Bank of America, N.A. v. Magruder Construction Co., Inc.

Filing 56

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendant's Motion to Dismiss Verified Complaint 17 is DENIED. Signed by District Judge John A. Ross on 7/31/14. (ARL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

BANK OF AMERICA, N.A.,
Plaintiff,
v.
MAGRUDER CONSTRUCTION CO., INC.,
Defendant.

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No. 4:14-CV-809-JAR

MEMORANDUM AND ORDER
This matter is before the Court on Defendant Magruder Construction Co., Inc.’s Motion
to Dismiss Verified Complaint. (Doc. No. 17) The motion is fully briefed.
Magruder requests the claims herein be resolved by binding arbitration pursuant to
section 12.4 of the Loan Agreement, which provides that “[a]t the request of any party to this
agreement, any Claim shall be resolved by binding arbitration in accordance with the Federal
Arbitration Act (Title 9, U.S. Code),” see Doc. No. 1-1, section 12.4(b), and moves for dismissal
or, in the alternative, for stay pending arbitration. Under the Loan Agreement, however, the Bank
has other available remedies, including the appointment of a receiver. Specifically, section
12.4(f) of the Loan Agreement provides that “[t]his paragraph does not limit the right of any
party to … (iv) act in a court of law to obtain an interim remedy, such as but not limited to,
injunctive relief, writ of possession or appointment of a receiver, or additional supplementary
remedies.” Likewise, the Security Agreement provides that one of the Bank’s remedies after
default is the appointment of a receiver. (Doc. No. 1-2, section 6(l)). Thus, Magruder’s motion to
dismiss and or stay will be denied.

Accordingly,
IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss Verified Complaint
[17] is DENIED.
_________________________________
JOHN A. ROSS
UNITED STATES DISTRICT JUDGE
Dated this 31st day of July, 2014.

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