Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Him Portland, LLC v. Devito Builders

July 26, 2002

HIM PORTLAND, LLC, PLAINTIFF
v.
DEVITO BUILDERS, INC., DEFENDANT
DEVITO BUILDERS, INC., PLAINTIFF,
v.
HIM PORTLAND, LLC, DEFENDANT/APPELLEE.
v.
INTERBANK FUNDING CORPORATION, PARTY-IN-INTEREST



The opinion of the court was delivered by: Gene Carter, District Judge

MEMORANDUM OF DECISION AND ORDER

Before the Court is a motion to compel arbitration and to stay the above-captioned proceedings pending arbitration, which has been brought by HIM Portland, LLC, a Massachusetts corporation with a principal place of business in Longmeadow, Massachusetts (hereinafter "HIM Portland"). DeVito Builders, Inc., a Florida corporation with a principal place of business in Tampa, Florida (hereinafter "DeVito"), objects to the motion, arguing that HIM Portland has waived the right to arbitrate by proceeding with litigation in default of the alternative dispute resolution agreement in their Contract.

Facts

HIM Portland contracted with DeVito for the renovation and conversion of the Susse Chalet located at 1200 Brighton Avenue in Portland, Maine. *fn1 On or about January 22, 2002, DeVito filed a "Notice of Lien Claim" against HIM Portland in the Cumberland County Registry of Deeds in Book 17272, Page 249, claiming a lien on the subject premises for the sum of $142,648.56. On April 4, 2002, HIM Portland filed a Complaint against DeVito in the United States District Court for the District of Maine. On April 5, 2002, DeVito filed a Complaint against HIM Portland in the Maine Superior Court. HIM Portland removed that claim to federal court on or about April 22, 2002, DeVito notified the Court that it did not object, and on May 20, 2002, the cases were consolidated pursuant to Local Rule 7(b). On May 6, 2002, DeVito filed its Answer to HIM Portland's Complaint. On May 9, 2002, HIM Portland moved to compel arbitration and stay the proceedings in this Court. The Contract provides, in pertinent part

9.10.1 Claims, disputes and other matters in question arising out of or relating to this Contract, including those alleging an error or omission by the Architect but excluding those arising under Paragraph 15.2 [Hazardous Materials], shall be referred initially to the Architect for decision. Such matters, except those relating to aesthetic effect and except those waived as provided for in Paragraph 9.11 [Consequential Damages] and Subparagraphs 14.5.3 and 14.5.4 [making or acceptance of final payment constitutes waiver], shall, after initial decision by the Architect or 30 days after submission of the matter to the Architect, be subject to mediation as a condition precedent to arbitration or the institution of legal or equitable proceedings by either party.

9.10.2 If a claim, dispute or other matter in question relates to or is the subject of a mechanic's lien, the party asserting such matter may proceed in accordance with applicable law to comply with the lien notice of filing deadlines prior to resolution of the matter by the Architect, by mediation or by arbitration.

9.10.3 The parties shall endeavor to resolve their disputes by mediation which, unless the parties mutually agree otherwise, shall be in accordance with the Construction Industry Mediation Rules of the American Arbitration Association currently in effect. . . . The request may be made concurrently with the filing of a demand for arbitration but, in such event, mediation shall proceed in advance of arbitration or legal or equitable proceedings, which shall be stayed pending mediation for a period of 60 days from the date of filing, unless stayed for a longer period by agreement of the parties or court order.

9.10.4 Claims, disputes and other matters in question arising out of or relating to the Contract that are not resolved by mediation, except matters relating to aesthetic effect and except those waived as provided for in Paragraph 9.11 and Subparagraphs 14.5.3 and 14.5.4, shall be decided by arbitration which, unless the parties mutually agree otherwise, shall be in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association currently in effect. . . . The award rendered by the arbitrator or arbitrators shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof. Complaint, Exhibit A (Docket No. 1) (hereinafter "Contract") at 10-11.

Discussion

DeVito opposes HIM Portland's motion to stay these proceedings pending arbitration, arguing that some of its claims are not arbitrable, that those claims which are arbitrable are not ripe for arbitration and, further, that HIM Portland is in default. The Federal Arbitration Act provides

If any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration. 9 U.S.C.A. § 3.

The first issue is whether the Federal Arbitration Act obligated the parties to arbitrate their claims against each other. Brennan v. King, 139 F.3d 258, (1st Cir. 1998) (citing McCarthy v. Azure, 22 F.3d 351, 354-55 (1st Cir. 1994) ("a party seeking to subsitute an arbitral forum for a judicial forum must show, at a bare minimum, that the protagonists have agreed to arbitrate some claims") (emphasis in orginal)). The Contract provides that the parties may elect to arbitrate claims "arising out of or relating to the Contract." Complaint, Exhibit A (Docket No. 1) at 10, 11.

DeVito argues that this dispute is not ripe for arbitration because neither party has referred a dispute to the architect or to mediation and, further, that this Court has no authority under the Federal Arbitration Act to compel parties to perform any form of alternative dispute resolution other than arbitration. HIM Portland did not respond to this argument, but simply maintains that all of the claims fall within the scope of the arbitration agreement. The Contract provides for a three-step process requiring the parties to take the following steps: (1) submit the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.