AsymmetRx, Inc. v. Biocare Medical LLC et al

Filing 87

Judge Richard G. Stearns: ORDER entered granting 84 Motion Stay and to Compel Arbitration. (Zierk, Marsha)

AsymmetRx, Inc. v. Biocare Medical LLC et al

Doc. 87

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS CIVIL ACTION NO. 07-CV-11189-RGS ASYMMETRX, INC. and PRESIDENT AND FELLOWS OF HARVARD COLLEGE v. BIOCARE MEDICAL LLC MEMORANDUM AND ORDER ON HARVARD'S MOTION TO STAY AND COMPEL ARBITRATION December 3, 2010 STEARNS, D.J. The motion to stay and compel arbitration (Docket # 84) is ALLOWED. The objection interposed by defendant Biocare Medical LLC (Biocare) is based on Harvard's alleged failure to invoke the arbitration clause of the License Agreement in a timely fashion. While there is no doubt that Harvard was aware of the dispute almost from its inception, and certainly for the duration of the litigation (as Biocare claims), I do not fault Harvard for the delay. The original parties (AsymmetRx and Biocare), as well as the court, proceeded to a decision on the merits after extended litigation with only the slightest of suggestions that Harvard might be a necessary (as opposed to desirable) party.1 Only when the Federal Circuit, after full briefing and an oral argument on the appeal of the district court's decision, sua sponte concluded that Harvard was a necessary party did Harvard become involved (and then only at the prodding of the district court). Under the

Neither AsymmetRx nor Biocare ever moved to join Harvard as a necessary party pursuant to Fed. R. Civ. P. 19(a).

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circumstances, I would be hard pressed to conclude that Harvard was lying in the weeds in order to extract an advantage in an arbitration that no one foresaw. Harvard's lawyers have a reputation for being smart, but being clairvoyant is something else altogether.2 SO ORDERED. /s/ Richard G. Stearns ______________________________ UNITED STATES DISTRICT JUDGE

Biocare's allegation that Harvard has in some underhanded fashion colluded with Asymmetrx to obtain an unfair advantage in the arbitration process by sitting on its rights is a matter for the arbitrator and not this court. See Sleeper Farms v. Agway, Inc., 506 F.3d 98, 103 (1st Cir. 2007) (issues of "procedural" arbitrability ­ whether contractual time limits have been met, or whether laches or estoppel bar invocation of arbitral rights, are for the arbitrator). -2-

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