United States District Court, S.D. Florida
BLOOM UNITED STATES DISTRICT JUDGE
CAUSE is before the Court upon Plaintiffs'
Urgent Verified Motion to Compel Arbitration, ECF No. 
(“Motion to Compel Arbitration”), and
Defendant's Motion to Dismiss or Alternatively Stay
Plaintiffs' Complaint to Compel Arbitration, ECF No.
, (the “Motion to Dismiss”) (collectively
“the Motions”). The Court has carefully reviewed
the Motions, the applicable law, the parties' supporting
and opposing briefs, and is otherwise fully advised of the
record in this case. For the reasons that follow, the Motion
to Compel Arbitration is granted and the Motion to Dismiss is
denied as moot.
February 21, 2018, Plaintiffs, CaringOnDemand, LLC and Avior
Sciences, LLC (collectively “Plaintiffs”) filed
their Complaint in the Southern District of Florida seeking
an order compelling Defendant, Ventive LLC
(“Defendant”), to arbitration in Delray Beach,
Florida. See ECF No. . According to the
Complaint, on October 23, 2017, Plaintiffs and Defendant
entered into a Master Consultant Agreement (“Consultant
Agreement”) in which Defendant would provide consulting
and technical services to Plaintiffs in exchange for a fee
and Plaintiffs would be the sole owner of the intellectual
property Defendant created. Id. at ¶ 1. A few
months later, a dispute arose between the parties involving
performance under the Consultant Agreement. Id. at
¶¶ 26-30. On February 16, 2018, Plaintiffs sent a
written notice to Defendant in which they demanded
arbitration of such disputes in Delray Beach, Florida.
Id. at ¶¶ 3, 13. Plaintiffs made this
demand pursuant to the arbitration provision contained in
Section 13 of the Consultant Agreement. ECF No. [1-3].
Defendant allegedly did not comply with the arbitration
provision and Plaintiffs' written demand for arbitration.
Id. at ¶ 4. As a result, five days later,
Plaintiffs filed their Complaint in this venue asserting
violations of the Consultant Agreement and demanding
arbitration in Delray Beach. Id.
after the Complaint was filed in this action, Defendant filed
its own Petition to Compel Arbitration, Stay Arbitration and
for Appointment of Mediator against Plaintiffs in the
District Court of the Fourth Judicial District of the State
of Idaho in and for the County of Ada, No. CV01-18-03619.
See ECF No. [5-1] (“the Idaho action”).
On March 13, 2018, Plaintiffs removed the Idaho action to the
District Court of Idaho, No. 18-cv-00120-CWD. See
ECF No. [21-4]. Thereafter, on May 4, 2018, the assigned
magistrate judge in the Idaho action, the Honorable Candy W.
Dale, stayed those proceedings pending this Court's
ruling on the Motions. See ECF No. [45-4].
meantime, in this action, Plaintiffs filed the Motion to
Compel Arbitration seeking an “urgent” ruling
from this Court as to the arbitrability of the dispute in
Delray Beach, Florida. See ECF No. . Defendant
filed a Response agreeing that the disputed issues were
subject to arbitration but contesting Plaintiffs'
position that the Consultant Agreement requires arbitration
in Delray Beach. See ECF No. . In support of
its position, Defendant argues that Plaintiffs' claim
truly involves a dispute over compensation under Section 5 of
the Consultant Agreement, not a dispute over intellectual
property rights under Section 2. Id. Because the
arbitration clause requires arbitration in Boise when
disputes solely involve compensation under Section 5,
Defendant argues that arbitration in Delray Beach is
improper. Id. Alternatively, Defendant states that,
while this lawsuit was filed first, it was filed in bad faith
and in anticipation of Defendant's own lawsuit.
Id. For that reason, it asks the Court to stay this
action and allow the issues to be decided in the District
Court of Idaho. Id. Plaintiff thereafter filed a
Reply and Defendant was given leave of Court to file a
Sur-reply. See ECF Nos.  and .
the parties were briefing the Motion to Compel Arbitration,
Defendant separately filed a Motion to Dismiss, challenging
whether Plaintiffs' chosen venue for this lawsuit is
proper and alternatively seeking a stay of these proceedings
to allow the District Court of Idaho to decide the
appropriate arbitration venue. See ECF No. . In
the briefing that followed, the parties vehemently contested
matters of venue, Avior Sciences' corporate standing in
Florida, and the indispensability of a non-party Caring
People. See ECF Nos. , , and .
Plaintiffs also filed two Requests for Judicial Notice.
See ECF Nos.  and . All issues are now ripe for
Federal Arbitration Act (“FAA”) provides that
pre-dispute agreements to arbitrate “evidencing a
transaction involving commerce” are “valid,
irrevocable, and enforceable save upon such grounds as exist
at law or in equity for the revocation of any
contract.” 9 U.S.C. § 2. The FAA reflects “a
liberal federal policy favoring arbitration.”
AT&T Mobility LLC v. Concepcion, 563 U.S. 333,
339 (2011). Section 3 of the FAA further states:
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. § 3.
both federal and Florida law, there are three factors for the
court to consider in determining a party's right to
arbitrate: (1) a written agreement exists between the parties
containing an arbitration clause; (2) an arbitrable issue
exists; and (3) the right to arbitration has not been
waived.” Sims v. Clarendon Nat. Ins. Co., 336
F.Supp.2d 1311, 1326 (S.D. Fla. 2004) (citing Marine
Envtl. Partners, Inc. v. Johnson, 863 So.2d 423, 426
(Fla. 4th DCA 2003) and Seifert v. U.S. Home Corp.,
750 So.2d 633 (Fla. 1999)).
with a facially valid arbitration agreement, the burden is on
the party opposing arbitration to demonstrate that the
agreement is invalid or the issue is otherwise
non-arbitrable. Green Tree Fin. Corp.-Alabama v.
Randolph, 531 U.S. 79, 92 (2000) (“[T]he party
seeking to avoid arbitration bears the burden of establishing
that Congress intended to preclude arbitration of the
statutory claims at issue.”); In re Managed Care
Litig., No. 00-1334-MD, 2009 WL 856321, at *3 (S.D. Fla.
Mar. 30, 2009) (“It is the burden of the party
challenging a facially valid arbitration agreement to
demonstrate that the agreement is in fact
unconscionable.”). “By its terms, the [FAA]
leaves no room for the exercise of discretion by a district
court, but instead mandates that district courts
shall direct the parties to proceed to arbitration
on issues as to which an arbitration agreement has been
signed.” Dean Witter Reynolds, Inc. v. Byrd,
470 U.S. 213, 213 (1985) (emphasis in original). Thus, if the
aforementioned criteria are met, the Court is required to
issue an order compelling arbitration. John B. Goodman
Ltd. P'ship v. THF Const., Inc., 321 F.3d 1094, 1095
(11th Cir. 2003) (“Under the FAA, 9 U.S.C. § 1
et seq., a district court must grant a motion to
compel arbitration if it is satisfied that the parties
actually agreed to arbitrate the dispute.”);
Hemispherx Biopharma, Inc. v. Johannesburg Consol.
Invs., 553 F.3d 1351, 1366 (11th Cir. 2008) (“The
role of the courts is to rigorously enforce agreements to
arbitrate.”) (citation omitted).