Lockard Aircraft Sales Co. v. Ulysses Asset Sub II, LLC et al

Filing 22

OPINION AND ORDER by Judge Frank H. Seay, staying case for period not to exceed ninety (90) days, or until April 7, 2014. Joint Status Report due March 10, 2014.(neh, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
LOCKARD AIRCRAFT SALES CO.,
Plaintiff,
vs.
ULYSSES ASSET SUB II, LLC f/k/a T6
UNISON SITE MANAGEMENT, LLC,
Defendant.

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Case No. 13-CV-79-FHS-KEW

OPINION AND ORDER
This matter comes on for consideration of the Defendant’s Objection to the Magistrate
Judge’s Order lifting the stay in this matter (Dkt. # 16). Defendant argues these claims are subject
to arbitration, but this Court does not have authority to order arbitration based upon a forum
selection clause contained within the arbitration agreement entered into between the parties.
Plaintiff responds by arguing it is the Defendant who has to commence any arbitration proceeding
(Dkt. # 20). Both parties seem eager to have this Court construe the agreement and tell the other
side that they are required to initiate arbitration proceedings.
The Net Profits Agreement seems fairly straightforward. In the event of a dispute, it sets
forth a dispute resolution process which includes:
(1) upon a party’s written notice of dispute to the other party, an authorized
representative of the Site Owner and Unison shall, through good faith negotiation,
attempt to settle a written resolution within thirty (30) days and (2) if such
negotiation attempts fail, the dispute shall be submitted by the parties to a mutually
agreed upon arbitration for a binding and final arbitration decision in accordance
with the rules of the American Arbitration Association (“AAA”) and using the
Federal Rules of Evidence and Civil Procedure.
Dkt. # 5-2, at p. 2, ¶ 6 (Emphasis added). The Wireless Communication Easement and Assignment
Agreement contains a similar dispute resolution provision. See, Dkt. # 5-3, at pp. 4-5, ¶ 16.

This Court finds the filing of a lawsuit in Okmulgee County District Court and the service
of the same upon the defendant acted as the plaintiff’s written notice of a dispute. The parties
should, therefore, proceed to resolve this dispute in accordance with the agreements which they
entered into.
This Court will stay this matter for a period of ninety (90) days in order to allow the parties
an opportunity to negotiate in good faith and/or submit this matter to mutually agreed upon
arbitration. The parties are hereby directed to file a joint status report advising the Court of the
progress being made to resolve this matter no later than March 10, 2014.
It is, therefore, the Order of this Court that this matter is again stayed for a period not to
exceed ninety (90) days, or until April 7, 2014.
It is so ordered this 6th day of January, 2014.

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