Summary
holding dismissal warranted in the case "because the entire matter is encompassed by the arbitration clause"
Summary of this case from Aviles v. Russell Stover Candies, Inc.Opinion
Civil Action No. 01-0267
October 22, 2001
CIVIL ACTION
Before this Court are Plaintiffs' Motion for Summary Judgment (rec. doc. 8) and Defendant's Motion to Dismiss and/or Stay Pending Arbitration (rec. doc. 13). This Court has considered the facts, arguments presented by parties, and relevant law and is bound to dismiss this matter and submit it to arbitration. Therefore, this Court GRANTS Defendant's Motion to Compel Arbitration and DENIES Plaintiffs' Motion for Summary Judgment.
Background
The pertinent facts surrounding this matter are not complex. Defendants formed Metal Distributors, Inc (MDI) as a holding company and borrowed $300,000 from Bank One on April 20, 2000 to obtain working capital to purchase the assets of several metal distribution businesses including: Industrial Metals of the South, Inc., (IMSNO), Industrial Metals of the South, Inc., Florida (IMSFLA), and Gulf Global., Inc., New Orleans, Louisiana (Gulf Global). This loan was evidenced by a promissory note signed by defendants. Parties also entered a Covenant Agreement in which defendants agreed to grant Bank One mortgages on property having fair market value of not greater that 85% of the principal amount of the promissory note. Plaintiffs' Motion for Summary Judgment, p. 2-3.
On November 21, 2000, MDI and Gulf Global filed chapter 11 bankruptcy in the United States Bankruptcy Court for the Easter District of Louisiana. On February 1, 2001, Bank One filed proofs of claim in the bankruptcy litigation but has not received any distributions.
On January 11, 2001, Bank One made written demand on defendants requesting all deficiencies including the failure to make interest payments and failure to grant mortgages on real property under the agreements be cured. Defendants did not cure either deficiency. On January 30, 2001, defendants were put into default with the filing of plaintiff's complaint. Plaintiff alleged that defendant owes: (1) $300,000 as the principal amount owed under the Promissory Note, (2) $10,266.67 as the accrued interest from April 20, 2000 until January 30, 2001 with $175 per diem default interest beginning January 31, 2001, (3) default interest at a rate of twenty-one percent annum from January 31, 2001 until the total amount under the Promissory Note is paid in full, and (4) reasonable attorney fees. Plaintiff further contended that, unless defendant asserted a valid defense, it was entitled to recover the amounts listed because it has established defendants' signatures on the promissory note and their subsequent default.
In its answer, filed May 14, 2001, defendant asserted five defenses including: (1) payment, (2) discharge in bankruptcy, (3) estoppel, (4) set-off, and (5) mitigation of damages. On July 30, 2001 plaintiff filed the instant Motion for Summary Judgment, reasserted the issues addressed in its initial complaint, and argued that there were no issues of material fact to be resolved by this Court. Then, on August 28, 2001, defendant moved this Court to dismiss plaintiffs' claims and argued that: (1) he had not been properly served with process in violation of 12 (b)(5), (2) plaintiff had failed to state a claim upon which relief could be granted in violation of 12(b)(6), (3) similar claims were intertwined with claims already asserted in collateral bankruptcy proceeding, and (4) all claims were subject to arbitration. Defendant's Motion to Dismiss, p. 1-2.
In support of their argument for arbitration, defendant noted that the Federal Arbitration Act, 9 U.S.C. § 1 favors a liberal stance on arbitration. Defendant's Memorandum in Support of Motion to Dismiss, p. 4 citing Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1 (1983). Furthermore, defendant explained that when all issues raised by the parties are arbitrable, the district court may dismiss the case-rather than issuing a stay. Defendant's Memorandum in Support of Motion to Dismiss, p. 5 citing Fedmet Corporation v. M/V Buyalak, 194 F.3d 674 (5th Cir. 1999). Finally, defendant highlighted the expansive scope of the arbitration clause contained in the contract between the parties, in part:
Lender and Borrower agree that upon the written demand of either party, whether made before or after the institution of any legal proceeding, but prior to the rendering of any judgment in that proceeding , all disputes, claims, and controversies between them, whether individual, joint, or class in nature, arising from this Note, any Related Document or otherwise, including without limitation contract disputes and tort claims, shall be resolved by binding arbitration pursuant to the Commercial Rules of the American Arbitration Association (AAA).
Defendant Memorandum in Support of Motion to Dismiss, p. 7-8 (emphasis added)
Responding to defendant's arguments, plaintiff correctly argued that defendant's 12(b)(5) and (6) motions (deficiency of service of process and failure to state a claim) were waived when defendant answered plaintiffs' petition. Plaintiff also asserted that defendants waived the arbitration clause of the contract between the parties because they "had substantially invoked the judicial process of this Court and [prejudiced] Bank One through filing Answers and waiting to assert arbitration until the eve of this Court's hearing on Bank One's pending Motion for Summary Judgment." Plaintiffs' Opposition to Defendant's Motion to Dismiss, p. 2. Furthermore, Bank One argued that prior to the filing of the Motion for Summary Judgment, it had spent "considerable time and resources in an effort to negotiate an agreement with" defendants to avoid wasting judicial resources.
Plaintiff pointed to the Fifth Circuit's approach in E.C. Ernst, Inc. v. Manhattan Construction Co. of Texas, 559 F.2d 268 (5th Cir. 1977) when it stated:
[w]hen one party reveals a disinclination to resort to arbitration on any phase of suit 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"
Plaintiff noted that arbitration is waived when a "party seeking to invoke arbitration actively participates in litigation or delays in moving to compel arbitration to the prejudice of other parties" but conceded that there was no "settled rule as to whether a specific act or omission" constituted a waiver of an agreement to arbitrate. Rather, the question of waiver depended on the circumstances of each case. Plaintiffs' Opposition to Defendant's Motion to Dismiss, p. 6-7 citing Rogers v. Brown, 986 F. Supp. 354 (M.D. La. 1997) and Valero Refining, Inc. v. M/T Lauberhorn. Additionally, plaintiff explained that courts have used different factors to determine whether a party had "substantially invoked the judicial process" and was therefore prohibited from taking advantage of an arbitration provision, but pointed out that whether a party requested arbitration in the answer was a major factor. Plaintiff Opposition to Motion to Dismiss, p. 7 citing Steel Warehouse Co. v. Abalone Shipping Ltd. of Nicosai, 141 F.3d 234 (5th Cir 1998), Williams v. Cigna Financial Advisors, Inc. 56 F.3d 656 (5th Cir. 1995), and Com-Tech Associates v. Computer Associates Int'l Inc., 938 F.2d 1574 (2nd Cir. 1991).
ANALYSIS
Initially, this Court notes that the contract between the parties evidences a debt that is due and owing by defendants as makers (not guarantors) of the promissory note. Furthermore, this Court agrees with plaintiffs' assertion that defendant's 12(b)(6) motions were waived with the filing of their answers in the pending matter. There is also no question that the contract between these parties contains an arbitration clause. Thus, the issue before this Court is whether defendants waived their right to invoke arbitration.
While the FAA has emphasized strict enforcement of arbitration clauses and has required any ambiguity to be resolved in favor of arbitration, the right to arbitration can be waived. See Moses H. Cone Memorial Hosp. v. Mercury Contr. Corp., 460 U.S. 1 (1983), Neal v. Hardee's Food Sys., Inc., 918 F.2d 34 (5th Cir. 1990) and Williams v. CIGNA Fin. Advisors, Inc., 56 F.3d 656 (5th Cir. 1995) ( quoting Miller Brewing Co. v. Fort Worth Distrib. Co., 781 F.2d 494 (5th Cir. 1985). However, in addressing this issue, the courts have explained that "waiver of arbitration is not a favored finding and there is a presumption against it." Miller Brewing Co. v. Fort Worth Distrib. Co., Inc., 781 F.2d 494 (5th Cir. 1986).
The presumption against a "waiver of arbitration" is not insurmountable and the courts have developed a test to be used to determine whether a party has waived arbitration. That test focuses on whether there has been "substantial invocation of the judicial process to the detriment or prejudice of the other party." See for example Miller Brewing Co. v. Fort Worth Distrib. Co., Inc., 781 F.2d 494 (5th Cir. 1986) and Subway Leasing Equip. Leasing Corp. v. Forte, 169 F.3d 324 (5th Cir. 1999). One court described the application of that test as requiring "[a]ctive participation in a lawsuit or some other type of act inconsistent with the desire to arbitrate. 134 F. Supp. 789 (E.D. La. 2001). For example, one court held there had been a waiver of arbitration when the party invoking the right had "initiated extensive discovery, answered twice, filed motions to dismiss and for summary judgment, filed and obtained two extensions of pre-trial deadlines" all to delay the trial process seventeen months and caused the other attorney to incur attorney's fees." Price v. Drexel Burnham Lambert, Inc., 791 F.2d 1156 (5th Cir. 1986). Similarly, a party was found to have waived the right to arbitration when it actively participated in a lawsuit for three years by filing numerous motions, including motions for summary judgment. Mcauslin v. Grinnell Corp., 2001 WL 8584 (E.D. La. 2001).
Many courts, however, have found that the right to arbitration was not waived when the judicial process had not been "sufficiently invoked." For example, Tenneco Resins, Inc. v. Davy International, 770 F.2d 416 (5th Cir. 1985), the Fifth Circuit held that the right to arbitrate was not waived when defendant sought to have the complaint dismissed in its answer because the arbitration clause encompassed the issue — even though the defendant waited eight months to move for a stay pending arbitration. The Court explained that "when only a minimal amount of discovery has been conducted, which may also be useful for the purpose of arbitration, the court should not ordinarily infer waiver based on prejudice to the other party." Similarly, in Flatland Real Estate Corp. v. Dugas Construction Corp., 784 So.2d 867 (La.App. 3d Cir. 2001) the Court held that a party did not waive the right to demand arbitration when it filed suit against the defendant, no substantive discovery had taken place, and only two months had lapsed between the filing of suit and the request for arbitration.
In the instant case, there is no question that the contract between the parties contains an expansive arbitration clause that specifically allows the invocation of arbitration by either party "before or after the institution of any legal proceeding, but prior to the rendering of any judgment." Therefore, the issue presented to the Court in by these motions is whether defendants waived their right to arbitration by "substantially invoking the judicial process" before they invoked the right. Applying the strong jurisprudential presumption in favor of arbitration and the level of proof that must be established to prove a waiver of that right, this Court is bound to enforce the arbitration clause between the parties.
First, as noted above, the arbitration clause between the parties specifically provides either party the right to invoke arbitration at any stage of the proceedings before or after the invocation of the judicial process. Thus, the plain language of the contract explicitly affords defendants the right to invoke arbitration at any time. This Court will not permit plaintiff to escape the effect of its own contract. Certainly plaintiff would avail himself of the clear language of the contract it prepared if arbitration was perceived to be advantageous. Second, this Court has not been persuaded there has been "active participation" by defendants sufficient to cast "substantial prejudice" on plaintiffs. After plaintiff filed suit, defendants answered and eight months later invoked arbitration. However, plaintiff has not articulated what actual prejudice it sustained because of the delay and this Court will not assume any hardship was suffered absent proof to support that conclusion. Rather, this Court notes that there has not been "extensive discovery" or depositions, there have not been a slew of motions filed by either party, or requests to extend trial deadlines. Because this Court is unable to locate any substantial prejudice, the facts do not warrant a holding that the right to arbitration was waived in this case. Therefore, this Court must dismiss this matter in favor of arbitration.
Defendant also conceded that Section 3 of the Federal Arbitration Act directs federal courts to honor arbitration clauses and stay litigation pending resolution of arbitrable claims. However, the Fifth Circuit has held dismissal of an arbitrable cause of action is proper in some circumstances. Afford v. Dean Witter Reynolds, Inc, 975 F.2d 1161 (5th Cir. 1992). In Alford, the Court stated that when all issues raised in the district court must be submitted to arbitration, dismissal is proper. In this case, the Court holds that dismissal is warranted because the entire matter is encompassed by the arbitration clause.
Accordingly,
IT IS ORDERED that Plaintiffs' Motion for Summary Judgment is DENIED and defendant's Motion to Dismiss in Favor of Arbitration is GRANTED.