United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
C. Nye U.S. District Court Judge.
before the Court is Plaintiff Ventive, LLC's Motion to
Appoint an Arbitrator. Dkt. 18. Having reviewed the record
and briefs, the Court finds that the facts and legal
arguments are adequately presented. Accordingly, in the
interest of avoiding further delay, and because the Court
finds that the decisional process would not be significantly
aided by oral argument, the Court will address this motion
without oral argument. Dist. Idaho Loc. Civ. R.
7.1(d)(2)(ii). For the reasons outlined below, the Court
finds good cause to GRANT Plaintiff's Motion to Appoint
Court recounted the background of this dispute in its
previous order staying the case. Dkt. 16, at 1-3. The Court
now incorporates that background in full by reference. Since
then, the United States District Court for the Southern
District of Florida (“Florida court”) issued an
order in the Florida action compelling arbitration, but
“decline[d] to decide the question of the appropriate
forum for arbitration, ” and closed the case.
CaringOnDemand, LLC v. Ventive LLC, No.
18-cv-80211-BLOOM/Reinhart, 2018 WL 3093543, at *3-5 (S.D.
Florida June 22, 2018).
27, 2018, Plaintiff filed a Motion to Lift the Stay imposed
in the Idaho action, and to Appoint an Arbitrator. Dkt. 18.
This Court lifted the stay on June 28, 2018, but did not rule
on the Motion to Appoint an Arbitrator. See Dkt. 19.
On July 6, 2018, Defendants Caring People, LLC, and
CaringOnDemand, LLC filed their Second Motion to Dismiss the
Idaho action, arguing that the collateral attack doctrine
bars any relief Plaintiff seeks, including the appointment of
an arbitrator, and therefore this Court lacks jurisdiction
over the dispute. However, in subsequent filings, Defendants
reversed their position and joined Plaintiff's request
for this Court to appoint an arbitrator. Dkt. 24, at 4
(“Notwithstanding the Collateral Attack Rule,
Defendants Join in the Pending Request for Appointment of an
Arbitrator . . . Because of the practical realities arising
from the Florida court's refusal to act, Defendants will
join with Ventive in this request.”). (capitalization
in original). The Court ultimately denied Defendants'
Second Motion to Dismiss, and joined Avior Sciences, LLC as a
party defendant in this case. Dkt. 29, at 8-9.
raised only one argument in opposition to Ventive's
Motion to Appoint an Arbitrator-that it was an impermissible
collateral attack. The Court has already rejected this
argument and explained that the collateral attack doctrine
does not apply. Dkt. 29, at 7. Additionally, Defendants have
since joined Plaintiff's request for this Court to
appoint an arbitrator. Accordingly, the Court GRANTS
Plaintiff's Motion to Appoint an Arbitrator.
appointment is governed by Section 9 of the Federal
Arbitration Act, 9 U.S.C. § 5, which states:
If in the agreement provision be made for a method of naming
or appointing an arbitrator or arbitrators or an umpire, such
method shall be followed; but if no method be provided
therein, or if a method be provided and any party thereto
shall fail to avail himself of such method, or if for any
other reason there shall be a lapse in the naming of an
arbitrator or arbitrators or umpire, or in filling a vacancy,
then upon the application of either party to the controversy
the court shall designate and appoint an arbitrator or
arbitrators or umpire, as the case may require, who shall act
under the said agreement with the same force and effect as if
he or they had been specifically named therein; and unless
otherwise provided in the agreement the arbitration shall be
by a single arbitrator.
arbitration clause at issue in this case states:
This Agreement will be construed in accordance with the laws
of Florida as applied to a contract to be fully performed
therein and without reference to laws pertaining to conflict
of laws. THE PARTIES agree to waive all rights to a trial by
jury and hereby agree to submit all disputes to binding
arbitration, which shall be submitted and conducted by one
arbitrator, the costs of which shall be equally shared among
THE PARTIES. The parties agree that the arbitrator shall have
authority to grant injunctive or other forms of equitable
relief to any party. Any arbitration relating to a dispute
under Section 5 of this Agreement shall be conducted in
Boise, Idaho or within 10 miles of CONSULTANT'S principal
place of business, Any arbitration relating to Section 2
shall be conducted in Delray Beach, Florida or within 10
miles of COMPANIES SCIENCE's principal place of business.
Any arbitration relating to Sections 2 and 5 shall take place
in Boise or Delray Beach, or within 10 miles of the principal
place of business of whichever party first demands
arbitration in writing pursuant to this Agreement. The
prevailing party of any such arbitration or dispute shall be
awarded all costs of arbitration including attorney's
fees and travel costs. It is specifically understood and
agreed that any party may enforce any award rendered pursuant
to the arbitration provisions of this Section by bringing
suit in any court of competent jurisdiction.
Dkt. 1-1, at 5-6.
arbitration agreement provision does not provide a method of
naming an arbitrator. It simply requires that one arbitrator
conduct the proceedings. The parties have been unable to
agree on an arbitrator, and now ask the Court to make an
appointment instead. Rather than doing so immediately, the