Kroma Makeup EU, LLC v. Boldface Licensing + Branding, Inc. et al

Filing 86

ORDER granting 78 Defendants' Motion to Stay Proceedings Pending Appeal as to Counts III, IV, and V of the Complaint; denying as moot 85 the parties' Joint Motion for Extension of Time to File Dispositive and Daubert Motions. Signed by Judge Paul G. Byron on 12/1/2015. (SEN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
KROMA MAKEUP EU, LLC,
Plaintiff,
v.

Case No: 6:14-cv-1551-Orl-40GJK

BOLDFACE LICENSING +
BRANDING, INC., et al.,
Defendants.
ORDER
This cause comes before the Court on Defendants’, Kim Kardashian, Kourtney
Kardashian, and Khloe Kardashian, Motion to Stay Proceedings Pending Appeal as to
Counts III, IV, and V of the Complaint and Memorandum of Law (Doc. 78), filed
November 10, 2015. Plaintiff responded in opposition on November 25, 2015 (Doc. 84).
Upon consideration, the Court grants Defendants’ motion to stay.
Defendants have filed an interlocutory appeal from the Court’s November 9, 2015
Order denying their motion to compel the arbitration of Counts III, IV, and V of the
Complaint. Defendants submit that they have a colorable basis for appeal and therefore
request the Court to stay Counts III, IV, and V pending the outcome of their appeal.
Consistent with strong federal policy favoring the resolution of disputes through
arbitration whenever permitted, the Federal Arbitration Act authorizes immediate appeal
from an order denying a party’s motion to compel arbitration. 9 U.S.C. § 16(a)(1). The
Eleventh Circuit advises that district courts should stay the litigation when a party appeals
from an order denying a motion to compel arbitration so long as the appeal is not frivolous.
Blinco v. Green Tree Servicing, LLC, 366 F.3d 1249, 1252 (11th Cir. 2004) (per curiam);

1

see also Bahena v. Am. Voyager Indem. Ins. Co., No. 8:07-cv-1057-T-24 MSS, 2008 WL
874851, at *1 (M.D. Fla. Mar. 27, 2008). An appeal is not frivolous where “there is some
possible validity” to the arguments raised by the appellant. Baron v. Best Buy Co., Inc.,
79 F. Supp. 2d 1350, 1354 (S.D. Fla. 1999) (emphasis omitted). Conversely, an appeal
is frivolous where there is no legal or factual basis to support the appellant’s position or
the appeal is sought for some improper purpose. In re Friedman’s, Inc., No. 05-40129,
2007 WL 7647111, at *1 (Bankr. S.D. Ga. June 26, 2007).
In this case, Defendants appeal the Court’s determination that Defendants cannot
compel the arbitration of Counts III, IV, and V under an arbitration agreement contained
in a contract to which Defendants are not signatories. The Court concluded that the basis
of Plaintiff’s claims against Defendants were insufficient to invoke the doctrine of equitable
estoppel as an exception to the general rule that non-signatories cannot compel
arbitration under an agreement to which they are not parties. However, Defendants differ,
arguing both in this Court and on appeal that Plaintiff’s standing to sue necessarily arises
out of the contract at issue. (See Doc. 78, pp. 6–9). While the Court disagrees that this
fact alone warrants application of equitable estoppel to compel arbitration, the Court does
not find the argument wholly without merit. The Court similarly does not find, based on
the current record, that Defendants pursue their appeal for an improper purpose.
Accordingly, it is ORDERED AND ADJUDGED as follows:
1. Defendants’ Motion to Stay Proceedings Pending Appeal as to Counts III,
IV, and V of the Complaint (Doc. 78) is GRANTED. Counts III, IV, and V of
the Complaint are STAYED pending resolution of Defendants’ appeal.
Kroma Makeup EU, LLC, Kim Kardashian, Kourtney Kardashian, and Khloe

2

Kardashian are DIRECTED to file a joint status report advising the Court on
the status of the appeal, which shall be filed with this Court on March 8,
2016 and every sixty (60) days thereafter until the appellate proceedings
have concluded.
2. The parties’ Joint Motion for Enlargement of Time to File Dispositive and
Daubert Motions (Doc. 85) is DENIED AS MOOT. The Court will issue new
deadlines, if necessary, upon the resolution of Defendants’ appeal.
DONE AND ORDERED in Orlando, Florida on December 1, 2015.

Copies furnished to:
Counsel of Record
Unrepresented Parties

3