Falconpoint Unlimited, LLC v. Senn et al

Filing 61

ORDER FOR ADDITIONAL BRIEFING RE: ARBITRATION. Signed by Judge Nathanael Cousins on 8/12/2015. (lmh, COURT STAFF) (Filed on 8/12/2015)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 10 FALCONPOINT UNLIMITED, LLC, Plaintiff, United States District Court Northern District of California 11 ORDER FOR ADDITIONAL BRIEFING RE: ARBITRATION v. 12 13 Case No.14-cv-02342-NC KEVIN J. SENN, et al., Defendants. 14 15 16 The Court has reviewed the parties’ briefing on Falconpoint’s motion for partial 17 summary judgment. Paragraph 10 of the contract between the parties provides that any 18 dispute between the parties as to whether there has been a breach of the contract “will be 19 submitted to binding commercial arbitration.” “A bedrock principle of California contract 20 law is that he who seeks to enforce a contract must show that he has complied with the 21 conditions and agreements of the contract on his part to be performed.” Cox v. Ocean 22 View Hotel Corp., 533 F.3d 1114, 1121-22 (9th Cir. 2008); Brennan v. Opus Bank, et. al., 23 No. 13-35580, *11 (9th Cir. Aug. 11, 2015); see also Local 659, I.A.T.S.E. v. Color Corp. 24 of Am., 47 Cal.2d 189, 302 P.2d 294, 299 (1956) (En Banc). The parties have not 25 addressed this contract provision in their summary judgment papers, or at any other time 26 during the litigation. The Court finds the arbitration clause relevant to the disposition of 27 the summary judgment motion. 28 / Case No. 14-cv-02342-NC 1 Therefore, Falconpoint must explain why the Court should not find that it has 2 repudiated the contract by filing suit in federal court and not submitting the breach claims 3 to arbitration, thereby violating the binding arbitration clause. If Falconpoint believes that 4 there has been a waiver of the arbitration clause, it must present evidence to the Court of 5 such waiver. 6 7 Falconpoint must provide the additional briefing by August 19, 2015. Defendants may respond by August 26, 2015. 8 9 IT IS SO ORDERED. 10 United States District Court Northern District of California 11 Dated: August 12, 2015 12 _____________________________________ NATHANAEL M. COUSINS United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case No. 14-cv-02342-NC 2

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