24 Hour Fitness USA Incorporated v. Conlogue

Filing 18

ORDER - Accordingly, IT IS ORDERED DENYING petitioner's petition to compelarbitration. (Doc. 1). The clerk shall enter judgment dismissing this action. Signed by Judge Frederick J Martone on 5/17/12. (LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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24 Hour Fitness USA, Inc.,
Petitioner,

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vs.

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Kevin Conlogue,
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Respondent.
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No. CV 11-02416-PHX-FJM
ORDER

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Respondent filed an arbitration demand with JAMS, a private dispute resolution

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provider, in March 2011. (Doc. 1 at 4). Nevertheless, petitioner filed this petition to compel

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arbitration on December 7, 2011, some 9 months later. (Doc. 1). Respondent was served

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May 7, 2012, and has not yet responded.

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"A party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate

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under a written agreement for arbitration may petition any United States district court . . . for

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an order directing that such arbitration proceed in the manner provided for in such

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agreement." 9 U.S.C. § 4. See, e.g., Jacobs v. USA Track & Field, 374 F.3d 85, 86 (2d Cir.

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2004) (refusal to arbitrate is a prerequisite to compelling arbitration under section 4 of the

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Federal Arbitration Act ("FAA")). If the refusal to perform the agreement is at issue, "the

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court shall hear and determine such issue." 9 U.S.C. § 4. "[Section] 4 of the FAA does not

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confer a right to compel arbitration of any dispute at any time." Volt Information Sciences,

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Inc. v. Board of Trustees of Leland Stanford Junior University, 489 U.S. 468, 474-75, 109

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S. Ct. 1248, 1253 (1989). Respondent has not refused to arbitrate. He "has previously

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demanded arbitration of these claims" in another forum. (Doc. 1 at 2).

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Respondent is bound by the terms of the 2001 Arbitration Agreement, (doc. 1 at 2, 7),

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which provides: "We agree to settle the dispute according to the provisions of the Federal

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Arbitration Act, 9 U.S.C. sections 1-16. All disputes will be resolved by a single Arbitrator.

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The Arbitrator shall be selected by mutual agreement of the parties." (Doc. 2, ex. C at 1).

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Petitioner "requests that the Court compel arbitration in accordance with the terms of the

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Arbitration Policy, in the District of Arizona." (Doc. 1 at 2). But petitioner acknowledges

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that "the Agreement itself is silent on the location of the arbitration hearing." (Doc. 1 at 9).

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Petitioner's argument rests solely on its contention that "[i]t would be absurd" to

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arbitrate anywhere but Arizona (doc. 1 at 9). But petitioner fails to identify a case or statute

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which compels arbitration in this District, despite the lack of a forum selection clause in the

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agreement. Nothing in the contract provides that arbitration must occur in Arizona or in the

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place of respondent's employment.

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Respondent has not refused to arbitrate within the meaning of § 4 of the FAA. The

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Northern District of California has been the center of all the litigation arising out of this

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dispute. It is also the place of petitioner's headquarters. Any action to confirm an arbitration

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award should be heard in the Northern District of California. It thus makes sense to arbitrate

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there.

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Accordingly, IT IS ORDERED DENYING petitioner's petition to compel
arbitration. (Doc. 1). The clerk shall enter judgment dismissing this action.
DATED this 17th day of May, 2012.

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