Kovalchuk v. Babiarz et al

Filing 4

Judge F. Dennis Saylor, IV: MEMORANDUM AND ORDER entered granting 2 Motion to Compel; granting 2 Motion to Stay; denying as moot 3 Motion to stay action for 30 days. (Castles, Martin)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
_______________________________________
)
MICHAEL K. KOVALCHUK,
)
)
)
Plaintiff,
)
Civil Action No.
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11-40189-FDS
v.
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JOHN H. BABIARZ, JOHN TARPINIAN, )
and JESUP & LAMONT,
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)
)
Defendants.
_______________________________________)
MEMORANDUM AND ORDER ON DEFENDANT BABIARZ’S
MOTION TO STAY ACTION AND COMPEL ARBITRATION
On October 11, 2011, defendant John M. Babiarz moved to compel arbitration and stay
this action pending arbitration.1 On October 25, 2011, plaintiff filed a motion to stay the action
for 30 days, anticipating that he would file a stipulation of dismissal. Plaintiff has not filed a
stipulation of dismissal and has not filed any additional opposition to defendant’s motion to
compel arbitration.
Plaintiff signed two agreements, the relevant portions of which provide:
It is agreed that all controversies or disputes which may arise between [plaintiff]
and Introducing Firm, Clearing Agent and any sub-Advisor . . . concerning any
transaction or the construction, performance or breach of this Agreement or any
other agreement between us, whether entered into prior to, on, or subsequent to
the date of this Agreement, including any controversy concerning whether an issue
is arbitrable, shall be determined by arbitration conducted before, and only before,
an arbitration panel set up by either the National Association of Securities Dealers,
Inc. (“NASD”) or the New York Stock Exchange.
(Schnurbusch Aff. Ex. B, at 3; Oftring Aff. Ex., at 15).

1

The complaint misidentifies defendant as “John H. Babiarz.” Defendants John Tarpinian and Jesup &
Lamont have either been dismissed or defaulted. (See State Court Record, Exs. G, Z).

When “construing an arbitration clause, courts and arbitrators must ‘give effect to the
contractual rights and expectations of the parties.’” Stolt-Nielsen S. A. v. AnimalFeeds Int’l
Corp., 130 S. Ct. 1758, 1773-74 (2010) (citation omitted)). “A party who is seeking to compel
arbitration must demonstrate ‘that a valid agreement to arbitrate exists, that the movant is entitled
to invoke the arbitration clause, that the other party is bound by that clause, and that the claim
asserted comes within the clause’s scope.’” Soto-Fonalledas v. Ritz-Carlton San Juan Hotel Spa
& Casino, 640 F.3d 471, 474 (1st Cir. 2011). “When an enforceable arbitration agreement exists
between the parties, a court may enforce that agreement by staying existing litigation pending
arbitration of the parties, 9 U.S.C. § 3, or compelling the parties to arbitrate, 9 U.S.C. § 4.”
DeLuca v. Bear Stearns & Co., 175 F. Supp. 2d 102, 106-07 (D. Mass. 2001).
Plaintiff’s claims appear to fall within the scope of an arbitration clause to which he
agreed, and he has given no reason to suggest otherwise. Accordingly, defendant’s motion to
compel arbitration is GRANTED, and the litigation is hereby stayed pending arbitration.
Plaintiff’s motion to stay the action for 30 days is DENIED as MOOT.
So Ordered.
/s/ F. Dennis Saylor
F. Dennis Saylor IV
United States District Judge
Dated: May 3, 2012