SBM Site Services, LLC v. Alvarez

Filing 24

MEMORANDUM AND ORDER - The Magistrate Judge's Findings and Recommendation (Filing No. 23 ) are adopted. Petitioner's Motion to Compel Arbitration (Filing No. 18 ) is denied. Petitioner's Petition to Compel Arbitration (Filing No. 1 ) is dismissed without prejudice. Judgment shall be entered by separate document. The clerk of the court shall close the court file for statistical purposes. Ordered by Senior Judge Richard G. Kopf. (KLF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
SBM SITE SERVICES, LLC,
Petitioner,
v.
RAUL ALVAREZ,
Respondent.

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4:17CV3028

MEMORANDUM
AND ORDER

This matter is before the court on the Findings and Recommendation filed
on January 19, 2018, by Magistrate Judge Susan M. Bazis (Filing No. 23). Judge
Bazis has recommended that Petitioner’s Motion to Compel Arbitration (Filing No.
18) be denied for lack of a justiciable case or controversy. No objections have been
filed to the findings and recommendation within the time permitted by 28 U.S.C. §
636(b)(1), Federal Rule of Civil Procedure 72(b)(2), and Nebraska Civil Rule 72.2(a).
In any event, I have conducted a de novo review and find that Judge Bazis has
correctly found the facts and applied the law.1 The Magistrate Judge’s Findings and
Recommendation therefore will be adopted, the Motion to Compel Arbitration will
be denied, and the Petition to Compel Arbitration (Filing No. 1) will be dismissed
without prejudice.2
1

While there is a split of authority on the issue, it has been held that motions
to compel arbitration are “nondispositive” for purposes of Federal Rule of Civil
Procedure 72. See Wojtalewicz v. Pioneer Hi-Bred Int’l, Inc., 944 F. Supp. 2d 715,
721 (D. Neb. 2013); Credit Suisse Securities (USA) LLC v. Hilliard, No. 8:07CV17,
2007 WL 2137824 at *2 (D.Neb. July 23, 2007).
2

As the court explained in a Memorandum and Order entered on July 10, 2017
(Filing No. 17), a petition to compel arbitration filed under Section 4 of the Federal
Arbitration Act is treated as a motion rather than a pleading. See 9 U.S.C. § 6. Because

Accordingly,
IT IS ORDERED:
1.

The Magistrate Judge’s Findings and Recommendation (Filing No. 23)
are adopted.

2.

Petitioner’s Motion to Compel Arbitration (Filing No. 18) is denied.

3.

Petitioner’s Petition to Compel Arbitration (Filing No. 1) is dismissed
without prejudice.

4.

Judgment shall be entered by separate document.

5.

The clerk of the court shall close the court file for statistical purposes.

DATED this 6th day of February, 2018.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

Petitioner erroneously docketed its petition as a complaint, the court directed
Petitioner to file a separate motion to compel arbitration in order to progress the
matter. Although no “action” was commenced by the filing of the petition, see Fed.
R. Civ. P. 3, judgment will be entered by separate document dismissing the petition
without prejudice, see Fed. R. Civ. P. 54(a), 58; 9 U.S.C. § 16(a)(1)(B), and the court
file will then be closed.
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