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Pryor v. Overseas Administrative Services

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA


May 18, 2010

MICHAEL PRYOR; JAMES FENSKE; ROBERT KLINE; JAMES BITTLE; ROY WHITED; DON HICKS; DAVID BURDEN, ROBERT STANLEY; RANDALL HUGGINS; AND ROGER WARREN, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED,
v.
OVERSEAS ADMINISTRATIVE SERVICES, LTD.; SERVICE EMPLOYEES INTERNATIONAL, INC.; KBR TECHNICAL SERVICES, INC.; KELLOGG BROWN & ROOT SERVICES, INC.; KBR, INC.; HALLIBURTON, INC.; KBR HOLDINGS, LLC; KELLOGG BROWN & ROOT LLC; KELLOGG BROWN & ROOT INTERNATIONAL, INC.; KELLOGG BROWN & ROOT, INC.; DII INDUSTRIES, LLC; AND DOES 1 THROUGH 1000, RESPONDENTS.

The opinion of the court was delivered by: The Honorable Bernard Zimmerman United States Magistrate Judge

ADMINISTRATIVE MOTION FOR AN EXPEDITED HEARING; [PROPOSED] ORDER THEREON [Proposed Hearing Date for Motion to Petitioners, Compel Arbitration in the Manner Ordered by the Arbitrator: May 19, 2010]

for an order granting this Administrative Motion for an Expedited Hearing. In support of their motion, Petitioners state the following:

Magistrate Judge Zimmerman. This Motion to Compel seeks an order that KBR return immediately to an arbitration that has been underway for more than two and a half years, as provided for in the parties' employment agreements and as ordered by the Arbitrator.

Petition for Order Compelling Arbitration in the Manner Ordered by the Arbitrator ("Amended 3. Petitioners served their Petition to Compel, their Amended Petition to Compel, and their Motion to Compel in the manner provided by the Federal Rules of Civil Procedure and the applicable arbitration agreements by delivering copies of these documents by hand to Respondents' counsel today, May 12, 2010. See Proof of Service, filed herewith; see also Exhibit 2 attached to Respondents' Texas counsel and to Respondents' Dispute Resolution Program Administrator. See 4. Section 4 of the FAA provides, in pertinent part, as follows:

Administrative Motion for an Expedited Hearing

Pursuant to the Federal Arbitration Act ("FAA"), 9 U.S.C. § 4, Petitioners move this Court

1. Petitioners have noticed their accompanying Motion to Compel Arbitration in the Manner Ordered by the Arbitrator for May 19, 2010 ("Motion to Compel"), at 10:00 a.m. before

2. Petitioners filed their original Petition for Order Compelling Arbitration in the Manner Ordered by the Arbitrator on May 4, 2010 ("Petition to Compel"), and filed their Amended Petition to Compel") and their Motion to Compel today, May 12, 2010.

Petition to Compel, Dkt. 3-1, at p. 25 of 74. Copies of these documents were also mailed to Proof of Service.

A party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any United States district court which, save for such agreement, would have jurisdiction under Title 28, in a civil action or in admiralty of the subject matter of a suit arising out of the controversy between the parties, for an order directing that such arbitration proceed in the manner provided for in such agreement. Five days' notice in writing of such application shall be served upon the party in default. Service thereof shall be made in the manner provided by the Federal Rules of Civil Procedure. The court shall U.S.C. § 4 (emphasis added). hear the parties five days after filing a petition to compel arbitration. See, e.g., Unionmutual Stock hear the parties, and upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue, the court shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement.

5. As set forth above, Section 4 of the FAA, 9 U.S.C. § 4, provides for the Court to Life Ins. Co. of America v. Beneficial Life Ins. Co., 774 F.2d 524 (1st Cir. 1985) (holding that "a hearing on the order compelling arbitration could be held by the district court any time" five days after the application was made); Roque v. Applied Materials, Inc., No. CV 03-1564-ST, 2004 WL 1212110, at *4 (D. Or. Feb. 20, 2004) (holding that § 4 of the FAA "requires the party opposing arbitration to be given five days' notice before a hearing is held regarding the application for arbitration").

filing of a petition to compel is to be five days, the local rule that motions are generally to be set for 35 days after a motion is filed do not apply. Because Petitioners have a statutory right to a hearing on five days' notice, Petitioners have not sought a stipulation from Respondents with respect to the timing of the hearing on this Motion to Compel.

the policy underlying the FAA "to move the parties to an arbitrable dispute out of court and into arbitration as quickly and easily as possible." See Moses H. Cone Memorial Hosp. v. Mercury U.S. 395, 404 (1967) (explaining "the unmistakably clear congressional purpose that the arbitration procedure, when selected by the parties to a contract, be speedy and not subject to delay and obstruction in the courts); Sanford v. Memberworks, Inc., 483 F.3d 956, 960-61 (9th Cir. 2007) F.3d 1149, 1153 (9th Cir. 2004)).

6. As the applicable statute provides that the time for a court determination following 7. Section 4's provision "for an expeditious and summary hearing" is consistent with Const. Corp., 460 U.S. 1, 22 (1983); see also Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 22 (quoting Moses H. Cone, 460 U.S. at 22, as quoted in Bushley v. Credit Suisse First Boston, 360 26

8. Petitioners have fulfilled the statutory requirements of notice by personally serving Respondents' counsel, in the manner provided for by the Federal Rules of Civil Procedure, and the 3 applicable arbitration agreements.

of May 19, 2010, or as soon thereafter as is convenient for the Court.

WHEREFORE, Petitioners request that the Court enter an order confirming a hearing date

No opposition having been received to the Administrative Motion for an Expedited Hearing, Pursuant to section 4 of the Federal Arbitration Act, 9 U.S.C. § 4, the Court will hear Petitioners' Motion to Compel Arbitration in the Manner Ordered by the Arbitrator as noticed by Petitioners for May 19, 2010 ("Motion to Compel"), at 10:00 a.m. At the hearing the Court will consider scheduling such further briefing and argument as necessary. Prior to the hearing the parties shall consent to or decline magistrate judge jurisdiction. The form to do so may be found at: http://www.cand.uscourts.gov.

IT IS SO ORDERED.

20100518

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