District Council 16 International Union of Painters and Allied Trades, Painters Local No.3 v. LML Enterprises, Inc

Filing 22

ORDER ADOPTING AND MODIFYING REPORT AND RECOMMENDATION GRANTING PETITIONER'S MOTION TO COMPEL ARBITRATION; STAYING ACTION PENDING ARBITRATION; ADMINISTRATIVELY CLOSING CASE (Illston, Susan) (Filed on 7/18/2013)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

NORTHERN DISTRICT OF CALIFORNIA

8
9
United States District Court
For the Northern District of California

10

DISTRICT COUNCIL 16 INTERNATIONAL
UNION OF PAINTERS AND ALLIED
TRADES, PAINTERS LOCAL NO. 3,

11
12
13
14

Petitioner,
v.

No. C 13-565 SI
ORDER ADOPTING AND MODIFYING
REPORT AND RECOMMENDATION
GRANTING PETITIONER’S MOTION
TO COMPEL ARBITRATION; STAYING
ACTION PENDING ARBITRATION;
ADMINISTRATIVELY CLOSING CASE

LML ENTERPRISES, INC.,
Respondent.
/

15
16

On June 14, 2013, Magistrate Judge Cousins issued a report and recommendation (the “Report”)

17

in this case. The Report recommends granting petitioner’s motion to compel arbitration, denying

18

without prejudice petitioner’s request for attorney’s fees, and dismissing this action without prejudice.

19

Although respondent was served with the petition to compel arbitration and summons, respondent failed

20

to answer or otherwise respond.

21

The Report issued on June 14, 2013. Pursuant to 28 U.S.C. § 636(b)(1), either party had

22

fourteen days from service of the Report to file written objections. See also Fed. R. Civ. P. 72(b). The

23

case was reassigned to the undersigned judge on June 14, 2013. On June 28, 2013, petitioner filed an

24

objection to the Report. Petitioner objects to Judge Cousins’ recommendation that this case be

25

dismissed, and instead requests that the Court stay this action pending arbitration.

26

The Court has reviewed the Report and the docket in this case. The Court agrees with Judge

27

Cousins’ analysis regarding compelling arbitration and denying the request for attorney’s fees without

28

prejudice. With respect to petitioner’s request for a stay as opposed to dismissal, where a dispute is

1

subject to arbitration under the terms of a written agreement, the Ninth Circuit has held that courts have

2

discretion under 9 U.S.C. § 3 to dismiss or stay claims that are subject to an arbitration agreement. See

3

Sparling v. Hoffman Constr. Co., 864 F.2d 635, 638 (9th Cir. 1988). The Court finds it appropriate to

4

stay this action pending arbitration, and accordingly ADOPTS and MODIFIES the Report as follows:

5

the Court GRANTS petitioner’s motion to compel arbitration, DENIES WITHOUT PREJUDICE the

6

request for attorney’s fees, and STAYS this action pending arbitration. The Clerk shall administratively

7

close this case.

8

This order resolves Docket Nos. 4 & 18.

9
United States District Court
For the Northern District of California

10

IT IS SO ORDERED.

11
12

DATED: July 18, 2013

_______________________
SUSAN ILLSTON
United States District Judge

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

2