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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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 24 Hour Fitness USA, Inc., Petitioner, 10 11 vs. 12 Kevin Conlogue, 13 Respondent. 14 ) ) ) ) ) ) ) ) ) ) ) ) No. CV 11-02416-PHX-FJM ORDER 15 16 Respondent filed an arbitration demand with JAMS, a private dispute resolution 17 provider, in March 2011. (Doc. 1 at 4). Nevertheless, petitioner filed this petition to compel 18 arbitration on December 7, 2011, some 9 months later. (Doc. 1). Respondent was served 19 May 7, 2012, and has not yet responded. 20 "A party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate 21 under a written agreement for arbitration may petition any United States district court . . . for 22 an order directing that such arbitration proceed in the manner provided for in such 23 agreement." 9 U.S.C. § 4. See, e.g., Jacobs v. USA Track & Field, 374 F.3d 85, 86 (2d Cir. 24 2004) (refusal to arbitrate is a prerequisite to compelling arbitration under section 4 of the 25 Federal Arbitration Act ("FAA")). If the refusal to perform the agreement is at issue, "the 26 court shall hear and determine such issue." 9 U.S.C. § 4. "[Section] 4 of the FAA does not 27 confer a right to compel arbitration of any dispute at any time." Volt Information Sciences, 28 Inc. v. Board of Trustees of Leland Stanford Junior University, 489 U.S. 468, 474-75, 109 1 S. Ct. 1248, 1253 (1989). Respondent has not refused to arbitrate. He "has previously 2 demanded arbitration of these claims" in another forum. (Doc. 1 at 2). 3 Respondent is bound by the terms of the 2001 Arbitration Agreement, (doc. 1 at 2, 7), 4 which provides: "We agree to settle the dispute according to the provisions of the Federal 5 Arbitration Act, 9 U.S.C. sections 1-16. All disputes will be resolved by a single Arbitrator. 6 The Arbitrator shall be selected by mutual agreement of the parties." (Doc. 2, ex. C at 1). 7 Petitioner "requests that the Court compel arbitration in accordance with the terms of the 8 Arbitration Policy, in the District of Arizona." (Doc. 1 at 2). But petitioner acknowledges 9 that "the Agreement itself is silent on the location of the arbitration hearing." (Doc. 1 at 9). 10 Petitioner's argument rests solely on its contention that "[i]t would be absurd" to 11 arbitrate anywhere but Arizona (doc. 1 at 9). But petitioner fails to identify a case or statute 12 which compels arbitration in this District, despite the lack of a forum selection clause in the 13 agreement. Nothing in the contract provides that arbitration must occur in Arizona or in the 14 place of respondent's employment. 15 Respondent has not refused to arbitrate within the meaning of § 4 of the FAA. The 16 Northern District of California has been the center of all the litigation arising out of this 17 dispute. It is also the place of petitioner's headquarters. Any action to confirm an arbitration 18 award should be heard in the Northern District of California. It thus makes sense to arbitrate 19 there. 20 21 22 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. 23 24 25 26 27 28 -2-

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