BPP Retail Properties LLC v. North American Roofing Services, Inc. et al

Filing 181

MEMORANDUM AND ORDER re 172 Response in Opposition to Motion. Carlisle's motion to compel arbitration is GRANTED. Signed by Judge Francisco A. Besosa on 10/15/2018. (brc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
BPP RETAIL PROPERTIES, LLC,
Plaintiff,
v.

Civil No. 13-1259 (FAB)

NORTH AMERICAN ROOFING
SERVICES, INC., et al.,
Defendants.

MEMORANDUM AND ORDER
BESOSA, District Judge.
Plaintiff BPP Retail Properties, LLC (“BPP”) moves to enforce
defendant Carlisle Construction Materials, Inc. (“Carlisle”) to
perform its remaining obligations pursuant to the confidential
settlement

agreement

(“settlement

agreement”)

they

reached.

(Docket No. 170.)

Carlisle opposes BPP’s motion and moves to

compel

pursuant

arbitration

(“FAA”), 9 U.S.C. § 4.
forth

below,

arbitration.

the

Court

the

Federal

(Docket No. 172.)
GRANTS

(Docket No. 172.)

settlement agreement is moot.
I.

to

Carlisle’s

Arbitration

Act

For the reasons set
motion

to

compel

BPP’s motion to enforce the

(Docket No. 170.)

Background
In October 2014, BPP and Carlisle settled the underlying

litigation through a settlement agreement.

(Docket No. 163.)

Pursuant to the settlement agreement, “Carlisle will bear all

Civil No. 13-1259 (FAB)

2

responsibility and expense for the complete replacement of the
roofs of the Properties.”

(Docket No. 163, Ex. 1 at p. 5.) 1

settlement agreement contains an arbitration clause.
163, Ex. 1 at p. 9.)

The

(Docket No.

It also provides that venue to enforce it

shall be in this Court.

Id. at p. 10.

On December 16, 2014, the

Court granted the parties’ joint motion to dismiss the case with
prejudice (docket no. 167), and judgment was entered accordingly
(docket no. 169).
On June 4, 2018, BPP moved to enforce Carlisle’s performance
of

its

“remaining

agreement.

obligations”

pursuant

(Docket No. 170 at p. 1.)

to

the

settlement

Carlisle opposed BPP’s

motion and moved to compel arbitration for any dispute regarding
“the

quality,

acceptability,

completion

or

timeliness”

performance, as stipulated by the settlement agreement.

of

(Docket

No. 172 at p. 4.)
II.

Standard of Review
The Federal Arbitration Act (“FAA”) establishes the validity

and enforceability of written arbitration agreements.
§ 2.

“Whether or not a dispute is arbitrable is typically a

question for judicial determination.”

1

9 U.S.C.

Dialysis Access Ctr., LLC

“Properties” refers to the following retail shopping centers owned and operated
by BPP in the Commonwealth of Puerto Rico: Caguas Community Shopping Center,
Dorado del Mar Shopping Center, Los Jardines Shopping Center, and San Lorenzo
Shopping Center. (Docket No. 163, Ex. 1 at p. 2.)

Civil No. 13-1259 (FAB)

3

v. RMS Lifeline, Inc., 638 F.3d 367, 375 (1st Cir. 2011) (citing
Granite Rock Co. v. Int’l Bhd. of Teamsters, 561 U.S. 287, 296
(2010)).

“The

court

‘shall’

order

arbitration

‘upon

being

satisfied that the making of the agreement for arbitration or the
failure to comply therewith is not in issue.’”

Rent-A-Ctr., W.,

Inc. v. Jackson, 561 U.S. 63, 68 (2010) (quoting 9 U.S.C. § 4).
For a court to compel arbitration, a party must demonstrate
“[1] that a valid agreement to arbitrate exists, [2] that the movant
is entitled to invoke the arbitration clause, [3] that the other
party is bound by that clause, and that [4] the claim asserted
comes within the clause’s scope.”

Dialysis Access Ctr., 638 F.3d

at 375 (quoting InterGen N.V. v. Grina, 344 F.3d 134, 142 (1st
Cir. 2003)).

“[Q]uestions of arbitrability must be addressed with

a healthy regard for the federal policy favoring arbitrations.”
HIM Portland, LLC v. DeVito Builders, Inc., 317 F.3d 41, 43 (1st
Cir. 2003) (quoting Moses H. Cone Mem’l Hosp. v. Mercury Constr.
Corp., 460 U.S. 1, 24 (1983)).

“[A]s a matter of federal law, any

doubts concerning the scope of arbitrable issues should be resolved
in favor of arbitration, whether the problem at hand is the
construction of the contract language itself or an allegation of
waiver, delay, or a like defense to arbitrability.”
Mem’l Hosp., 460 U.S. at 24-25.

Moses H. Cone

Civil No. 13-1259 (FAB)

4

III. Discussion
Carlisle

sufficiently

demonstrates

necessary to compel arbitration.
F.3d at 375.

the

four

requirements

See Dialysis Access Ctr., 638

It is uncontested that “a valid agreement to

arbitrate exists” between BPP and Carlisle, that Carlisle is
“entitled to invoke the arbitration clause,” and that both BPP and
Carlisle are “bound by that clause.”
Ex. 1; Docket Nos. 172 and 173.

See id.; Docket No. 163,

BPP and Carlisle signed the

settlement agreement with the arbitration clause, making BPP party
to the arbitration dispute.

(Docket No. 163, Ex. 1 at pp. 12-14.)

Carlisle is entitled to invoke the arbitration clause as a party
to the settlement agreement.

See Johnson & Johnson Int’l v. P.R.

Hosp. Supply, Inc., 258 F. Supp. 3d 255, 261 (D.P.R. 2017) (Besosa,
J.) (“The second requirement . . . that the parties moving to
compel arbitration be entitled to invoke the arbitration clause.
. . . is satisfied where the movants are signatories or parties to
the agreement containing the arbitration provision.”).

BPP does

not challenge the validity of the arbitration clause, nor does it
deny its or Carlisle’s status as being parties to the agreement.
The dispute also falls squarely within the scope of the
arbitration clause.

See Dialysis Access Ctr., 638 F.3d at 375;

Docket No. 173 at pp. 3-6.

The arbitration clause states,

If during the course of the performance of the Roof Work,
disputes arise between BPP and Carlisle regarding the

Civil No. 13-1259 (FAB)

5

quality, acceptability, completion, workmanship, or the
timeliness of the Roof Work, those disputes shall be
resolved in the first instance by agreement between BPP
and Carlisle of their representatives. In the event that
BPP and Carlisle cannot agree on the resolution of the
dispute, the dispute shall be referred to . . . a neutral
third party decision maker (the “Arbitrator”).
(Docket No. 163, Ex. 1 at p. 9.) 2
the roof work.
“has

still

BPP disputes the timeliness of

not

(Docket No. 170 at pp. 3-6.)
received

the

requested

BPP contends that it

dates

or

performance

schedule,” and that “Carlisle has not initiated an effort to
perform its remaining Roof Work obligations.”

Id. at p. 5.

provides

and

email

communications

between

BPP

Carlisle

BPP
to

demonstrate the parties’ efforts and failure to schedule the roof
work.

Id. at pp. 10-26.

BPP, nonetheless, argues that this

dispute is outside the scope of the arbitration clause.

According

to BPP, the arbitration clause does not apply to its claims because
“Carlisle’s failures or refusals to undertake any performance
cannot have occurred and are not occurring during Carlisle’s
performance of Roof Work.”

(Docket No. 173 at p. 3.)

The dispute, however, arises precisely from the roof work, as
supported by the email communications attached to BPP’s motion.
See Docket No. 170 at pp. 10-26 (“From our perspective almost three
roofs are finished.

2

We need to make sure the change orders are

“Roof Work” refers to Carlisle’s replacement of the roofs, as specified by
the settlement agreement. Docket No. 163, Ex. 1 at p. 5; see id. at pp. 2833.

Civil No. 13-1259 (FAB)

6

processed and paid.”). Because the parties have “a valid agreement
to arbitrate,” Carlisle is entitled to invoke the arbitration
clause, BPP “is bound by that clause,” and BPP’s claims “come[]
within the clause’s scope,” the Court is “satisfied that the making
of the agreement for arbitration . . . is not at issue” and compels
the parties to arbitrate.

See Dialysis Access Ctr., 638 F.3d at

375; Rent-A-Ctr., W., Inc., 561 U.S. at 68. Accordingly, the Court
GRANTS BPP’s motion to compel arbitration.
IV.

(Docket No. 172.) 3

Conclusion
For the reasons set forth above, Carlisle’s motion to compel

arbitration is GRANTED.

(Docket No. 172.)

IT IS SO ORDERED.
San Juan, Puerto Rico, October 15, 2018.

s/ Francisco A. Besosa
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE

3 Carlisle also requests that the Court “stay judicial proceedings pending
arbitration.”
(Docket No. 172 at p. 1.)
Because the Court issued a final
judgment in December 2014, there are no judicial proceedings pending in this
case. See Docket No. 169.