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Greg Opinski Construction, Inc. v. Braswell Construction

November 9, 2009

GREG OPINSKI CONSTRUCTION, INC., A CALIFORNIA CORPORATION, PLAINTIFF,
v.
BRASWELL CONSTRUCTION, INC., A CALIFORNIA CORPORATION; THE EXPLORER INSURANCE COMPANY, AN UNKNOWN ENTITY; AND DOES 1 THROUGH 40, INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

ORDER RE MOTION FOR STAY (Doc. 18)

On August 27, 2009, Defendant Braswell Construction, Inc. ("Braswell") filed a Motion for Stay of Proceedings pursuant to Title 9 of the United State Code section 3. (Doc. 18; see also Docs. 19-21.) On October 5, 2009, Plaintiff Greg Opinski Construction, Inc. ("Opinski") filed an Opposition to the motion. (Doc. 23; see also Doc. 24.) Thereafter, on October 14, 2009, Braswell filed its reply to the opposition. (Doc. 26; see also Doc. 27.) On October 20, 2009, the Court determined the matter was suitable for decision without oral argument pursuant to Local Rule 78-230(h). Thus, the hearing scheduled for October 23, 2009, was vacated. (Doc. 28.)

RELEVANT PROCEDURAL HISTORY

On April 9, 2009, Opinski filed a complaint asserting breach of contract, recovery on payment bond, and quantum meruit, naming Braswell Construction, Inc. and The Explorer Insurance Company ("Explorer") as defendants. (Doc. 1.) On May 22, 2009, Braswell filed its answer to the complaint. (Doc. 9.) On June 3, 2009, Explorer filed its answer to the complaint. (Doc. 10.)

On July 15, 2009, this Court conducted a scheduling conference with the parties. Various discovery deadlines and hearings were scheduled, including a jury trial set before District Judge Lawrence J. O'Neill on June 28, 2010. (Doc. 17.)

On August 27, 2009, Braswell filed the instant motion. (Doc. 19.) No other matters are currently pending before the Court.

DISCUSSION

The Parties' Positions

Braswell seeks a stay of the instant proceedings based upon Title 9 of the United States Code section 3, the Federal Arbitration Act. Braswell asserts that in November 2007, it and Opinski entered into an agreement for construction of the Hodgson Duplex in Yosemite National Park. More particularly, paragraph 22 of the agreement provides that

[a]ny controversy or claim arising out of or relating to this contract or the breach thereof which is not resolved pursuant to the provisions of paragraph 11 shall be exclusively resolved through and under the auspices of the American Arbitration Association in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association. (Doc. 21, Ex. A, ¶ 22.) Braswell asserts that because Opinski's complaint concerns claims arising out of the contract and purported breach thereof, this action should be stayed pending arbitration proceedings. (Doc. 19 at 2-3.)

Opinski opposes the motion on the grounds that Braswell "failed to file a Petition to Compel Arbitration" and participated in discovery as a part of the instant proceedings. Thus, according to Opinski, Braswell has waived its right to arbitration and the stay must be denied.

Additionally, Opinski argues that this Court has exclusive jurisdiction over the matter because Braswell was served with the summons and complaint on April 22, 2009, prior to it having filed any demand for arbitration. (Doc. 23 at 1-5.)

In reply, Braswell asserts that a petition to compel arbitration was unnecessary and inappropriate because the arbitration agreement between Braswell and Opinski is self-executing. (Doc. 26 at 2-3.) Braswell further replies that it did not waive any right to demand arbitration pursuant to the agreement between the parties as it has consistently claimed its right to arbitrate, asserted that right as an affirmative defense in its answer, and attempted to ascertain Opinski's voluntary compliance to the provision prior to filing the instant motion with the Court. Neither, asserts Braswell, ...


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