Groleau v. American Express Financial Advisors, Inc. et al

Filing 21

PROCEDURAL ORDER re 16 Motion for Judgment on the Pleadings. Hearing on motion set for November 23, 2010 at 10:30 am. Parties to file supplemental briefs (limited to 15 pages each, excluding exhibits) on the defenses of waiver and laches by November 12, 2010. No further briefing or oral argument on statute of limitations defense as the motion for judgment on the pleadings is DENIED as to that claim. So Ordered by Judge Joseph N. Laplante. (jb)

Groleau v. American Express Financial Advisors, Inc. et al

Doc. 21

UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Lucien H. Groleau v. American Express Financial Advisors, Inc. (n/k/a Ameriprise Financial Services, Inc.), Smith, Sweeney & Associaties, Inc., Peter H. Smith, and Jeremy Sweeney PROCEDURAL ORDER The defendants have moved for judgment on the pleadings, see Fed. R. Civ. P. 12(c), arguing that plaintiff Lucien Groleau's claim for specific performance of their November 2004 arbitration agreement (made during earlier litigation before this court, see Groleau v. Am. Express Fin. Advisors, Inc., 04-cv-332-JD, document no. 8) is barred by the statute of limitations, waiver, and laches. The court has undertaken active consideration of the Civil No. 10-cv-190-JL

motion and hereby notifies the parties that it will hear oral argument on November 23, 2010 at 10:30 AM. To assist the court in preparing for oral argument, the parties shall submit supplemental briefs on the following issue by November 12, 2010: whether the defenses of waiver and laches See, e.g.,

are for the court to resolve, or for the arbitrator.

Sleeper Farms v. Agway, Inc., 506 F.3d 98, 103 (1st Cir. 2007) (stating that waiver and laches defenses to an arbitration

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agreement generally "fall into [the] category of threshold issues for the arbitrator" to resolve). The supplemental briefs shall

be limited to 15 pages each, excluding exhibits. No further briefing or oral argument is necessary on the statute of limitations defense. Under New Hampshire law, the

limitations period for a breach of contract claim is three years, see N.H. Rev. Stat. § 508:4, and it "begins to run at the time of the breach," i.e., "when there is a failure, without legal excuse, to perform any promise which forms the whole or part of a contract." (2000). W. Gate Vill. Ass'n v. Dubois, 145 N.H. 293, 298

Here, the defendants did not refuse to honor the

arbitration agreement until February 2010, at the earliest.1 Groleau filed suit three months later. So his claim for specific

performance of the arbitration agreement is not barred by the statute of limitations. To that extent, the defendants' motion

for judgment on the pleadings2 is DENIED.

Contrary to what the defendants suggest, the administrative closure of Groleau's earlier case, see Groleau, 04-cv-332-JD, document no. 21, was neither a "dismissal" of that case nor a breach of the arbitration agreement. See, e.g., Lehman v. Revolution Portfolio, LLC, 166 F.3d 389, 392 (1st Cir. 1999) ("Properly understood, an administrative closing has no effect other than to remove a case from the court's active docket.").
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Document no. 16. 2

SO ORDERED.

Joseph N. Laplante United States District Judge Dated: cc: October 20, 2010 C. Wheat, Esq. Viens, Esq. M. Ciavarra, Esq. M. Callahan, Esq.

James David Louis James

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