United States District Court, D. Maryland
Charles B. Day United States Magistrate Judge.
this Court is Defendant's Rule 12(b)(3) Motion to Compel
Arbitration and Dismiss or, in the Alternative, Stay
Proceedings Pending Arbitration (ECF No. 22)
(“Defendant's Motion”). The Court has
reviewed the Motion, related memoranda and applicable law.
No. hearing is deemed necessary. See Local Rule
105.6 (D. Md.). For the reasons set forth below, the Court
GRANTS IN PART Defendants' Motion.
Applicable Legal Standard.
Court has recently stated that “a challenge based on a
forum-selection clause, including an arbitration clause,
should be addressed by way of a motion to dismiss for
improper venue under Rule 12(b)(3).” Stone v. Wells
Fargo Bank, 361 F.Supp.3d 539, 548 (D. Md. 2019). It is
without question that an agreement that requires binding
arbitration is a forum-selection clause. Scherk v.
Alberto-Culver Co., 417 U.S. 506, 519 (1974). The Court
may decide to hold an evidentiary hearing on the matter, but
if it decides not to do so, then the plaintiff only has to
make a prima facie showing that venue is proper, and
all inferences are viewed in the light most favorable to the
plaintiff. Mitrano v. Hawes, 377 F.3d 402, 405
(4thCir. 2004); Aggarao v. Mol Ship Mgmt.
Co., 675 F.3d 355, 366 (4th Cir. 2012).
Unlike motions to dismiss under Fed.R.Civ.P. 12(b)(6), under
Rule 12(b)(3), the Court is permitted to consider exhibits
submitted by the parties. Sucampo Pharm. Inc. v. Astellas
Pharma, Inc., 471 F.3d 544, 549-50 (4th Cir.
2006). In this instance, the Court will not hold an
evidentiary hearing, but will consider the issues in the
light most favorable to Plaintiff.
The Agreement to Arbitrate Requires This Court to Enter a
Stay of the Present Proceedings.
is no dispute but that the parties agreed to arbitration and
that all disputes presently between the parties are
arbitrable when they agreed in writing to the Arbitration
Submission Agreement (the “Agreement”) (ECF No.
1-1). Moreover, the parties have been participating in the
arbitration of the present disputes for many years. Pl.'s
Opp'n 3; Compl. ¶¶ 6 - 11. “Plaintiff is
not at this time asking this Court to take over the
arbitration on the merits. . . . Rather, in this lawsuit,
Plaintiff seeks injunctive and other equitable relief from
Defendant, . . . .” Pl.'s Opp'n 2.
disputes between the parties are governed in the first
instance by the Agreement, and the Agreement is governed by
the Federal Arbitration Act, 9 U.S.C. § 1 et.
seq., (2009) (the “FAA”). These rules are
applicable to foreign arbitrations, as the United States has
ratified the Convention on the Recognition and Enforcement of
Foreign Arbitral Awards (the “Convention Act”)
found at 9 U.S.C. §§ 201-08 (2009). Furthermore,
this Court is satisfied that the Agreement is enforceable
under the Convention Act given that it meets the four
required elements, namely that:
1) there is an agreement in writing within the meaning of the
Convention; 2) the agreement provides for arbitration in the
territory of a signatory of the Convention; 3) the agreement
arises out of a legal relationship, whether contractual or
not, which is considered commercial; and 4) a party to the
agreement is not an American citizen, or that the commercial
relationship has some reasonable relation with one or more
Balen v. Holland Am. Line Inc., 583 F.3d 647, 654-55
(9th Cir. 2009).
claims are arbitrable, as the Agreement states that the
“Parties agree that they may present any form of claim
or dispute including, but not limited to claims for
accountings.” Agreement 2. “All Disputes . . .
shall be finally settled under the rules of conciliation and
arbitration at the Beirut Chamber of Commerce and Industry
(CCIB) by three arbitrators appointed in accordance with the
said Rules, . . . .” Id. “In the event
that a Party refuses to cooperate with a discovery request,
the Arbitrators and/or any Party acting upon a discovery
order issued by the Arbitrators, shall have the right of
recourse to any court having jurisdiction, to obtain an Order
mandating compliance.” Id., at 5. The claims
and/or relief pursued by Plaintiff in this Court are devoid
of any order issued by the Arbitrators or any other
determination by the Arbitrators.
Circuit law is abundantly clear. “When a valid
agreement to arbitrate exists between the parties and covers
the matter in dispute, the FAA commands the federal courts to
stay any ongoing judicial proceedings and to compel
arbitration.” Hooters of Am., Inc, v.
Phillips, 173 F.3d 933, 937 (4th Cir. 1999).
Plaintiff however, comes to the Court nonetheless. In his
estimation, too much time has passed and too many assets
might eventually be frittered away while he continues to wait
for a final determination. The arbitration has been
proceeding for more than a decade. Plaintiff also contends
there are procedural irregularities not being addressed.
Pl.'s Opp'n 5. Plaintiff even expresses his fear of
corruption without claiming that said corruption touches upon
or even taints the on-going arbitration proceedings.
consideration of the facts and factors set forth above, the
Court believes the entry of a stay of all proceedings in the
federal court for the District of Maryland is appropriate.
This Court has Discretion to Enter an Order to ...