Summary
noting that Louisiana's “Direct Action Statute permits plaintiff [to] sue the insurer directly,” but does not bar “the insurer from raising the issue of pending arbitration”
Summary of this case from Simmons v. Sabine River Auth. of LouisianaOpinion
Civil Action No. 02-2231, Section: "R" (5)
December 2, 2002
ORDER AND REASONS
Before the Court are three motions: plaintiff's motion to remand; defendants' motion to dismiss plaintiff's lawsuit, to compel arbitration, or to stay the lawsuit pending resolution of court-ordered arbitration; and, plaintiff's motion to sever defendant, Steamship Mutual Underwriting Association Limited. For the following reasons, the Court denies plaintiff's motion to remand. The Court grants defendants' motion to compel arbitration as to Stolt-Nielsen, S.A. and Stolt Tankers Joint Services. The Court further grants defendants' motion to stay plaintiff's claims against Steamship Mutual Underwriting Association. The Court denies plaintiff's motion to sever.
I. Background
Plaintiff, Ernesto Francisco, is a Philippine national who allegedly suffered an injury while employed aboard the M/T STOLT ACHIEVEMENT. In his employment contract, an arbitration clause provided that:
In cases of claims and disputes arising from this employment, the parties covered by a collective bargaining agreement shall submit the claim or dispute to the original and exclusive jurisdiction of the voluntary arbitrator or panel of arbitrators. If the parties are not covered by a collective bargaining agreement, the parties may at their option submit the claim or dispute to either the original and exclusive jurisdiction of the National Labor Relations Commission (NLRC), pursuant to Republic Act (RA) 8042 otherwise known as the Migrant Workers and Overseas Filipino Act of 1995 or to the original and exclusive jurisdiction of the voluntary arbitrator or panel of arbitrators. If there is no provision as to the voluntary arbitrators to be appointed by the parties, the same shall be appointed from the accredited voluntary arbitrators of the National Conciliation and Mediation Board of the Department of Labor and Employment.
(Pl.'s Mot. to Remand, at 4.)
In 2000, plaintiff filed suit in state court against the M/T STOLT ACHIEVEMENT, Stolt Achievement, Inc., and Stolt-Nielsen Transportation Group, Ltd. The defendants in that lawsuit removed the action to this Court. This Court, first, found that it had jurisdiction to hear the case under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the "Convention") and its enabling legislation, 9 U.S.C. § 201-208; second, determined that the arbitration clause in plaintiff's employment contract covered claims sounding in both contract and tort; and, third, granted defendants' motion to compel arbitration. See Francisco v. M/T STOLT ACHIEVEMENT, 2001 WL 290172 (E.D.La. 2001). Plaintiff appealed to the Fifth Circuit, which affirmed this Court's findings. See Francisco v. M/T STOLT ACHIEVEMENT, 293 F.3d 270 (5th Cir. 2002).
The M/T STOLT ACHIEVEMENT is a ship under the Cayman Islands flag and registry. Stolt Achievement, Inc., is a Cayman Islands corporation and the owner of the ship. Stolt-Nielsen Transportation Group, Ltd. is the operator of the ship.
Plaintiff then filed another lawsuit in state court stemming from the same alleged accident aboard the M/T STOLT ACHIEVEMENT. This time, plaintiff named as defendants Stolt-Nielsen, S.A., Stolt Tankers Joint Services, and Steamship Mutual Underwriting Association Limited. In the complaint, plaintiff asserts that Stolt-Nielsen, S.A. may be plaintiff's employer and may be the beneficial owner, manager, or operator of the M/T STOLT ACHIEVEMENT; that Stolt Tankers Joint Services may be the beneficial owner, manager, or operator of the M/T STOLT ACHIEVEMENT; and, that Steamship Mutual Underwriting is the insurer of the M/T STOLT ACHIEVEMENT. Plaintiff pleads the single business entity doctrine as a basis for liability. Defendants timely removed plaintiff's lawsuit to this Court. Plaintiff now moves the Court for a jury trial on the issue of remand, asserting that outstanding factual questions must be resolved before the Court can determine the enforceability and applicability of the arbitration clause in plaintiff's contract. Defendants, meanwhile, move the Court to dismiss plaintiff's action on the ground that plaintiff's claims are barred by res judicata. In addition, defendants move to compel arbitration or to stay these proceedings pending resolution of the arbitration proceeding that the Court ordered in plaintiff's first lawsuit. Last, plaintiff moves to sever the ship's insurer.
II. Plaintiff's Motion to Remand
Defendants predicate jurisdiction on the Convention and its enabling legislation, which is codified at 9 U.S.C. § 201-208. Specifically, § 205 provides that:
Where the subject matter of an action or proceeding pending in a State court relates to an arbitration agreement or award falling under the Convention, the defendant or the defendants may, at any time before the trial thereof, remove such action or proceeding to the district court of the United States. . . .9 U.S.C. § 205. Plaintiff asserts that the subject matter of this litigation does not "relate to" an arbitration agreement because defendants are not signatories to the arbitration agreement in dispute.
The Fifth Circuit recently addressed the issue of when a lawsuit "relates to" an arbitration agreement, holding that a lawsuit involving a party that was a non-signatory to the arbitration agreement may nevertheless "relate to" that agreement. In Beiser v. Weyler, 284 F.3d 665 (5th Cir. 2002), the plaintiff worked as a consultant in the oil and gas industry and was the sole employee of Horizon Energy Limited. Horizon Energy Limited entered into a number of contracts that pertained to development rights to an oil and gas field in Hungary. These contracts contained clauses providing that any dispute would be submitted to arbitration in London. When a dispute arose, the plaintiff, in its individual capacity, filed a lawsuit in Texas state court against signatories to the arbitration agreement alleging a number of state law tort claims. When the defendants removed the case to federal court under § 205, the plaintiff asserted that the lawsuit did not "relate to" an arbitration agreement because the plaintiff, in its individual capacity, was not a signatory to the agreements. Plaintiff argued that he had only signed the arbitration agreements in his capacity as a corporate officer of Horizon Energy Limited. The Fifth Circuit rejected the plaintiff's narrow interpretation of what "relates to" an arbitration contract, noting that the "normal sense" of the phrase "relates to" includes having a "connection with" or "reference to." Beiser, 284 F.3d at 669. The Fifth Circuit stated that "whenever an arbitration agreement falling under the Convention could conceivably affect the outcome of the plaintiff's case, the agreement 'relates to' plaintiff's suit," even if the plaintiff was not a signatory to the agreement. Id.
Here, plaintiff asserts that the lawsuit does not "relate to" an arbitration agreement because the defendants are non-signatories to the agreement. Defendants concede that they are not signatories to plaintiff's employment contract. (Def.'s Mot. to Dismiss, at 8.) As previously mentioned, the first defendant is Stolt-Nielsen, S.A., which may be plaintiff's employer and may be the beneficial owner, manager, or operator of the M/T STOLT ACHIEVEMENT. (Petition for Damages, ¶ 2.) The second defendant is Stolt Tankers Joint Services, which may be the beneficial owner, manager, or operator of the M/T STOLT ACHIEVEMENT. ( Id.) The third defendant is Steamship Mutual Underwriting, the insurer of the M/T STOLT ACHIEVEMENT. ( Id.) Defendants assert that Stolt-Nielsen, S.A., is the parent company of Stolt Nielsen Transportation Group, Ltd. and Stolt Achievement, Inc., which are signatories to the agreement and which were named defendants in plaintiff's first lawsuit before this Court. Defendants further assert that Stolt Tankers Joint Services is not an entity existing under law and thus is not capable of being a party to this litigation. (Def.'s Mot. to Dismiss, at 3, 4.) The record contains no evidence of these corporate structures.
Plaintiff has therefore sued defendants, including one that may be his employer, for injuries sustained during the course of his employment. His employment contract contained an arbitration agreement that both this Court and the Fifth Circuit have determined to be valid and enforceable. See Francisco, 293 F.3d 270; Francisco, 2001 WL 290172. Even if plaintiff establishes that he cannot ultimately be forced into arbitration with the non-signatories, plaintiff's suit "at least has a 'connection with'" the employment contract containing an arbitration agreement. Beiser, 284 F.3d at 669. This is in part because a non-signatory to an arbitration agreement can, in limited circumstances, compel arbitration against a signatory-plaintiff. Grigson v. Creative Artists Agency, L.L.C., 210 F.3d 524 (5th Cir. 2000); see discussion infra Part III.B. Here, defendants have moved the Court to compel arbitration on this ground, or, in the alternative, to stay plaintiff's lawsuit pending resolution of the previously-ordered arbitration. This means that the arbitration agreement "could conceivably affect" plaintiff's lawsuit. Because this is enough to meet the "low bar of 'relates to,'" Beiser, 284 F.3d at 669, defendants may remove the lawsuit to this Court under 9 U.S.C. § 205.
Plaintiff asserts that because a number of outstanding factual issues pertaining to the whether an arbitration agreement was made entitle plaintiff to a jury trial on the issue of remand. 9 U.S.C. § 4. Plaintiff further asserts that the arbitration provision is unenforceable under M/S BREMEN v. Zapata OffShoreCo., 407 U.S. 1, 15, 92 S.Ct. 1907, 1916 (1972). The Court finds that any inquiry into the enforceability of plaintiff's arbitration agreement is barred by res judicata. See discussion infra Part III.A. Accordingly, the Court denies plaintiff's motion to remand as well as plaintiff's request for a jury trial on the issue of remand.
III. Defendants' Motion To Dismiss, To Compel Arbitration or To Stay These Proceedings
Defendants move the Court, first, to dismiss plaintiff's lawsuit as barred by res judicata; second, to compel plaintiff to pursue arbitration; or, third, to stay these proceedings pending the resolution of related arbitration ordered by this Court, which order was affirmed by the Fifth Circuit.
A. Res Judicata
Defendants first move the Court to dismiss plaintiff's claims on the ground that they are barred by res judicata. The federal law of res judicata applies to federal judgments. See Recoveredge L.P. v. Pentecost, 44 F.3d 1284, 1290 (5th Cir. 1995). Under federal law, claim preclusion "precludes the parties or their privies from relitigating issues that were or could have been raised in that action." Allen v. McCurry, 449 U.S 90, 94, 101 S.Ct. 411, 414 (1980). Under issue preclusion, by contrast, "once a court has decided an issue of fact or law necessary to its judgment, that decision may preclude relitigation of the issue in a suit on a different cause of action involving a party to the first case." Id. Issue preclusion, or collateral estoppel, does not require mutuality, meaning that "a litigant who was not a party to a federal case [may] use collateral estoppel 'offensively' in a new federal suit against the party who lost on the decided issue in the first case." Id. at 95, 101 S.Ct. at 415; see also Gulf Island-IV, Inc. v. Blue Streak-Gulf IS OPS, 24 F.3d 743, 746 (5th Cir. 1994). A defendant in a second suit may invoke collateral estoppel against a plaintiff who lost on the same claim in an earlier suit. See Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 329, 91 S.Ct. 1434, 1443 (1971). Issue preclusion applies when the following elements are met: "(1) the issue at stake must be identical to the one involved in the prior action, (2) the issue must have been actually litigated, and (3) the determination of the issue in the prior action must have been a part of the judgment in that earlier action." Southmark Corporation v. Coopers Lybrand, 163 F.3d 925, 932 (5th Cir. 1999); see also Swate v. Hartwell, 99 F.3d 1282, 1289 (5th Cir. 1996). A judgment that meets these requirements has preclusive effect even if such a judgment was erroneous. Recoveredge, 44 F.3d at 1296. In addition, a change in the law does not prevent the application of res judicata. Wilson v. Lynaugh, 878 F.2d 846, 850 (5th Cir. 1989) (so holding in the context of claim preclusion).
Defendants assert that plaintiff's claims are issue precluded because identical issues were actually litigated and were part of the judgment in plaintiff's prior lawsuit. In plaintiff's first lawsuit, this Court determined that the Convention applied to plaintiff's employment contract, a determination that required finding that the contract (1) constitutes an agreement in writing to arbitrate the tort claims arising from the injuries at issue, (2) provides for arbitration in the territory of a Convention signatory, (3) arises out of a commercial legal relationship, and (4) pertains to a party that is not an American citizen. Francisco, 2001 WL 290172. This Court further rejected plaintiff's argument that the arbitration clause is unreasonable and therefore unenforceable under M/S BREMEN v. Zapata OffShoreCo., 407 U.S. 1, 15, 92 S.Ct. 1907, 1916 (1972). Francisco, 2001 WL 290172, at *6. The Court's decision was a final, appealable judgment. McDermott International, Inc. v. Underwriters at Lloyds, 981 F.2d 744, 747 (1993) (holding that when an arbitration action, such as plaintiff's, is "independent" and not "embedded" among other claims that do not pertain to arbitration, a court's decision to compel arbitration constitutes a final decision). Plaintiff, in fact, appealed the decision to the Fifth Circuit, which affirmed this Court's findings. Francisco, 293 F.3d at 278. Therefore, plaintiff is barred by res judicata from relitigating these issues.
Specifically, the Court finds that plaintiff is barred from relitigating the issue of whether the arbitration provision is enforceable. This means that plaintiff is barred from litigating the question of whether outstanding factual issues remain as to the making of the agreement. It also means that plaintiff is barred from litigating the issue of whether the provision is "unreasonable" under M/S BREMEN and LA. REv. STAT. Ann. § 23:921(A)(2). Plaintiff raised the issue of whether the arbitration is enforceable under M/S BREMEN in the first litigation. The Court decided the issue at that time, which decision was integral to the disposition of the case. The Louisiana Supreme Court's recent decision in Sawicki v. K/S STAVANGER PRINCE, 802 So.2d 598 (La. 2001), though relevant to the issues at hand, does not re-open to future litigation any related court decision that preceded it. Wilson, 878 F.2d at 850. Rather, despite Sawicki, plaintiff is barred by res judicata from relitigating the issue of the enforceability of the arbitration provision.
Importantly, however, the prior litigation did not address the specific issue of whether the second crop of defendants, who are non-signatories to plaintiff's employment contract, may nevertheless compel plaintiff to pursue arbitration. Therefore, the Court may not compel arbitration on the ground of res judicata, but must address this particular issue on the merits.
B. Application of the Arbitration Clause to Non-Signatories
Defendants move the Court to compel arbitration of plaintiff's claims. At issue is whether defendants, as non-signatories to plaintiff's employment contract, may nevertheless compel plaintiff to pursue arbitration. The general rule is that only signatories to an arbitration agreement may invoke the arbitration clause. See Air Line Pilots Ass'n v. Miller, 523 U.S. 866, 875, 118 S.Ct. 1761, 1767 (1998); Neal v. Hardee's Food Systems, Inc., 918 F.2d 34, 37 (5th Cir. 1990). The Fifth Circuit has nevertheless held that under limited circumstances a non-signatory to an arbitration agreement can compel arbitration against a signatory-plaintiff. Grigson v. Creative Artists Agency, L.L.C., 210 F.3d 524 (5th Cir. 2000). The Fifth Circuit has identified two circumstances where principles of equitable estoppel act so as to bar a signatory-plaintiff's lawsuit against non-signatory defendants:
First, equitable estoppel applies when the signatory to a written agreement containing an arbitration clause must rely on the terms of the written agreement in asserting its claims against the nonsignatory. . . . Second, application of equitable estoppel is warranted when the signatory to the contract containing an arbitration clause raises allegations of substantially interdependent and concerted misconduct by both the nonsignatory and one or more of the signatories to the contract.Id. at 527 (quoting MS Dealer Serv. Corp. v. Franklin, 177 F.3d 942, 947 (11th Cir. 1999)); Hill v. GE Power Systems, Inc., 282 F.3d 343 (5th Cir. 2002). The "linchpin" for equitable estoppel cases is equity, fairness. Grigson, 210 F.3d at 527.
The Court does not find that the first of these two circumstances applies to this lawsuit. The first circumstance requires that the plaintiff-signatory rely on the written agreement containing the arbitration clause by, for example, seeking to hold a non-signatory defendant liable for breaching a duty imposed by the agreement. This prevents a signatory to a contract from "hav[ing] it both ways: it cannot, on the one hand, seek to hold the non-signatory liable pursuant to duties imposed by the agreement, which contains an arbitration provision, but, on the other hand, deny arbitration's applicability because the defendant is a non-signatory." Id. at 528. Here, plaintiff does not rely on his written employment agreement to sue under the Jones Act. It is not the employment agreement that imposes on defendants the duty to maintain a safe working environment. Rather, this duty is imposed upon vessel owners and operators by the Jones Act itself. 46 U.S.C. § 688. Therefore, the first circumstance does not apply because plaintiff need not "rely on the terms of the written agreement in asserting its claims against the nonsignator[ies]." Hill, 282 F.3d at 348-49.
The second circumstance, by contrast, applies to allegations of substantially interdependent and concerted misconduct by non-signatories and signatories. Id. at 349. In Hill, this prong was met because the complaint alleged that a non-signatory defendant "worked in tandem" with a signatory to misappropriate trade secrets. Id. Here, plaintiff seeks to recover from two corporate entities — Stolt-Nielsen, S.A. and Stolt Tankers Joint Services — that are closely related to another corporate entity that is a signatory to the arbitration agreement. Plaintiff already charged this signatory — Stolt Achievement, Inc. — with the very same allegations of Jones Act liability in a prior lawsuit that arises out of the same core of operative facts. In the lawsuit against the moving defendants, plaintiff alleges that the relationship among the non-signatory defendants and the signatory may render them a "single business entity." Under Louisiana law, the single business entity doctrine is invoked to render one corporation responsible for the liabilities of the other. See Pine Tree Associates v. Doctors' Associates, Inc., 654 So.2d 735, 738 (La.Ct.App. 1995); Adams v. Associates Corporation of North America, 390 SO.2d 539, 542 (La.Ct.App. 1980). Implicit in the single business entity doctrine is the idea that seemingly distinct corporations are in fact acting in concert to achieve certain goals. The Court therefore concludes that plaintiff alleges substantially interdependent and concerted misconduct by non-signatories and signatories. Hill, 282 F.3d at 348-49; see also J.J. Ryan Sons, Inc. v. Rhone Poulenc Textile, S.A., 863 F.2d 315, 320-21 (4th Cir. 1988) (holding that "[w]hen the charges against a parent company and its subsidiary are based on the same facts and are inherently inseparable, a court may refer claims against the parent to arbitration even though the parent is not formally a party to the arbitration agreement") Importantly, the Court notes that plaintiff does not allege in the Petition for Damages that the third defendant in this lawsuit, the insurer, engaged in concerted misconduct with signatories to the arbitration agreement. Therefore, the Court only compels arbitration as to Stolt-Nielsen, S.A. and Stolt Tankers Joint Services. The Court further notes that even if plaintiff could not be compelled to arbitrate his claims against these two defendants, then a stay of these claims would be appropriate for the following reasons.
C. Stay
Courts may stay proceedings as to multiple defendants pending the outcome of arbitration, even if some of those defendants are non-signatories to the arbitration agreement. Grigson, 210 F.3d at 528 (citing with approval Reisfeld Son Import Co., v. S.A. Eteco, 530 F.2d 679, 681 (5th Cir. 1976)); Harvey v. Joyce, 199 F.3d 790, 795 (5th Cir. 2000); Subway Equipment Leasing Corporation v. Forte, 169 F.3d 324, 329 (5th Cir. 1999). In Reisfeld, the plaintiff filed suit alleging breach of contract, misuse of customer information, and antitrust violations against three defendants, including a signatory to an arbitration agreement, the signatory's parent corporation, and its successor. The court stayed the proceedings as to all three defendants pending arbitration, even though only one of the three was a signatory to the arbitration agreement. The Reisfeld court stated that the "charges against the [two non-signatory defendants) were based on the same operative facts" and, more importantly, that "if the parent corporation was forced to try the case, the arbitration proceedings would be rendered meaningless and the federal policy in favor of arbitration effectively thwarted." Reisfeld, 530 F.2d at 681.
The Court finds that the policies identified by the Fifth Circuit in Reisfeld, as recently re-affirmed in Harvey and Subway, apply here with equal force. Were the Court to first compel arbitration with signatories and then permit plaintiff to proceed in a second lawsuit against the signatory's parent corporation and insurer, the arbitration proceedings previously ordered would be effectively rendered meaningless. Therefore, the Court grants defendants' request to stay plaintiff's claims against Steamship Mutual Underwriting Association Limited.
IV. Plaintiff's Motion to Sever
Last, plaintiff moves to sever Steamship Mutual Underwriting Association Limited under FED. R. Civ. P. 21. Rule 21 provides:
Misjoinder of parties is not a ground for dismissal of an action. Parties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just. Any claim against a party may be severed and proceeded with separately.
FED. R. CIV. P. 21. The Court notes that it "has the discretion to sever an action if it is misjoined or might otherwise cause delay or prejudice." Applewhite v. Reichhold Chemicals, Inc., 67 F.3d 571, 574 (5th Cir. 1995).
First, it clear that Steamship Mutual Underwriting Association is not misjoined. The law pertaining to permissive joinder is set forth in Rule 20, which provides in relevant part that:
All persons . . . may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions and if any question of law or fact common to all defendants will arise in the action.
FED. R. CIV. P. 20; see also Porter v. Milliken Michaels, Inc., 2000 WL 1059849 (E.D.La. 2000). Plaintiff's claim against the insurer arises out of the same transaction and shares common questions of law and fact with plaintiff's actions against the other defendants. Therefore, the insurer is not misjoined. Plaintiff does not assert otherwise.
Second, it is equally clear that joinder of the insurer along with the other defendants does not subject plaintiff to undue delay or prejudice. This is because the Court has ordered a stay of plaintiff's claims against the insurer. See discussion supra Part III.B. Were the Court to sever plaintiff's claim against the insurer, which it does not, it would nevertheless maintain its stay order as to plaintiff's claims against the insurer. Therefore, the insurer's presence in this lawsuit does not subject plaintiff to undue delay or prejudice.
Plaintiff asserts that the Louisiana Direct Action Statute permits a plaintiff to sue an insurer directly and, at the same time, bars the insurer from raising the defense of arbitration. The statute provides that:
The injured person or his or her survivors or heirs . . . at their option, shall have a right of direct action against the insurer within the terms and limits of the policy; and, such action may be brought against the insurer alone, or against both the insured and insurer jointly and in solido, in the parish in which the accident or injury occurred. . . .
LA. REV. STAT. ANN. § 22:655(B)(1). The Court agrees that the Direct Action Statute permits plaintiff sue the insurer directly, but it disagrees with the proposition that the statute bars the insurer from raising the issue of pending arbitration. The statute makes no mention of such a bar. Nor, for that matter, do the cases to which plaintiff cites. Zimmerman v. International Companies Consulting, Inc., 107 F.3d 344 (5th Cir. 1997); Talbott Big Foot, Inc. v. Boudreux, 887 F.2d 611 (5th Cir. 1989). In both Zimmerman and Talbott, the plaintiff sought to recover directly against an insurer for injuries sustained in the course of employment. The insurer's protection and indemnity policy with the employer-insured contained an arbitration clause requiring arbitration of disputes as to the policy's coverage. In both cases, the insurer sought to stay the plaintiff's lawsuit pending resolution of its arbitration with the insured as to policy coverage. The Fifth Circuit held that the district court should not issue a stay, as the plaintiff's right to recovery should not be delayed by a dispute between an insurer and an insured as to coverage. Zimmerman, 107 F.3d at 346; Talbott, 887 F.2d at 613.
What distinguishes Zimmerman and Talbott from the plaintiff before the Court is that, here, plaintiff himself was a party to the arbitration agreement. The cases simply do not stand for the proposition, asserted by plaintiff, that the Direct Action Statute bars an insurer from requesting a stay pending resolution of court-ordered arbitration between its insured and plaintiff. Rather, the thrust of Fifth Circuit precedent indicates that a plaintiff may not circumvent an arbitration agreement by proceeding against non-signatories in a manner that serves to undermine arbitration compelled by courts. Grigson, 210 F.3d at 528; Harvey, 199 F.3d at 795; Subway, 169 F.3d at 329; Reisfeld, 530 F.2d at 681. Accordingly, the Court denies plaintiff's motion to sever.
V. Conclusion
For the foregoing reasons, the Court denies plaintiff's motion to remand. The Court grants defendants' motion to compel arbitration as to Stolt-Nielsen, S.A. and Stolt Tankers Joint Services. The Court further grants defendants' motion to stay plaintiff's claims against Steamship Mutual Underwriting Association. The Court denies plaintiff's motion to sever.