Opinion
Civil No. 1998-127.
March 20, 2001.
Lee J. Rohn, Esq., Beth Moss, Esq.
ORDER GRANTING ANTHONY CRANE'S MOTIONS TO STAY AND TO COMPEL ARBITRATION
THIS MATTER came for consideration on Anthony Crane International's (Anthony Crane) Motion to Stay this matter pursuant to 9 U.S.C.A. § 3. Plaintiff filed a response in opposition to the motion and Anthony Crane filed its reply to such opposition. Anthony Crane then also filed its Motion to Compel Arbitration which is an adjunct to the prior motion and requires no further response.
By Order entered on May 6, 1998, in Alexander Freeman v. Anthony International, L.P., D.Ct. STX Civ. 1997/58, the Court found that the arbitration provision included in Anthony Crane's employment contract was valid and enforceable. On October 14, 1999, a similar Order was entered in Guadalupe v. Anthony International, L.P., STX, Civil 1998/103. Such Orders are incorporated herein by reference. See also Charles v. Virgin Islands Service Co. 1999 WL 176035 (D.V.I.).
Plaintiff's attorney represented the Plaintiffs in that matter. The Complaint alleged wrongful termination and discrimination.
Plaintiff's attorney also represented the Plaintiff in that matter which also concerned employment discrimination.
In this matter, Plaintiff contends that the facts herein are distinguishable from Freeman and that additional arguments are made that were not considered in Freeman.
I. Waiver
Plaintiff asserts that Anthony Crane has been derelict in commencement of the arbitration process and has thus waived the right to compel arbitration. Plaintiff cites paragraph 15 of the subject employment agreement which provide in relevant part as follows:
Within fifteen (5) calendar days of receipt of timely notice from an employee the company shall submit a request to the Federal Medication and Conciliation Service of the American Arbitration Association to furnish a list of five impartial arbitrators.
Plaintiff maintains that Anthony Crane failed to comply with such provision.
Consistent with the strong preference for arbitration in federal courts, waiver `is not to be lightly inferred,' and waiver will normally be found `only where the demand for arbitration came long after the suit commenced and when both parties have engaged in extensive discovery.'
Paine Webber, Inc. v. Faragalli, 61 F.3d 1063, 1068-69, (3d Cir. 1995).
In this matter Anthony Crane filed its Motion to Stay Pending Arbitration on July 8, 1998 (Plaintiff's Complaint was filed on May 20, 1998). Upon review of all pleadings and exhibits, the court finds that "under the totality of circumstances herein . . . that Defendant has not waived arbitration." See Nabisco, Inc. v. Michael A. Simmonds, Inc. 1993 WL 277229 *2 (D.V.I.).
II. Separate Claims Against HOVIC/Amerada Hess
Plaintiff argues that her separate claims against HOVIC-Amerada Hess are in any event not subject to arbitration [citing Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 20, 103 S.Ct. 927, 939 (1983)]. No party has maintained otherwise, and nothing in Cone Memorial Hospital provides any impediment to implementation of arbitration involving Plaintiff and Anthony Crane. See: C. Itoh Co. (America), Inc. v. Jordan Internationl Co., 552 F.2d 1228, 1231-32 (7th Cir. 1977).
III. The Arbitration Agreement Contains Provisions that Are Contrary to Public Policy
Plaintiff contends that the Arbitration Agreement contains a shortened period of limitations and a cost allocation clause that render such agreement unenforceable. Both such issues were previously considered by this Court. See Guadalupe at ftn. 1, p. 4. Further, Anthony Crane has not asserted any period of limitation in opposition to arbitration — but rather sought to compel arbitration and accordingly that issue is moot.
Paragraph 15 of the Agreement provides that:
The losing party shall bear the costs of the arbitrator's fees and expenses. The Company shall advance the arbitrator fees and expenses and, if the Company is successful in the arbitration, the EMPLOYEE agrees to reimburse the Company for the arbitrator's fees and expenses. Other than the arbitrator's fees and expenses, each party shall bear its own costs and expenses including attorney's fees.
In Goodman v. ESPE America, Inc. 2001 WL 64749 *3, the Court considered a "loser pays" clause of an agreement to arbitrate. The Court found that such provision was enforceable and did not deny Plaintiff an effective and accessible forum. Id. *4. The Court cited inter alia: Williams v. Cigna Fin. Advisors, Inc. 197 F.3d 752, 763-64 (5th Cir. 1999); Rosenberg v. Merrill Lynch, Pierce, Fenner Smith, Inc., 170 F.3d 1, 16 (1st Cir. 1999) [refusing to invalidate arbitration agreement with fee-splitting provision because fees not yet levied and judicial review available; and noting that arbitration often more affordable for Plaintiffs than litigation); Arakawa v. Japan Network Group, 56 F. Supp.2d 349, 354-55 (S.D.N.Y. 1999).
In Goodman the Court also considered Green Tree Fin. Corp. v. Randolph, 121 S.Ct. 513, 522-23 wherein the Supreme Court held that an arbitration agreement that is silent as to who pays arbitration costs is still enforceable despite the risk that it may subject Plaintiff to extensive costs. The Court's reasoning in Goodman is adopted herein.
Upon consideration of the above, it is hereby;
ORDERED that Anthony Crane's Motion to Stay proceedings pending arbitration and to compel arbitration are GRANTED as to Defendant Anthony Crane (only), and Plaintiff and Anthony Crane shall cooperate in commencement of arbitration.