Pirtek USA, LLC v. Twillman et al

Filing 57

ORDER denying 29 Motion to transfer case; denying 52 motion to dismiss. On or before October 21, 2016, the parties shall jointly file an amended Case Management Report in accordance with the requirements of thisOrder. Signed by Judge Roy B. Dalton, Jr. on 10/19/2016. (VMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
PIRTEK USA, LLC,
Plaintiff,
v.

Case No. 6:16-cv-01302-Orl-37TBS

MICHAEL J. TWILLMAN; DOLORES M.
TWILLMAN; and DONALD J.
TWILLMAN,
Defendants.
ORDER
This cause is before the Court on the following:
1.

Defendants’ Joint Motion to Transfer this Action to the United States District
Court for the Eastern District of Missouri and Incorporated Memorandum of
Law (Doc. 29), filed August 12, 2016;

2.

Pirtek USA’s Response in Opposition to Defendants’ Joint Motion to
Transfer with Incorporated Memorandum of Law (Doc. 42), filed
August 29, 2016;

3.

The

Amended

Case

Management

Report

(Doc.

54),

filed

September 16, 2016;
4.

Defendants’ Joint Motion to Dismiss Plaintiff Pirtek USA, LLC’s Verified
Amended Complaint for Failure to State a Claim and Incorporated
Memorandum of Law (Doc. 52), filed September 13, 2016; and

5.

Pirtek USA, LLC’s Response in Opposition to Defendants’ Joint Motion to
Dismiss

Pirtek’s

Verified

Amended

Complaint

with

Memorandum of Law (Doc. 55), filed September 30, 2016.

Incorporated

Over the objections of Defendants Michael J. Twillman, Dolores M. Twillman, and
Donald J. Twillman (“Defendants”), on October 6, 2016, this Court entered an Order
granting in part the motion for preliminary injunction filed by Plaintiff Pirtek USA, LLC
(“Pirtek”). (Doc. 56 (“PI Order”).) In accordance with the analysis set forth in the
PI Order—which rejected Defendants’ arguments that a February 2016 franchise
agreement between Pirtek and Defendant Michael Twillman (“Franchise Agreement”)
was effectively rescinded—the Court now finds that the Defendants’ Motion to Transfer
(Doc. 29) and Motion to Dismiss (Doc. 52) are due to be denied. 1 (Doc. 56, pp. 8–14.)
As noted in the PI Order and discussed at the Hearing, Defendants agreed “to be
personally bound by each and every condition and term contained in the Franchise
Agreement . . . including without limitation the dispute resolution” provision. (See Doc. 56,
p. 4.) As such, “the ultimate merits” of the parties’ dispute may be decided “in arbitration
pursuant to the Franchise Agreement’s arbitration clause.” (See id. at 14, n.9; see also
Doc. 40-1, pp. 26–27.) Indeed, in their Amended Case Management Report (“CMR”),
which the parties jointly filed on September 16, 2016, the parties noted that “there may
be an issue whether Plaintiff’s request for a permanent injunction is subject to arbitration.”
(Doc. 54, p. 1.) Accordingly, to preserve judicial resources and the parties’ respective
interests (if any) in arbitration of their disputes, the Court will require that the parties
promptly file an Amended CMR. The Amended CMR must provide an additional and
distinct section concerning the timing of any arbitration proceedings and the anticipated
impact of such arbitration proceedings on this action. See generally 9 U.S.C. § 3 (2015).

1

The parties’ familiarity with the events at the Court’s Setpember 8, 2016, hearing
(“Hearing”) and the content of the PI Order is assumed.

2

Accordingly, it is hereby ORDERED AND ADJUDGED that:
1.

Defendants’ Joint Motion to Transfer this Action to the United States District
Court for the Eastern District of Missouri and Incorporated Memorandum of
Law (Doc. 29) is DENIED.

2.

Defendants’ Joint Motion to Dismiss Plaintiff Pirtek USA, LLC’s Verified
Amended Complaint for Failure to State a Claim and Incorporated
Memorandum of Law (Doc. 52) is DENIED.

3.

On or before October 21, 2016, the parties shall jointly file an amended
Case Management Report in accordance with the requirements of this
Order.

DONE AND ORDERED in Chambers in Orlando, Florida, on October 19, 2016.

Copies:
Counsel of Record

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