Plaintiff JOCA-ROCA REAL ESTATE LLC represented by JEFFREY TAYLOR PIAMPIANO DRUMMOND WOODSUM, WILLIAM L. PLOUFFE DRUMMOND WOODSUM, READE ELLIOTT WILSON DRUMMOND WOODSUM
Defendant ROBERT T BRENNAN, JR represented by STEPHEN Y. HODSDON HODSDON & AYER, MATTHEW J. WILLIAMS HODSDON & AYER
MEMORANDUM DECISION ON MOTION TO STAY ARBITRATION
John H. Rich III U.S. Magistrate Judge
The defendant, Robert T. Brennan, Jr., moves to stay the arbitration of this dispute, after that arbitration was initiated by the plaintiff well after it initiated this action. I grant his motion.
I. Procedural Background
On March 4, 2013, the plaintiff filed this action alleging breach of contract and fraud. ECF No. 1. A scheduling order issued on March 28, 2013. ECF No. 8. A consent motion for a confidentiality order was filed on September 18, 2013, and granted later that day. ECF Nos. 14 & 15. Four telephone conferences were held, resulting in, inter alia, extended discovery deadlines. ECF Nos. 11, 18, 21, 28. On December 6, 2013, nine months after commencing this action, the plaintiff filed a motion to stay this court action pending arbitration of the matters in dispute pursuant to a term of the underlying contract at issue. ECF No. 30.
While that motion was pending, the plaintiff initiated arbitration, and the defendant filed the instant motion to stay that arbitration on January 18, 2014. ECF No. 36. The defendant has not participated in the arbitration proceeding, which apparently is being postponed by the arbitrator pending the outcome of the defendant’s motion. On January 27, 2014, I denied the plaintiff’s motion to stay this action pending the arbitration. ECF No. 39. I granted a motion for oral argument on the defendant’s motion to stay the arbitration, and oral argument was held on March 10, 2014.
The parties disagree on the threshold issue of whether a federal court has the power to enjoin arbitration proceedings in this case. Defendant’s Motion to Stay Arbitration (“Motion”) (ECF No. 36) at 2; Opposition to Defendant’s Motion to Stay Arbitration (“Opposition”) (ECF No. 41) at 1-3. The authority cited by the defendant, Societe Generale de Surveillance v. Raytheon European Mgt. & Sys. Co., 643 F.2d 863 (1st Cir. 1981), holds that a federal court has the power to enjoin arbitration where both parties have not agreed by contract to arbitrate or where two arbitration proceedings dealing with the same issue are taking place simultaneously. Id. at 868. Neither situation is present here, where the court has held that the plaintiff has waived its contractual right to arbitrate. Memorandum Decision on Motion to Stay (ECF No. 39); Order Overruling Objection to Memorandum Decision on Motion to Stay (ECF No. 52).
The plaintiff cites nothing beyond case law supporting the general proposition that the Federal Arbitration Act, which is silent on the question now before the court, reflects a federal policy in favor of arbitration as a means of resolving disputes. Opposition at 1-2. In any event, the First Circuit settled the matter in PCS 2000 LP v. Romulus Telecomms., Inc., 148 F.3d 32 (1st Cir. 1998), when it said:
[The plaintiff] seeks an order staying arbitration as opposed to an order compelling arbitration. We deem this to be a distinction without a difference. We have held squarely that the power to enjoin an arbitration is “the concomitant of the power to compel arbitration, ” Societe General de Surveillance, S.A. v. Raytheon European Mgmt. & Sys. Co., 643 F.2d 863, 868 (1st Cir. 1981), and thus the same provision of the FAA, 9 U.S.C. § 4, authorizes both types of orders.
Id. at 35 (emphasis in original).
The plaintiff argues, in the alternative, that Maine law controls on this question, and 14 M.R.S.A. § 5928(2) allows a court to stay an arbitration proceeding only upon a showing that there is no agreement to arbitrate. Assuming arguendo that this is a correct interpretation of the Maine statute, the foundation upon which the plaintiff bases this argument cannot bear its weight. The plaintiff asserts that the agreement that includes the arbitration provision at issue also includes an agreement that “Maine law . . . would control the interpretation of their agreement[, ]” and that this language makes Section 5928(2) applicable to this dispute. Opposition at 3. It does not. Resolution of the question of whether this court may stay an arbitration that the plaintiff seeks to press in the face of this court’s ruling that the plaintiff has waived its contractual right to do so does not involve interpretation of the ...