Opinion
C-1-00-611
January 31, 2001
ORDER
The above styled case is before the Court on Petitioner's Amended Motion to Compel Arbitration and Stay state court proceedings (doc. no. 11), and Petitioner's Motions for Arbitration and Stay (doc. nos. 4 and 9). Also pending is Respondent's Motion to Dismiss (doc. no. 8), Petitioner's Memorandum in Opposition (doc. no. 13), Respondent's Reply (doc. no. 14), and Petitioner's Surreply. Pursuant to the Court's Order of October 26, 2000, the parties have filed proposed Findings of Facts and Conclusions of Law (doc. nos. 20, 21, and 22).
As the Court stated in a previous order, the parties are disputing the jurisdiction of this Court. In the October 26, 2000 Order, the Court concluded that diversity jurisdiction should be determined according to the petition filed in federal court and the Court determined that the face of the petition alleges diversity jurisdiction. Before the Court now is whether Richard Wilhelm, whose presence would destroy diversity jurisdiction, is a necessary and indispensable party that must be joined pursuant to Federal Rule of Civil Procedure 19.
FACTS AND PROCEDURAL HISTORY
PaineWebber enters into arbitration agreements with its customers. On August 11, 1992, Samuel Ginsburg entered into a written contract with PaineWebber, called the "Client's Agreement," whereby Mr. Ginsburg agreed to arbitrate disputes between himself and PaineWebber.
That contract specifically provides as follows:
• ARBITRATION IS FINAL AND BINDING ON THE PARTIES.
• THE PARTIES ARE WANING THEIR RIGHT TO SEEK REMEDIES IN COURT, INCLUDING THE RIGHT TO JURY TRIAL.
• PRE-ARBITRATION DISCOVERY IS GENERALLY MORE LIMITED THAN AND DIFFERENT FROM COURT PROCEEDINGS.
• THE ARBITRATOR'S AWARD IS NOT REQUIRED TO INCLUDE FACTUAL FINDINGS OR LEGAL REASONING AND ANY PARTY'S RIGHT TO APPEAL OR TO SEEK MODIFICATION OF RULINGS BY THE ARBITRATORS IS STRICTLY LIMITED.
• THE PANEL OF ARBITRATORS WILL TYPICALLY INCLUDE A MINORITY OF ARBITRATORS WHO WERE OR ARE AFFILIATED WITH THE SECURITIES INDUSTRY.
I AGREE, AND BY CARRYING AN ACCOUNT FOR ME PAINEWEBBER AGREES, THAT ANY AND ALL CONTROVERSIES WHICH MAY ARISE BETWEEN ME AND PAINEWEBBER CONCERNING ANY ACCOUNT, TRANSACTION, DISPUTE OR THE CONSTRUCTION, PERFORMANCE, OR BREACH OF THIS OR ANY OTHER AGREEMENT, WHETHER ENTERED INTO PRIOR, ON OR SUBSEQUENT TO THE DATE HEREOF, SHALL BE DETERMINED BY ARBITRATION. ANY ARBITRATION UNDER THIS AGREEMENT SHALL BE HELD UNDER AND PURSUANT TO AND BE GOVERNED BY THE FEDERAL ARBITRATION ACT, AND SHALL BE CONDUCTED BEFORE AN ARBITRATION PANEL CONVENED BY THE NEW YORK STOCK EXCHANGE, INC. OR THE NATIONAL ASSOCIATION OF SECURITIES DEALERS, INC. I MAY ALSO SELECT ANY OTHER NATIONAL SECURITIES EXCHANGE'S ARBITRATION FORUM UPON WHICH PAINEWEBBER IS LEGALLY REQUIRED TO ARBITRATE THE CONTROVERSY WITH ME, INCLUDING, WHERE APPLICABLE, THE MUNICIPAL SECURITIES RULE MAKING BOARD. SUCH ARBITRATION SHALL BE GOVERNED BY THE RULES OF THE ORGANIZATION CONVENING THE PANEL. I MAY ELECT IN THE FIRST INSTANCE THE ARBITRATION FORUM, BUT IF I FAIL TO MAKE SUCH ELECTION, BY REGISTERED LETTER OR TELEGRAM ADDRESSED TO YOU AT YOUR MAIN OFFICE, BEFORE THE EXPIRATION OF FIVE DAYS AFTER RECEIPT OF A WRITTEN REQUEST FROM YOU TO MAKE SUCH AN ELECTION, THEN YOU MAY MAKE SUCH ELECTION. THE AWARD OF THE ARBITRATORS, OR OF THE MAJORITY OF THEM, SHALL BE FINAL, AND JUDGMENT UPON THE AWARD RENDERED MAY BE ENTERED IN ANY COURT OF COMPETENT JURISDICTION.
The foregoing language was bolded and capitalized in the "Client's Agreement."
Subsequent to the "Client's Agreement," on August 13, 1998, Samuel J. Ginsburg executed another contract with PaineWebber, called the "Master Account Agreement," whereby Mr. Ginsburg again agreed to arbitrate disputes between himself and PaineWebber.
The "Master Account Agreement" entered into between PaineWebber and Mr. Ginsburg provided as follows:
ARBITRATION
• Arbitration is final and binding on the parties.
• The parties are waiving their right to seek remedies in court, including the right to jury trial.
• Pre-arbitration discovery is generally more limited than and different from court proceedings.
• The arbitrator's award is not required to include factual findings or legal reasoning and any party's right to appeal or to seek modification of rulings by the arbitrators is strictly limited.
• The panel of arbitrators will typically include a minority of arbitrators who were or are affiliated with the securities industry.
Client agrees, and by carrying an account for Client the Firm agrees that, any and all controversies which may arise between the Firm, any of Firm's employees or agents and Client concerning any account, transaction, dispute or the construction, performance, or breach of this or any other agreement, whether entered into prior, on or subsequent to the date hereof, shall be determined by arbitration. Any arbitration under this agreement shall be held under and pursuant to and be governed by the Federal Arbitration Act, and shall be conducted before an arbitration panel convened by the New York Stock Exchange, Inc. or the National Association of Securities Dealers Inc. Client may also select any other national securities exchange's arbitration forum upon which the Firm is legally required to arbitrate the controversy with the Client, including, where applicable, the Municipal Securities Rule Making Board. Such arbitration shall be governed by the rules of the organization convening the panel. Client may elect in the first instance the arbitration forum, but if Client fails to make such election, by certified mail, return receipt requested, or telegram addressed to the Firm at its main office, and to the attention of the Legal Department, before the expiration of five (5) days after receipt of a written request from the Firm to make such election then the Firm may make such election. The award of the arbitrators, or of the majority of them, shall be final, and judgment on the award rendered may be entered in any court of competent jurisdiction.
The "Master Account Agreement" specifically provided that "BY SIGNING BELOW, I ACKNOWLEDGE AND AGREE: . . . that in accordance with the last paragraph of the Master Account Agreement entitled, "Arbitration," I am agreeing in advance to arbitrate any controversies which may arise with PaineWebber in accordance with the terms outlined therein . . . .
Samuel J. Ginsburg passed away on October 9, 1999. Respondent, Alfred M. Cohen, is the duly appointed and acting Executor of the Estate of Samuel J. Ginsburg.
Petitioner PaineWebber, Inc. is a registered securities broker. It maintains two sales offices in Hamilton County, Ohio, one of which is located on the thirty-third floor of the 312 Walnut Street Building (the downtown Cincinnati office). Richard Wilhelm, who is a resident of Ohio, was the branch manager of PaineWebber's downtown Cincinnati office. Mr. Ginsburg had several accounts with PaineWebber at its downtown Cincinnati office. From 1992 through 1999, PaineWebber employed Richard Zenni as its broker at the downtown Cincinnati office.
On July 26, 2000, Cohen filed a Compliant and Jury Demand in the action captioned Cohen v. PaineWebber, Inc., Case No. A0004567, in Hamilton County, Ohio Court of Common Pleas. In that complaint, Cohen asserts causes of action sounding in tort for unlawful conversion and fraudulent concealment, and seeks punitive damages, against PaineWebber and Richard Wilhelm as joint tortfeasors. On July 28, 2000, PaineWebber filed its Petition to Compel Arbitration, Enforce Arbitration Agreement, and Stay Civil Action (the Petition) in this Court.
On August 21, 2000, the parties submitted an agreed standstill agreement to the Hamilton County Common Pleas Court, which the Common Pleas Court entered. Under the terms of that entry, the parties agreed that no action would be taken in the Hamilton County action until this Court had an opportunity to make a determination on PaineWebber's petition to compel arbitration.
The agreement of the parties to stay the Hamilton County Action renders Petitioner's Motions to Stay (doc. no. 4-2 and doc. no. 9-1) MOOT.
On October 31, 2000, the Hamilton County Common Pleas Court held a case management conference in the Hamilton County Action. At that conference, the Common Pleas Court scheduled a trial date of June 25, 2001 and assigned various other deadlines for the completion of discovery and for the filing of pretrial motions and trial briefs in the Hamilton County Action.
LAW AND ANALYSIS
As stated above, the issue before the Court is whether Richard Wilhelm is a necessary and indispensable party to this action under Rule 19. Respondent Cohen, for jurisdictional purposes, is a resident of Ohio. Petitioner PaineWebber, for jurisdictional purposes, is a resident of Delaware and New York. Richard Wilhelm is a resident of Ohio. If it is determined that Wilhelm is necessary and indispensable, his presence would destroy diversity jurisdiction. Where joinder of a party would destroy subject matter jurisdiction, the court must dismiss the action if the party is "indispensable" to the litigation.
"The first step in determining the question of joinder under Rule 19 is whether a person is necessary to the action and should be joined if possible." Soberay Machine Equipment Co. v. MRF Limited, Inc., 181 F.3d 759, 763-64 (6th Cir. 1999). F.R.C.P. 19(a) provides:
(a) Persons to be Joined if Feasible. A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in the person's absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may (I) as a practical matter impair or impede the person's ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest. If the person has not been so joined, the court shall order that the person be made a party. If the person should join as a plaintiff but refuses to do so, the person may be made a defendant, or, in a proper case, an involuntary plaintiff. If the joined party objects to venue and joinder of that party would render the venue of the action improper, that party shall be dismissed from the action.
"[I]n the absence of personal jurisdiction, or if venue as to the person is improper, the court must proceed to . . . 19(b)." Soberay, 181 F.3d at 764. F.R.C.P. 19(b) provides:
(b) Determination by Court Whenever Joinder not Feasible. If a person as described in subdivision (a)(1)-(2) hereof cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. The factors to be considered by the court include: first, to what extent a judgment rendered in the person's absence might be prejudicial to the person or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person's absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.
A decision to dismiss based on nonjoinder "must be made pragmatically, in the context of the substance of each case, rather than by a procedural formula," (Provident Tradesmens Bank Trust Co. v. Patterson, 390 U.S. 102, 119 n. 16 (1968), "by considering all "the practical potential for prejudice" to all parties, including those not before it."Owens-Illinois Inc. v Meade, 186 F.3d 435, 441 (4th Cir. 1999) (quotingSchiumberger Indus., Inc. v. National Sur. Corp, 36 F.3d 1274, 1286 (4th Cir. 1994)). "It is to be stressed that the criteria set forth in Rule 19 are not to be applied mechanically nor are they to be used to override compelling substantive interests." Schutten v. Shell Oil Co., 421 F.2d 869, 873 (5th Cir. 1970). "In applying Rule 19 the courts must refrain from taking a view either too broad or too narrow in determining `prejudicial' effect of a judgment. The watchwords of Rule 19 are `pragmatism' and `practicality.'" Id. at 874.
In MS Dealer Service Corp. v. Franklin, 177 F.3d 942 (11th Cir. 1999), Sharon Franklin and Jim Burke Motors, Inc. (Burke) executed a contract whereby Franklin agreed to purchase a vehicle from Burke. The contract included a service contract through MS Dealer. The contract also included an arbitration clause. Id.
After buying the vehicle, Franklin discovered defects in the car and filed suit in Alabama state court against Burke, MS Dealer and Chrysler Credit Corporation. Id. MS Dealer then filed a petition in federal court to compel Franklin to arbitrate her claims pursuant to the FAA. The MS Dealer court determined that diversity jurisdiction should be decided based solely on the petition filed in federal court and not whether the underlying state court action was removable. In that action, Franklin also argued that a coconspirator/joint tortfeasor (Burke) named in the underlying state action was an indispensable party and would thus destroy diversity in the federal action. The MS Dealer court stated that a "tortfeasor with the usual joint-and-several liability is merely a permissive party to an action against another of like liability." Id. at 946 (citations omitted). The MS Dealer court found that Burke was "not indispensable with respect to Franklin's claims against MS Dealer." Id. at 946. The MS Dealer case is clearly distinguishable from the case at bar. In the MS Dealer case, the court pointed out that "(1) an arbitrator has already ruled in favor of Jim Burke on all of Franklin's claims against it and (2) the state court has dismissed Franklin's claims against Jim Burke with prejudice." Id. at 946. The MS Dealer court then reasoned, "[i]n light of the binding ruling in favor of Jim Burke and its dismissal from the state court action with prejudice, Jim Burke is not an indispensable party." Id. In the case before this Court, Cohen's claims against Wilhelm are still pending in the state court action.
The MS Dealer court also addressed whether the district court properly denied MS Dealer's petition to compel arbitration on the ground that MS Dealer was not a signatory to the contract. Id. at 946. The court found that there were at least three exceptions which allowed a nonsignatory to a contract to compel arbitration (1) equitable estoppel, (2) "when under agency or related principles, the relationship between the signatory and nonsignatory defendants is sufficiently close that only by permitting the nonsignatory to invoke arbitration may evisceration of the underlying arbitration agreement between the signatories be avoided" and (3) "when the parties to a contract together agree, upon formation of their agreement, to confer certain benefits thereunder upon a third party, affording that third party rights of action against them on the contract." Id. at 947 (quoting Sunkist Soft Drinks; Inc v. Sunkist Growers, Inc., 10 F.3d 753 (11th Cir. 1993) and (quoting Boyd v. Homes of Legend, Inc., 981 F. Supp. 1423 (M.D. Ala. 1997)).
Equitable estoppel allows a nonsignatory to compel arbitration in two circumstances. The first is "when the signatory to a written agreement containing an arbitration clause must rely on the terms of the written agreement in asserting its claims against the nonsignatory." Id. (quotingSunkist Soft Drinks, 10 F.3d at 757. "Application of equitable estoppel is [also] warranted . . . when the signatory to the contract containing the arbitration clause raises allegations . . . substantially interdependent and concerted misconduct by both the nonsignatory and one or more of the signatories to the contract." Id. (quoting, Boyd, 981 F. Supp. at 1433).
The MS Dealer court determined that "[b]oth of the circumstances giving rise to equitable estoppel exist" because "Franklin's claims against MS Dealer makes reference to and presumes the existence of the . . . contract" and "each of her fraud and conspiracy claims depends on her contractual obligation . . ." Id. at 947-48. The court also determined that the claims against MS Dealer and Burke were inseparable because Franklin alleged that they were conspiring. Id.
As stated above, the arbitration portion of PaineWebber's "Master Account Agreement" stated that "any and all controversies which may arise between the Firm, any of the Firm's employees or agents and Client concerning any account, transaction, dispute . . . shall be determined by arbitration." In the affidavit of Neil Barry, Corporate Vice President and Assistant General Counsel at PaineWebber Inc., Mr. Barry states that "Richard Wilhelm, Branch Manager of the Cincinnati office, has been an employee of PaineWebber since June 1989 and is also covered by the Arbitration Clause contained in these Agreements." Doc. 11, Ex. C. Thus, although Wilhelm is a nonsignatory, he may be able to compel arbitration in appropriate circumstances. Cohen raises claims against Wilhelm and PaineWebber alleging substantially interdependent misconduct. It could be interpreted that the parties to the contract apparently confer the benefit of the arbitration agreement on Wilhelm, and that Wilhelm's relationship with PaineWebber is sufficiently close that only by permitting the nonsignatory to invoke arbitration may evisceration of the underlying agreement be avoided.
In Doctor's Associates, Inc. v. Distajo, 66 F.3d 438, 445 (2nd Cir. 1995), the court determined that `diversity of citizenship is determined by reference to the parties named in the proceeding before the district court, as well as any indispensable parties who must be joined pursuant to Rule 19." See Prudential-Bache Sec., Inc. v. Fitch, 966 F.2d 981, 988 (5th Cir. 1992)("jurisdiction for a petition to compel arbitration [must] be determined from the face of the petition"). The Doctor's Assoc. court went on to say that "individuals who are not parties to the arbitration agreement cannot be `indispensable' parties under Rule 19(b) if they do not meet either of the threshold tests of 19(a)." Id. at 446. The court determined that the parties at issue were not indispensable because "complete relief" could be afforded with those parties i.e. an order compelling arbitration, and the possible prejudice of piecemeal litigation is overcome by the FAA's strong bias in favor of arbitration.Id. at 446. The Doctor's Assoc. court concluded that "[a] district court should not consider the citizenship of strangers to the arbitration contract, since they are not "parties [to] the suit arising out of the controversy within the meaning of the FAN" Id. However, this Court has determined that Wilhelm is covered by the Agreement based on Mr. Barry's affidavit and the language of the Agreement. Thus, it could be interpreted that Wilhelm is not a stranger to the arbitration contract for the reasons discussed above.
Further, the Sixth Circuit U.S. Court of Appeals has not held that an agent may never be considered an indispensable party; but rather, has stated that the facts of a case must be examined before making this determination. Soberay, 181 F.3d at 765. The Sixth Circuit "recognized long held Supreme Court precedent stating that there is no prescribed formula for determining whether a party is indispensable." Id. (citing,Niles-Bement-Pond Co. v. Iron Moulder's Union, 254 U.S. 77, 80 (1920)).
The case sub judice is distinguishable from Local 670, United Rubber, Cork, Linoleum and Plastic Workers of America v. International Union 822 F.2d 613 (6th Cir. 1987). In Local 670, a Tennessee local (Local 670) brought an action against Armstrong Rubber Company (the Company) alleging the Company had breached the collective bargaining agreement by entering into a new wage agreement with a California local (Local 703) and shifting work from Local 670 to Local 703. Id. Local 670 and Local 703 were two of five locals signatory to a master collective bargaining agreement with the Company. "In addition to the single master agreement, each local union also enter[ed] into supplemental agreements addressing issues specific to that local and supplementing, but not contradicting or amending, the master agreement." Id. at 615.
The Company entered into an agreement with Local 703 reducing wages at the Hanford, California plant. Local 670, 822 F.2d at 615. Local 670 contended that the Company had no right to alter the basic wage structure of one local in a supplemental agreement. Id. at 616. Local 670 also argued that after the Company reduced wages with Local 703, the Company laid off members of Local 670 and increased work with Local 703. Id.
The Local 670 court determined that under 19(a)(2), "Local 703's interest in upholding the validity of its wage reduction agreement . . . is sufficiently `related to' the subject of the action . . . to make its joinder desirable. Id. at 620. The court also found that the Company's "risk of incurring inconsistent obligations as a result of arbitrating the question of validity of its subsequent bilateral agreement without Local 703's presence also renders joinder the preferable course." Id. However, the Local 670 court concluded that 703 was not an indispensable party. Id. at 621. The court reasoned that the "contract between Local 703 and [the Company] is not the contract which is the subject of Local 670's grievance here." Id. The court explained, "it becomes clear that the contract between Local 703 and [the Company] is wholly collateral to the issue in this proceeding, which is the arbitrability of the alleged breach of the contract between the [C]ompany and Local 670." Id. at 622. The court stated that
no conclusion is reached as to the substantive rights of any of the parties. . . . While Local 703's presence at the arbitration proceeding may arguably be deemed `indispensable,' that is not the question before the court at this time. . . . Clearly, then, the district court erred in this portion of its analysis by looking solely to the consequences of the substantive outcome of an arbitration hearing conducted in Local 703's absence.Id. at 622.
In the case at bar, Wilhelm and PaineWebber are covered by the same contract, therefore the contract covering Wilhelm cannot be said to be wholly collateral to the issue in this proceeding. Also, this Court is not looking solely to the consequences of the substantive outcome of an arbitration hearing conducted in Wilhelm's absence. Rather, this Court is looking at possible inconsistent decisions regarding whether arbitration is even required in the case against PaineWebber and the case against Wilhelm. In other words, two different courts would be called on to interpret the same contract. "Furthermore, one of the purposes, though not the sole purpose, of Rule 19 is the avoidance of multiple litigation of essentially the same issues." Schutten v. Shell Oil Co., 421 F.2d 869, 874 (5th Cir. 1970).
The case at bar is most analogous to Owens-Illinois, Inc. v. Meade, 186 F.3d 435 (4th Cir. 1999). The Owens-Illinois appellate court determined that the district court lacked jurisdiction because "the parties excluded from the Petition to Compel were necessary and indispensable parties under Fed.R.Civ.P. 19 and, . . . their joinder destroys diversity." Id. at 438.
In Owens-Illinois, Owens entered into settlement agreements with West Virginia attorneys to settle future asbestos tort cases against Owens. This agreement had arbitration provisions. Several plaintiffs from both West Virginia and Ohio filed subsequent tort actions in a West Virginia state court. In order to block this state court action, Owens filed a Petition to Compel Arbitration in the U.S. District Court for the Southern District of West Virginia naming only the West Virginia plaintiffs and specifically excluding the Ohio plaintiffs. Owens requested a TRO and a Stay of the state court proceedings. Id.
The Owens-Illinois parties agreed that the only possible independent basis for jurisdiction was diversity of citizenship. The court determined that the Ohio plaintiffs were necessary parties because
permitting this suit to continue in both the state and federal courts would likely subject all of the parties to conflicting legal obligations in a manner prohibited by Rule 19(a)(2)(ii). As the district court noted, in the instant case both courts are being asked to make determinations on the validity and interpretation of the Agreement, creating high likelihood of incongruous results . . . If this action was allowed to proceed one court might compel arbitration on the basis of the Agreement, while the other found that, because Owens-Illinois breached the Agreement, alternative judicial remedies were available to some of the Plaintiffs. This potential for factual and legal `whip-saw' weighs heavily in favor of having one court adjudicate the entire case under all of the affected parties before it.Id. at 441. The court then concluded that the Ohio plaintiffs were indispensable under Rule 19(b). The court stated:
the high potential for factual and legal whipsawing indicates the parties will be prejudiced by any judgment rendered in absence of the non-diverse Plaintiffs and, therefore, such a resolution would not be adequate . . . . it is hard to see how the district court could have tailored a remedy to lessen or avoid the potential for prejudice in this case . . . we see no reason why the . . . West Virginia [court] will not provide an adequate remedy.Id. at 441-442. The court concluded that the Ohio plaintiffs were necessary and indispensable parties to the Petition to Compel and their joinder mandated by Rule 19. Id. at 442. Because their joinder destroyed complete diversity, the district court lacked subject matter jurisdiction. Id.
Like Owens-Illinois, permitting this suit to continue in both the state and federal courts would likely subject parties to inconsistent legal obligations in a manner prohibited by Rule 19(a)(2)(ii). Both courts would be asked to make determinations on the validity, interpretation and application of the arbitration agreements. The high potential for whipsawing indicates a likelihood that the parties would be prejudiced. The arbitration clauses of the agreements state that an award may be entered "in any court of competent jurisdiction." The state court can give arbitration agreements full effect and the state court has jurisdiction over all the parties. This Court sees no reason why the Ohio court could not or would not provide an adequate remedy to all parties.
CONCLUSION
As a practical matter, Richard Wilhelm has an interest relating to the subject of this action and is so situated that his absence would likely leave parties subject to risk of incurring inconsistent obligations. The Court concludes in equity and good conscience that the Petition should be dismissed because Wilhelm is indispensable.
Based on the foregoing, Respondent's Motion to Dismiss (doc. no. 8) is GRANTED and Petitioner's Motions for Arbitration (doc. nos. 4 and 9) and Motion to Compel (doc. no. 11) are DENIED. This case is DISMISSED WITHOUT PREJUDICE for lack of subject matter jurisdiction and TERMINATED on the docket of this Court at petitioner's cost.
IT IS SO ORDERED.