the November operating agreement is "null, void, ultra vires, in violation of the Original Consent and Terms of the Operating Agreement, and of no effect whatsoever" as a result of alleged fraudulent misrepresentations by the defendants. In their opposition to the motion to compel arbitration, the plaintiffs further allege that "even th[e] March 29 Operating Agreement was manipulated by defendants" and should be voided. As plaintiffs' fraud defense relates to the operating agreements generally, the jurisprudence and the FAA mandate that plaintiffs' claims, including the fraud in the inducement defense, be resolved by the arbitrator. See Prima Paint, 388 U.S. 395, 404, 87 S.Ct. 1801, 1806; Rushe, 2002 WL 575706 at *7
R.Doc. No. 1, ¶ 21,
R. Doc. No. 23, p. 2.
Plaintiffs cite George Engine Co., Inc. v. Southern Shipbuilding Corp., 350 So.2d 881 (La. 1977) in support of their contention that the district court, not the arbitrator, has jurisdiction to decide the issue of fraud in the inducement of a contract containing an arbitration clause. Id. at 884. In George Engine, the Louisiana Supreme Court declined to follow Prima Paint. However, in Rushe and Downer, the federal district courts, faced with the same argument presented by the plaintiffs herein, rejected the holding in George Engine, explaining that in George Engine the Louisiana Supreme Court "was interpreting the Louisiana Arbitration Act §§ 4201, 4203, not the FAA." Rushe, 2002 WL 575706 at *6; Downer, 2002 WL 31106920 at *3, n. 3.
Plaintiffs next argue that arbitration should be denied in this case because defendants sought the intervention of the judicial system in Nicaragua rather than resorting to arbitration, thereby waiving their right to compel arbitration. Specifically, in their supplemental and amending complaint plaintiffs aver:
R. Doc. No. 23, p. 11.
Defendants have waived any right to arbitration of this claim both by their filing or causing the filing of civil and criminal litigation against John Wheelock and Amoldo Talavera in matters arising out of the Lease and Operating Agreement; and by their conscious and deliberate efforts to violate, illegally modify and undermine the operation of DELASA/Delaware and the proper operation of Puerto Cabezas under the Lease.
R. Doc. No. 5, ¶ 50.
"Waiver of arbitration is not a favored finding and there is a presumption against it." Lawrence v. Comprehensive Bus. Servs. Co., 833 F.2d 1159, 1164 (5th Cir. 1987); Subway Equipment Leasing v. Forte, 169 F.3d 324, 326 (5th Cir. 1999)("There is a strong presumption against waiver of arbitration"); Walker v. J.C. Bradford Co., 938 F.2d 575 577 (5th Cir. 1991)("In general, we hesitate to find that a party has waived its contractual right to arbitration."); Moses H. Cone Mem'l Hosp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 941, 74 Led.2d 765 (1983)("[A]ny doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract itself or an allegation of waiver, delay, or a like defense to arbitrability"). Accordingly, a party asserting waiver of arbitration bears a heavy burden of proof. Subway, 169 F.3d at 326 (5th Cir. 1999). "Waiver will be found when the party seeking arbitration substantially invokes the judicial process to the detriment or prejudice of the other party." Miller v. Brewing Co. v. Forth Worth Distrib. Co., 781 F.2d 494 497 (5th Cir. 1986). Waiver requires a showing of "both a substantial invocation of the judicial process and either detriment or prejudice to the other party." Consorcio Rive v. Briggs of Cancun, Inc., 134 F. Supp.2d 789, 795 (E.D.La. 2001). Finally, it is well established that "a party only invokes the judicial process to the extent it litigates a specific claim it subsequently wants to arbitrate." Subway, 169 F.3d at 328; Doctor's Associates v. Distalo, 107 F.3d 126, 134 (2nd Cir. 1997)("[O]nly prior litigation of the same legal and factual issues as those the party now wants to arbitrate results in a waiver of the right to arbitrate").
"Substantial" invocation of the judicial process requires "active participation in a lawsuit or some other type of act inconsistent with the desire to arbitrate." Consorcio Rive v. Briggs of Cancun, Inc., 134 F. Supp.2d 789, 795 (E.D. La. 2001). With respect to the requirement of "prejudice," the Fifth Circuit has held that, "[w]hen one party reveals a disinclination to resort to arbitration on any phase of a lawsuit involving all parties, those parties are prejudiced by being forced to bear the expenses of a trial . . . Arbitration is designed to avoid this very expense. Substantially invoking the litigation machinery qualifies as the kind of prejudice . . . that is the essence of waiver." Id. (quoting E.C. Ernst, Inc. v. Manhattan Construction Co. of Texas, 559 F.2d 268, 269 (5th Cir. 1977)).
Defendants' filing of alleged civil and/or criminal matters in Nicaragua against Talavera and Wheelock did not amount to a substantial invocation of the judicial process and it was not inconsistent with the defendants' desire to arbitrate the present claims arising out of the parties' operating agreement. With respect to the alleged civil and criminal proceedings against Talavera, plaintiffs have presented no evidence that Talavera was a member of the Delaware Company or a party to the March and/or November agreements. Accordingly, the Court fails to see how litigation against a non-party to an agreement can result in a waiver of arbitration rights pursuant to that agreement. Further, defendants' actions in filing proceedings against Talavera for theft of funds could not have resulted in any detriment or prejudice to plaintiffs with respect to this action. Plaintiffs were not even parties to the litigation against Talavera and did not have to bear the expense of burdensome litigation. Plaintiffs' claims against defendants for breach of the operating agreements are unrelated to any claims against Talavera, individually, for alleged theft of funds. Consequently, the Court finds that any proceeding by defendants against Talavera, whether civil or criminal, did not result in a waiver of arbitration rights in this matter. See Subway, 169 F.2d at 328 (holding that franchisor did not waive right to arbitration under franchise agreement by filing previous lawsuit against franchisees where the earlier action involved claims that were different from the one the franchisor now sought to arbitrate); Amalgamated Local No. 55, United Automobile, Aerospace Agricultural Implement Workers of America v. Metal and Alloy Division of Silver Creek Precision Corporation, 396 F. Supp. 667, 670 (N.D.N.Y. 1975) (finding that union did not waive arbitration under collective bargaining agreement by filing criminal charge against one of employer's officers where criminal action was based upon different issues than those before the court and was brought against an individual and not the defendant corporation).
To the contrary, the Operating Agreements themselves show that the only parties to the operating agreements and the only entities/individuals having an ownership interest in the Delaware Company are Alma Finance (through its principal, Kris N. Mahabir), Arete LLC (through its principal, Mary A. Wright), Delasa, Inc. (through its principal John F. Wheelock), Prescott Follett and Associates, Inc. (through its principal, Prescott Follert), Michael Beaury, and Todd Esse. See R. Doc. No. 18, Exhibit 1, Schedule A.
Clearly, as a non-party to the agreement, there was no duty owed to Talavera to resolve any disputes arising out of the agreement through arbitration.
Similarly, the Court finds that the alleged filing of criminal charges against Wheelock did not amount to a waiver of defendants' right to arbitrate. Federal courts have held that the FAA, while promoting arbitration, does not contemplate the arbitration of criminal activity. See Myers v. Rosenberg, 1986 WL 3329, *2 (N.D.Ill. 3/7/86). Therefore, defendants' alleged filing of criminal charges cannot be held to be inconsistent with their desire to arbitrate. Nor can it be held to have resulted in any detriment or prejudice to the plaintiffs, particularly in light of the fact that Wheelock "was convicted in absentia, being out of the Country of Nicaragua at the time, never having been formally faced with his accusers, never having been permitted to go to trial." Accordingly, plaintiffs fail to meet their burden of proving a waiver of the arbitration.
The Court notes that although plaintiffs argue that civil charges were also filed against Wheelock, the evidence submitted by plaintiffs to the Court do not reveal the filing of any such civil matters. See R. Doc. No. 5, Exhibits M-1, M-2 and N. To the contrary, a review of the documents submitted by plaintiffs show that the only matter against Wheelock is/was pending before the Criminal District Court of Puerto Cabezas. R. Doc. No. 5, Exhibit M-2. Accordingly, any arguments by plaintiff that a civil lawsuit was filed against Wheelock or, alternatively, that the criminal charges "were purely civil in nature," R. Doc. No. 23, p. 12, are merely speculative and unsupported by any evidence in the record.
R. Doc. No. 23, p. 12. Because Wheelock was convicted in absentia, there was no "active participation in a lawsuit" sufficient to amount to substantial invocation of the judicial process. Consorcio Rive, 134 F. Supp.2d at 795.
In sum, the Court finds that there is no impediment to the arbitration of plaintiffs' claims. All of the parties, including the plaintiffs, admittedly signed the operating agreements. to arbitrate "any dispute under th[e] Agreement[s]." Further, plaintiffs point to no federal statute or policy that may render their claims nonarbitrable. Consequently, considering the broad nature of the arbitration clause and the U.S. Supreme Court's pronouncement in Prima Paint, this Court holds that plaintiffs' claims, including their claim for fraud in the inducement of the operating agreement, must be submitted to arbitration.
R.Doc. No. 23, p. 2.
R.Doc. No. 23, p. 1.
In Re Complaint of Hornbeck Offshore Corp., 981 F.2d at 755 ("[A]rbitration clauses containing the "any dispute' language . . . are of the broad type.").
Id.; Sedco, Inc. v. Petroleos Mexicanos Mexican National Oil Co., 767 F.2d 1140, 1148 (5th Cir. 1985)("`[a]bsent allegations of fraud in the inducement of the arbitration clause itself, arbitration must proceed when an arbitration clause on its face appears broad enough to encompass the party's claims.'") (quoting Life of America Insurance Co. v. Aetna Life Insurance Co., 744 F.2d 409, 413 (5th Cir. 1984)).
Accordingly,
IT IS ORDERED that the motion to compel arbitration of defendants, Delasa/Prescott Follett Associates, a Delaware Limited Liability Company, Alma Finance Group, Kris N. Mahabir, Arete, LLC, and Mary Wright, is GRANTED. IT IS FURTHER ORDERED that the claims of plaintiffs, Prescott-Follett Associates, Inc. and Latin American Energy Development, Inc. d/b/a Delasa, shall be submitted to arbitration, in accordance with the parties' arbitration agreement.
IT IS FURTHER ORDERED that this case BE AND IS HEREBY STAYED PENDING ARBITRATION. IT IS FURTHER ORDERED that the Clerk of Court mark this action closed for statistical purposes and place this matter in a Civil Suspense File;
IT IS FURTHER ORDERED that the Court shall retain jurisdiction and the matter shall be restored to the trial docket if circumstances change this action, upon motion of a party, within thirty (30) days of any such change of circumstances, so that it may proceed to final disposition.
This order shall not prejudice the rights of the parties to this litigation.