Opinion
Case No. 02 C 3047 Consolidated With Case No. 02 C 5801
December 4, 2003
MEMORANDUM OPINION
Before this court is Defendant Wellness International Network, LTD.'s ("Defendant") motion to stay proceedings pending appeal in civil actions 02 C 3047 and 02 C 5801. For the forgoing reasons, we deny the Defendant's motion.
BACKGROUND
Case 02 C 3047 Shariff, et al. v. Wellness International Network and case 02 C 5801 Tones, et al. v. Wellness International Network were originally assigned to Judge Manning. Judge Manning consolidated both of these cases and on January 9, 2003 Plaintiffs from both cases filed a consolidated and amended complaint against the Defendants. Defendants filed a motion to dismiss this complaint on March 10, 2003, Plaintiffs responded on May 15, 2003, and Defendants filed their reply on May 30, 2003. On August 5, 2003, case # 02 C 3047 was reassigned from Judge Manning to the undersigned Judge. On October 29, 2003, case # 02 C 5801 was reassigned from Judge Manning to the undersigned Judge.
On October 20, 2003, this court stated in a minute order following an initial status hearing that the court would issue a ruling on Defendant's motion to dismiss by mail before February 2, 2004. On the same day this court issued that minute order, the defendant filed with this court a motion to compel arbitration in the state of Texas. Def/s Mot. to Compel Arbitration p. 3, 4. On October 23, 2003, during a motion call, this court orally denied the defendant's motion to compel arbitration in the state of Texas stating that the defendant already had before mis court a motion to dismiss this action for lack of venue pursuant to 28 U.S.C. § 1406(a). This court notes that in both defendant's motion to dismiss and its reply brief, the defendant presented to this court an agreement between the parties that provided that the proper venue for the matter was in the state of Texas and that arbitration shall take place in the state of Texas. Def.'s Mot. to Dismiss p. 3; Def.'s Reply in Supp. of their Mot. to Dismiss p.'s 2-5. The defendant filed a motion to compel arbitration in the state of Texas while this court was already set to rule on a motion to dismiss which included the Defendant's argument that the agreement of the parties contained an arbitration clause in Texas.
On November 6, 2003, the defendant appealed this court's decision to deny the defendant's motion to compel arbitration to the Seventh Circuit. On November 7, 2003, the defendant filed with this court a motion to stay pending the appeal to the Seventh Circuit.
DISCUSSION
Generally, a denial of a motion to compel arbitration is appealable to the Seventh Circuit and generally a motion to stay pending such an appeal may be granted. However, the court finds that the defendant's motion to compel arbitration hi the state of Texas was a superfluous action inasmuch as the defendant's pending motion to dismiss for improper venue already included the arbitration clause in Texas. Def.'s Mot. to Dismiss p. 3; Def.'s Reply in Supp. of their Mot. to Dismiss p.'s 2-5. This Court did not deny the Defendant's motion to compel arbitration in Texas on the merits, but ruled that it would not grant such a motion at that time because the defendant already had a motion to dismiss before this court and a ruling on the motion was scheduled which would have been dispositive of the issue on the merits. A decision to grant the defendant's motion to compel arbitration would have been tantamount to granting the pending motion to dismiss. This court also notes that in this case it has not scheduled any discovery dates before the court rules on the defendant's motion to dismiss.
Therefore, this court finds that the defendant's motion to compel arbitration and the appeal from the denial of such motion — a denial which was based upon the fact that a motion to dismiss which included the arbitration agreement was already pending before this court and ripe for a ruling — is superfluous. Defendant's motion to stay pending appeal is moot inasmuch as no discovery has been scheduled to be stayed. In addition, in Bradford-Scott Data Corp. v. Physician Comp. Network, Inc., 128 F.3d 504, 506-507 (7th Cir. 1997), the Seventh Circuit stated "either the court of appeals or the district court may declare that the appeal is frivolous, and if it is, the district court may carry on with the case." Even though this court has not found the defendant's appeal to be frivolous, it has found that the defendant's motion to compel arbitration and the appeal from the denial of such motion is superfluous. Therefore, the defendant's motion to stay is denied.
Defendant's motion to dismiss on the grounds, among others, that venue in this case is in Texas and that the agreement of the parties provided for arbitration in Texas is fully briefed before the court. This court is scheduled to rule on the motion before February 2, 2004.