Doctor's Associates, Inc. v. Repins

Filing 18

RULING: For the reasons set forth herein, the 1 Petition to Compel Arbitration is GRANTED IN PART AND DENIED IN PART and the 3 Motion for Permanent Injunction is DENIED. Repins is ordered to arbitrate the claims that he raised or could have raised against DAI or any of its affiliates, including but not limited to SRE, in an arbitration against DAI in the manner provided by the Franchise Agreement. The case is closed.. Signed by Judge Janet C. Hall on 5/4/2017. (Pipech, L.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
DOCTOR’S ASSOCIATES, INC.,
Plaintiff,

:
:
:
:
:
:
:
:

v.
IVARS REPINS,
Defendant,

CIVIL ACTION NO.
17-CV-323 (JCH)

MAY 4, 2017

RULING ON PETITION TO COMPEL ARBITRATION (DOC. NO. 1) AND MOTION
FOR PERMANENT INJUNCTION (DOC. NO. 3)
I.

INTRODUCTION
The plaintiff, Doctor’s Associates, Inc. (“DAI” or “Subway”), has filed a Petition to

Compel Arbitration (Doc. No. 1) and a Motion for Permanent Injunction (Doc. No. 3),
against the defendant, Ivars Repins (“Repins”). Repins, pro se, opposes both the
Petition and the Motion. See Answer/Response (in pages 1–5 of Doc. No. 17) ¶¶ 25–
27. Repins argues that (1) “the arbitration agreement is procedurally or substantively
unconscionable,” (2) DAI’s “actions directed against [Repins] are a breach of [DAI’s]
duty of good faith and fair dealings,” (3) DAI “or its affiliates have waived any right to
complain about litigating [the] dispute in Milwaukee County Circuit Court,” (4) the
present suit “should be barred by the doctrine of laches,” (5) the court lacks diversity
jurisdiction, (6) Repins does “not presently have any pending dispute in litigation with
[DAI] requiring this court’s involvement,” (7) DAI’s “actions directed against” Repins “are
unconscionable,” and (8) if arbitration does occur, the arbitration should occur in
Milwaukee, Wisconsin. Id. ¶¶ 25–27.
For the reasons stated below, DAI’s Petition to Compel Arbitration is granted to
the extent that it seeks to compel arbitration but denied to the extent that it asks this
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court to award attorney’s fees and costs. DAI’s Motion for Permanent Injunction is
denied.
II.

BACKGROUND
On May 13, 2002, the parties signed Franchise Agreement Number 903 (Doc.

No. 1-1) for the operation of a Subway restaurant. See Franchise Agreement No. 903.
On September 22, 2010, they signed Franchise Agreement Number 25752 (Doc. No. 12). See Franchise Agreement No. 25752. Franchise Agreement Number 25752 states
that it “has revised provisions regarding [topics including] dispute resolution,” and that
Repins “agree[s] to accept the provisions set forth in [sections including] Paragraph[ ]
10” in Franchise Agreement Number 25752 “to the amendment of all of [Repins’s] other
existing Franchise Agreements with [DAI] to include these provisions.” Id. ¶ 14.
Paragraph 10 of Franchise Agreement Number 25752 discusses arbitration. See
Id. ¶ 10. The paragraph states as follows:
Any dispute, controversy or claim arising out of or relating to
this Agreement or the breach thereof shall be settled by
arbitration. . . .
The parties agree that Bridgeport, Connecticut shall be the
site for all arbitration hearings held under this Paragraph 10
....
If you breach the terms of your Sublease, the Sublessor,
whether us or our designee, may exercise its rights under the
Sublease, including your eviction from the franchised location.
Any action brought by the Sublessor to enforce the Sublease
(which provides that a breach of the Franchise Agreement is
a breach of the Sublease), is not to be construed as an
arbitrable dispute. . . .
You agree that our Affiliates, shareholders, directors, officers,
employees, agents and representatives, and their affiliates,
shall not be liable nor named as a party in any arbitration or
litigation proceeding commenced by you where the claim
arises out of or relates to this Agreement. You further agree
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that the foregoing parties are intended beneficiaries of the
arbitration clause; and that all claims against them that arise
out of or relate to this Agreement must be resolved with us
through arbitration . . . .
Any disputes concerning the enforceability or scope of the
arbitration clause shall be resolved pursuant to the Federal
Arbitration Act, 9 U.S.C. § et seq. (“FAA”), and the parties
agree that the FAA preempts any state law restrictions
(including the site of the arbitration) on the enforcement of the
arbitration clause in this Agreement. . . . If, prior to the
Arbitrator’s final decision, either we or you commence an
action in any court of a claim that arises out of or relates to
this Agreement (except for the purpose of enforcing the
arbitration clause or as otherwise permitted by this
Agreement), that party will be responsible for the other party’s
expenses of enforcing the arbitration clause, including court
costs, arbitration filing fees and other costs and attorney’s
fees.
If a party [ ] commences action in any court, except to compel
arbitration, or except as specifically permitted under this
agreement, prior to an arbitrator’s final decision . . . then that
party is in default of this Agreement. . . . The defaulting party
will be responsible for all expenses incurred by the other party,
or the improperly named person or entities, including lawyers’
fees.
Id. ¶ 10.
On August 12, 2015, a Wisconsin court granted a judgment of eviction to Subway
Real Estate, LLC (“SRE”) against Repins, in a case entitled Subway Real Estate, LLC,
v. Repins, Case No. 15SC017457 (“the Wisconsin Lawsuit”). See Wisconsin Court
Order (Doc. No. 1-3) at 2. SRE is DAI’s leasing affiliate. See Pet. to Compel ¶ 10;
Answer/Response ¶ 10.
Also on August 12, 2015, Repins, via counsel, filed a document in the Wisconsin
Lawsuit, in which Repins asserted what he referred to as “affirmative defenses/claims.”
See Wisconsin Lawsuit Defenses/Claims Filing (Doc. No. 1-4). Repins “affirmatively
state[d]” that DAI “is an indispensable party which must be joined in” the Wisconsin
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Lawsuit. Wisconsin Defenses/Claims Filing ¶ 1. Repins also argued that SRE, by filing
the Wisconsin Lawsuit, “has waived the arbitration provision of the agreements
between” Repins, SRE, and DAI. Id. ¶ 5. On October 2, 2015, Repins, via counsel,
emailed DAI that Repins “intends to join [DAI] into the [Wisconsin Lawsuit] likely as an
involuntary plaintiff.” See Email Exchange (Doc. No. 1-6) at 2.
In response, DAI filed its first lawsuit against Repins in this court (“the First
Federal Lawsuit”), seeking to compel arbitration. See Doctor’s Associates, Inc. v.
Repins, Case No. 3:15-cv-1450 (JCH). In a Memorandum in Support of a Motion to
Dismiss the First Federal Lawsuit (Case No. 15-cv-1450, Doc. No. 14-1), Repins stated
that he “ha[d]n’t decided whether to join [DAI] in [the Wisconsin Lawsuit].” Mem. in
Supp. of Mot. to Dismiss First Federal Lawsuit at 2. Thereafter, DAI filed a Notice of
Voluntary Dismissal (Case No. 15-cv-1450, Doc. No. 16) in the First Federal Lawsuit.
DAI represents that it filed this Notice “[i]n light of, and in reliance on, Mr. Repins’s
representation[ ]” that he had not decided whether to join DAI in the Wisconsin Lawsuit.”
Notice of Voluntary Dismissal at 4.
On February 13, 2017, Repins filed a document entitled “Witness List and
Itemization of Damages” (Doc. No. 1-7) in the Wisconsin Lawsuit. Repins lists
witnesses who would testify as to topics involving both SRE and DAI. See Witness List
and Itemization of Damages at 2. Under the section entitled “Itemization of Damages,”
Repins lists (1) “losses associated with the lost sale of [Repins’s] business and
restaurant equipment . . . . $60,000 plus interest,” (2) Repins’s, or Repins’s company’s,
“lost future profits resulting from the forced closing of his business due to it being made
unprofitable but for the leasing of adjacent Subway Restaurants by [SRE]. . . . $300–

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450,000 plus interest,” (3) “Loss of [Repins’s or Repins’s company’s] investment
improvements made to the leased space. $155,000, plus interest,” (4) “Damages
associated with [SRE’s] infliction of emotional distress, including expense for
counseling, out-of-pocket expenses for medication, collectively approx. $4,000, plus
pain & suffering,” and (5) costs and attorney’s fees. Id. at 3.
On February 23, 2017, DAI brought the present lawsuit.
III.

DISCUSSION
A.

Subject Matter Jurisdiction

The court addresses Repins’s argument that the court lacks diversity jurisdiction
first, see Answer/Response ¶ 27, as this argument implicates the court’s subject matter
jurisdiction, see Pet. to Compel ¶ 4 (asserting diversity as sole basis for jurisdiction);
see also Southland Corp. v. Keating, 465 U.S. 1, 16 n.9 (1984) (“[T]he Federal
Arbitration Act . . . does not create any independent federal-question jurisdiction.”).
This court has diversity jurisdiction in “all civil actions where the matter in
controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is
between[ ] citizens of different States.” 28 U.S.C. § 1332(a)(1). As Repins admits, see
Answer/Response ¶¶ 2–3, DAI “is a Florida corporation with a principal place of
business in Connecticut,” Pet. to Compel ¶ 2, and “Repins is a resident of Wisconsin,”
id. ¶ 3. The action is thus between citizens of different states. The question for the
court is therefore whether the amount in controversy requirement is met.
“The amount in controversy in a petition to compel arbitration . . . is determined
by the underlying cause of action that would be arbitrated.” Karsner v. Lothian, 532
F.3d 876, 883 (D.C. Cir. 2008) (internal quotation marks and brackets omitted); Doctor’s
Assocs., Inc. v. Hamilton, 150 F.3d 157, 160 (2d Cir. 1998); Northwestern National Ins.
5

Co. v. Insco, Ltd., 866 F. Supp. 2d 214, 219 n.37 (S.D.N.Y. 2011). DAI seeks to compel
Repins “to arbitrate the claims that he raised or could have raised against DAI or any of
its affiliates, including [ ] SRE.” Pet. to Compel Arbitration ¶ 25. The underlying cause
of action that would be arbitrated if the court were to grant DAI’s Petition to Compel
Arbitration thus includes, at a minimum, all Repins’s claims for damages in the
Wisconsin Lawsuit. The amount of damages Repins seeks in the Wisconsin Lawsuit is
far greater than $75,000. See Witness List and Itemization of Damages at 3 (seeking
over $500,000 in total). The amount in controversy requirement is therefore met, and
this court has diversity jurisdiction.
Repins argues that the amount in controversy requirement is not met because
the amount of rent on which SRE claims Repins defaulted is less than $75,000. See
Def.’s Mem. (in pages 6–13 of Doc. No. 17) at 9. This argument is unavailing. To the
extent that SRE’s claims against Repins may have a total value below $75,000, that fact
would not disturb this court’s determination that the amount-in-controversy here
exceeds $75,000, because DAI seeks to compel arbitration of the claims asserted by
Repins. Next, Repins speculates that his counterclaims in the Wisconsin Lawsuit “will
likely be limited to less than $75,000” because Repins is “on the verge of filing
bankruptcy.” Id. at 9. The court does not see any connection between Repins’s plans
to file for bankruptcy and the amount of the claims Repins asserts in the Wisconsin
Lawsuit. Finally, Repins asserts that, “even though I’ve made a damage claim which is
greater, if you look at the facts, I’ll probably not be able to prove much more than
$50,000.” Id. at 9. This is a concerning argument, suggesting that Repins either (1)
was disingenuous with the Wisconsin state court when he asserted claims in excess of

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$500,000 in the Wisconsin Lawsuit, or else (2) is being disingenuous with this court
presently. Moreover, Repins does not provide the court with “the facts” at which one
must “look” to see that his claims are in fact worth little more than $50,000. Id. at 9.
Repins’s assertion, which he fails to support, that he will “probably not be able to prove
much more than $50,000,” id. at 9, is insufficient to disturb this court’s conclusion that,
based on Repins asserting claims in excess of $500,000 in the Wisconsin Lawsuit, see
Witness List and Itemization of Damages at 3, the amount-in-controversy requirement is
met. The court concludes that diversity jurisdiction exists.
B.

Compelling Arbitration

The FAA evinces a “strong federal policy favoring arbitration as an alternative
means of dispute resolution.” E.g., Benihana, Inc. v. Benihana of Tokyo, LLC, 784 F.3d
887, 900 (2d Cir. 2015); Chelsea Square Textiles, Inc. v. Bombay Dying and
Manufacturing Co., Ltd., 189 F.3d 289, 294 (2d Cir. 1999)). The FAA provides that
written arbitration provisions “shall be 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; see also AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2011).
The FAA “requires courts to enforce privately negotiated agreements to arbitrate
. . . in accordance with their terms.” Volt Info. Scis., Inc. v. Bd. of Tr. of Leland Stanford
Junior Univ., 489 U.S. 468, 478 (1989). Thus, a court must compel arbitration, see 9
U.S.C. § 4, where (1) the dispute is arbitrable, pursuant to a valid agreement to
arbitrate, and (2) “one party to the agreement has failed, neglected or refused to
arbitrate,” LAIF X SPRL v. Axtel, S.A. de C.V., 390 F.3d 194, 198 (2d Cir. 2004).

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1.

Arbitrability

The question of whether a dispute is arbitrable depends on “(1) whether the
parties have entered into a valid agreement to arbitrate, and, if so, (2) whether the
dispute at issue comes within the scope of the arbitration agreement.” In re Am. Exp.
Fin. Advisors Sec. Litig., 672 F.3d 113, 128 (2d Cir. 2011). In the absence of any
agreement dictating otherwise, a court would typically decide these questions of
arbitrability, because “the general presumption is that the issue of arbitrability should be
resolved by the courts.” Alliance Bernstein Inv. Research & Mgmt., Inc. v. Schaffran,
445 F.3d 121, 125 (2d Cir. 2006).
However, “the issue of arbitrability may [ ] be referred to the arbitrator if there is
clear and unmistakable evidence from the arbitration agreement, as construed by the
relevant state law, that the parties intended that the question of arbitrability shall be
decided by the arbitrator.” Contec Corp. v. Remote Sol., Co., 398 F.3d 205, 208 (2d
Cir. 2005) (internal quotation marks omitted); see also Alliance Bernstein, 445 F.3d at
125. As the Supreme Court has explained, a
delegation provision is an agreement to arbitrate threshold
issues concerning the arbitration agreement. [The Supreme
Court has] recognized that parties can agree to arbitrate
gateway questions of arbitrability, such as whether the parties
have agreed to arbitrate or whether their agreement covers a
particular controversy. . . . An agreement to arbitrate a
gateway issue is simply an additional, antecedent agreement
the party seeking arbitration asks the federal court to enforce,
and the FAA operates on this additional arbitration agreement
just as it does on any other. The additional agreement is valid
under § 2 ‘save upon such grounds as exist at law or in equity
for the revocation of any contract,’ and federal courts can
enforce the agreement by . . . compelling arbitration under §
4.
Rent-A-Center, W., Inc. v. Jackson, 561 U.S. 63, 68–70 (2010) (internal quotation
8

marks and citations omitted).
Here, the parties have agreed that arbitrability is an issue for the arbitrator, in a
delegation provision. See Franchise Agreement No. 25752 ¶ 10(f). The delegation
provision states that, “[a]ny disputes concerning the enforceability or scope of the
arbitration clause shall be resolved pursuant to the [FAA], and the parties agree that the
FAA preempts any state law restrictions (including the site of the arbitration) on the
enforcement of the arbitration clause in this Agreement.” Id. ¶ 10(f).
Repins contests the validity of the arbitration clause, arguing that the clause “is
procedurally or substantively unconscionable,” and that, if arbitration does occur, the
arbitration should occur in Milwaukee, Wisconsin. Answer/Response ¶¶ 25–27. These
arguments regard “gateway” or “threshold” issues of “arbitrability.” Rent-A-Center, 561
U.S. 63, 68–70 (2010) (treating claim that arbitration provision is unconscionable as
gateway issue effectively delegated to arbitrator by delegation clause). The court
makes no ruling as to whether the arbitration clause is unconscionable, nor as to
whether it was improper for the arbitration clause to select Bridgeport, Connecticut as
the seat of arbitration, rather than Milwaukee, Wisconsin. See Answer/Response ¶ 27;
Franchise Agreement No. 25752 ¶ 10(b). Rather, the court determines that “there is
clear and unmistakable evidence from the arbitration agreement . . . that the parties
intended that the question of arbitrability shall be decided by the arbitrator.” Contec,
398 F.3d at 208; see also Franchise Agreement No. 25752 ¶ 10(f). Confronted with
delegation provisions identical to that here, this court has previously found “clear and
unmistakable evidence that the [ ] franchise agreement’s Arbitration Clause delegates
the question of arbitrability to the arbitrator.” Doctor’s Assocs., Inc. v. Pahwa (“Pahwa”),

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No. 3:16-CV-446 (JCH), 2016 WL 7635748, at *19 (D. Conn. Nov. 3, 2016), report and
recommendation adopted 2016 WL 7410782 (D. Conn. Dec. 2, 2016); Doctor’s Assocs.,
Inc. v. Tripathi (“Tripathi”), No. 3:16-CV-562 (JCH), 2016 WL 7634464, at *17 (D. Conn.
Nov. 3, 2016), report and recommendation adopted, 2016 WL 7406725 (D. Conn. Dec.
2, 2016). The court finds that the parties have effectively delegated the question of
arbitrability—including “whether the parties have agreed to arbitrate or whether their
agreement covers a particular controversy”—to the arbitrator. Rent-A-Center, 561 U.S.
at 68–69. It is thus proper for the court to compel arbitration if Repins has refused to
arbitrate. See 9 U.S.C. § 4; LAIF, 390 F.3d at 198. Repins’s arguments as to the
validity or scope of the arbitration clause are properly addressed to the arbitrator.
Repins also argues that DAI’s “actions directed against” Repins “are
unconscionable.” Answer/Response ¶ 27. The court is unaware of any authority,
however, by which the allegation that a party has engaged in “unconscionable” conduct
is a basis upon which to void an arbitration agreement.
2.

Refusal to Arbitrate

Repins has “failed, neglected or refused to arbitrate,” LAIF, 390 F.3d at 198, by
asserting claims for damages against SRE which arise out of the Franchise
Agreements.
According to Repins’s Itemization of Damages in the Wisconsin Lawsuit, Repins
asserts claims against SRE and seeks damages from SRE. See Witness List and
Itemization of Damages at 2. While the Itemization of Damages does not make clear
whether Repins currently asserts any claims against DAI, the parties agree that SRE is
DAI’s leasing affiliate. See Pet. to Compel ¶ 10; Answer/Response ¶ 10. Repins has

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“agree[d]” “that all claims against” DAI’s “[a]ffiliates” “that arise out of or relate to” the
Franchise Agreements “must be resolved with [DAI] through arbitration.” Franchise
Agreement No. 25752 ¶ 10(d). Thus, from the face of the franchise agreements,
Repins appears to have agreed to arbitrate the claims he asserts in the Wisconsin
Lawsuit.
Repins argues that he does “not presently have any pending dispute in litigation
with [DAI] requiring this court’s involvement,” Answer/Response ¶ 27, because DAI “is
not currently a Named Party in the pending [Wisconsin Lawsuit].” Def.’s. Mem. (in
pages 6–13 of Doc. No. 17) at 7. Nonetheless, as discussed above, Repins’s claims
against SRE facially appear to fall under the arbitration clause. That said, it is for the
arbitrator to decide whether the arbitration provision is properly interpreted to include or
exclude Repins’s claims against SRE. See Agreement No. 25752 ¶ 10(f) (“Any
disputes concerning the [ ] scope of the arbitration clause shall be resolved pursuant to
the Federal Arbitration Act.”).
It is true that, “[a]ny action brought by the Sublessor to enforce the Sublease,”
such as the claim brought by SRE in the Wisconsin Lawsuit, “is not to be construed as
an arbitrable dispute.” Id. ¶ 10(c). However, Repins asserts counterclaims in the
Wisconsin Lawsuit, such as intentional infliction of emotional distress, and seeks
damages. See Witness List and Itemization of Damages at 3. These counterclaims for
damages would not appear to fall under the category of an “action brought by the
Sublessor to enforce the Sublease,” in the meaning of the Franchise Agreements.
Franchise Agreement No. 25752 ¶ 10(c). Repins’s claims asserted in the Wisconsin
Lawsuit—whether against SRE or DAI—thus are at least facially covered by the

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arbitration provision. However, it is ultimately for an arbitrator to decide the application
of the “action brought by the Sublessor” provision. Id. ¶ 10(c).
Because the parties have formed what, on its face, appears to be an agreement
to arbitrate claims such as the claims Repins asserted in the Wisconsin Lawsuit,
because an arbitrator must decide whether the parties in fact formed a valid arbitration
agreement covering Repins’s claims, and because Repins has failed to arbitrate his
claims, it is proper for the court to compel arbitration. See 9 U.S.C. § 4.
3.

Waiver, Laches, Good Faith

Repins argues that DAI “or its affiliates have waived any right to complain about
litigating [the] dispute in Milwaukee County Circuit Court,” Answer/Response ¶ 25, by
voluntarily dismissing the First Federal Lawsuit, see Def.’s Mem. at 12, and that the
present suit “should be barred by the doctrine of laches,” Answer/Response ¶ 25.
These arguments are properly addressed to the arbitrator, and not to the court.
“[P]rocedural questions which grow out of the dispute and bear on its final
disposition are presumptively not for the judge, but for an arbitrator, to decide. So, too,
the presumption is that the arbitrator should decide allegations of waiver, delay, or a like
defense to arbitrability.” Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 84,
(2002) (internal quotation marks, brackets, and citation omitted); see also Doctor’s
Assocs., Inc. v. Distajo, 66 F.3d 438, 454 (2d Cir. 1995) (“[T]he defense of waiver is
generally referable to the arbitrators.”). Such procedural defenses to arbitrability include
the doctrine of “laches.” Howsam, 537 U.S. at 85 (internal quotation marks omitted);
see also Trafalgar Shipping Co. v. Int'l Mill. Co., 401 F.2d 568, 571 (2d Cir. 1968) (“[A]ll
questions of delay which relate to issues which the parties have agreed to submit to

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arbitration . . . [must] be resolved by the arbitrators, not the court.”). The court therefore
will not address Repins’s arguments regarding waiver and laches, because these are
arguments for the arbitrator.
Repins also argues that DAI’s “actions directed against [Repins] are a breach of
[DAI’s] duty of good faith and fair dealings.” Answer/Response ¶ 25. Again, this is an
argument for the arbitrator to consider. See Subway Int’l B.V. v. Seistola, No. 3:13-CV1610 (JCH), 2014 WL 9861978, at *2 (D. Conn. Apr. 7, 2014) (“To the extent that the
counterclaims [including breach of the implied covenant of good faith and fair dealing]
concern the Franchise Agreement, they could have been brought before the
arbitrator.”). The court therefore will not decide whether DAI breached a duty of good
faith and fair dealings.
Because the Franchise Agreements, on their face, represent an agreement to
arbitrate claims such as those Repins is pursuing in the Wisconsin Lawsuit, and
because the parties have effectively delegated gateway issues of arbitrability to the
arbitrator, DAI’s Petition to Compel Arbitration is granted to the extent that it seeks to
compel arbitration.
C.

Fees and Costs

DAI also asks this court to direct Repins to “pay all of DAI’s and its affiliates’
expenses, including costs and attorneys’ fees, incurred in connection with compelling
arbitration, including all costs and attorneys’ fees relating to this Petition [to Compel
Arbitration] and the [First Federal Lawsuit], and in connection with the Wisconsin
Litigation.” Pet. to Compel ¶ 25.
The Franchise Agreements state that,

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If, prior to the Arbitrator’s final decision, either we or you
commence an action in any court of a claim that arises out of
or relates to this Agreement (except for the purpose of
enforcing the arbitration clause or as otherwise permitted by
this Agreement), that party will be responsible for the other
party’s expenses of enforcing the arbitration clause, including
court costs, arbitration filing fees and other costs and
attorney’s fees.
If a party [ ] commences action in any court, except to compel
arbitration, or except as specifically permitted under this
agreement, prior to an arbitrator’s final decision . . . then that
party is in default of this Agreement. . . . The defaulting party
will be responsible for all expenses incurred by the other party,
or the improperly named person or entities, including lawyers’
fees.
Franchise Agreement No. 25752 ¶ 10(f–g). Thus, based on the face of the Franchise
Agreements, Repins appears to have agreed to pay the attorney’s fees and costs
associated with the Wisconsin Lawsuit, the First Federal Lawsuit, and the present
lawsuit.
Repins, who is pro se, does not specifically address DAI’s argument as to fees
and costs. See Answer/Response ¶ 25. However, DAI does not cite any authority for
the proposition that a court may award attorney’s fees and costs in a case such as that
at bar. See Pl.’s Mem. (Doc. No. 1-9) at 9 (simply asserting that Repins is responsible
for paying these expenses). As discussed above, this court compels arbitration
pursuant to the Franchise Agreements’ delegation provision, thereby allowing an
arbitrator to decide whether the contract’s arbitration clause is valid and applicable. It is
not for this court to decide whether the contract’s arbitration clause is valid and
applicable. See Franchise Agreement No. 25752 ¶ 10(f) (“Any disputes concerning the
enforceability or scope of the arbitration clause shall be resolved pursuant to the
Federal Arbitration Act.”); see also Contec, 398 F.3d at 208 (“[T]he issue of arbitrability
14

may [ ] be referred to the arbitrator if there is clear and unmistakable evidence from the
arbitration agreement . . . that the parties intended that the question of arbitrability shall
be decided by the arbitrator.”). If the contract’s arbitration clause is determined to be
unenforceable, or inapplicable to the claims that Repins has refused to arbitrate, Repins
will not be required to pay expenses. Therefore, until that initial question is decided by
the arbitrator, this court has no basis upon which to order Repins to pay attorney’s fees
or costs.
DAI’s Petition to Compel Arbitration is denied to the extent that it seeks attorney’s
fees and costs.
D.

Permanent Injunction

DAI asks this court to “enter an injunction restraining Mr. Repins and any other
persons or entities who are in active concert or participation with him from prosecuting
any claims against DAI or its affiliates, including [SRE], that were, are, or could have
been asserted in” the Wisconsin Lawsuit. Mot. for Permanent Injunction (Doc. No. 3).
Repins opposes the Motion. See Answer/Response ¶ 26. For the reasons set forth
below, the court will not grant an injunction at this time.
The Supreme Court has reiterated that,
[a]ccording to well-established principles of equity, a plaintiff
seeking a permanent injunction must satisfy a four-factor test
before a court may grant such relief. A plaintiff must
demonstrate: (1) that it has suffered an irreparable injury; (2)
that remedies available at law, such as monetary damages,
are inadequate to compensate for that injury; (3) that,
considering the balance of hardships between the plaintiff and
defendant, a remedy in equity is warranted; and (4) that the
public interest would not be disserved by a permanent
injunction.
eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006). Additionally, under the
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Anti-Injunction Act, “[a] court of the United States may not grant an injunction to stay
proceedings in a State court except as expressly authorized by Act of Congress, or
where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.” 28
U.S.C. § 2283.
DAI makes no attempt to demonstrate that the four eBay factors are met, instead
arguing only that this case constitutes an exception to the Anti-Injunction Act. See Pl.’s
Mem. at 8–9; see also Mot. for Permanent Injunction (lacking any separate
memorandum in support). With respect to the third and fourth factors, the court finds
that DAI has failed to meet its burden of proving by a preponderance of the evidence
“that, considering the balance of hardships between the plaintiff and defendant, a
remedy in equity is warranted,” and “that the public interest would not be disserved by a
permanent injunction.” eBay, 547 U.S. at 391. At this stage, an arbitrator has not yet
addressed the enforceability or applicability of the arbitration clause. For this court to
permanently enjoin Repins from pursuing his claims in state court would thus be
premature.
DAI cites cases such as Emilio v. Sprint Spectrum, L.P., 315 F. App’x 322 (2d
Cir. 2009); Pahwa, 2016 WL 7635748; Tripathi, 2016 WL 7634464; and Doctor’s
Assocs., Inc. v. Distajo, 944 F. Supp. 1010 (D. Conn. 1996) (Dorsey, J.), aff’d, 107 F.3d
126 (2d Cir. 1997), in support of its argument that an injunction is necessary for this
court to protect or effectuate its judgments, and therefore that an exception to the AntiInjunction Act applies. See Pl.’s Mem. at 8–9. These cases do not persuade the court
that a permanent injunction is appropriate at this stage, based on the facts of this case.
In Emilio, the Second Circuit held that an injunction was proper because a party sought

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a state court injunction forcing the other party to dismiss his federal arbitration claims.
See 315 F. App’x at 325. DAI has provided no evidence that Repins seeks to force DAI
to dismiss its claims here. In Pahwa and Tripathi, this court adopted recommended
rulings granting injunctions where defendants had asked the state court for an order
declaring that DAI would “’never be entitled to a stay of [the state court] matter under [ ]
the Federal Arbitration Act and that [the parties’] arbitration clause [was] unconscionable
and unenforceable.’” Pahwa, 2016 WL 7635748, at *22; Tripathi, 2016 WL 7634464, at
*20. While Repins argues in the Wisconsin Lawsuit that SRE “has waived the
arbitration provision of the” Franchise Agreements, Wisconsin Defenses/Claims Filing ¶
5, DAI has pointed to no evidence that Repins seeks a declaration that DAI would never
be entitled to a stay of the Wisconsin Lawsuit. In the Distajo litigation, a court in this
District ruled that existing preliminary injunctions would remain in effect because they
were “necessary to effectuate the foregoing judgment compelling arbitration.” 944 F.
Supp. at 1023. These preliminary injunctions had been entered because the
defendants there had “clearly manifested their intent to proceed with state court
litigation despite the order of arbitration of their disputes with DAI.” Doctor’s Assocs.,
Inc. v. Distajo, 870 F. Supp. 34, 36 (D. Conn. 1994), aff’d in part, rev’d in part, 66 F.3d
438 (2d Cir. 1995). DAI has not shown that Repins intends to disobey the order that
this court will issue.
Because DAI has failed to demonstrate “that, considering the balance of
hardships between the plaintiff and defendant, a remedy in equity is warranted,” and
“that the public interest would not be disserved by a permanent injunction,” eBay, 547
U.S. at 391, the Motion for Permanent Injunction is denied.

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IV.

CONCLUSION
For the reasons set forth herein, the Petition to Compel Arbitration (Doc. No. 1) is

GRANTED IN PART AND DENIED IN PART and the Motion for Permanent Injunction
is DENIED. Repins is ordered to arbitrate the claims that he raised or could have raised
against DAI or any of its affiliates, including but not limited to SRE, in an arbitration
against DAI in the manner provided by the Franchise Agreement. The case is closed.
SO ORDERED.
Dated at New Haven, Connecticut this 4th day of May, 2017.

/s/ Janet C. Hall
Janet C. Hall
United States District Judge

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