Cleland Construction Company Inc v. Futurenet Group Inc et al
ORDER and OPINION granting 9 Defendant FutureNet's Motion to Dismiss; the case is dismissed. AND IT IS SO ORDERED. Signed by Honorable Richard M Gergel on 2/3/2017.(sshe, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Cleland Construction Company,
FutureNet Group, Inc. and Lexon
Civil Action No. 9: 16-cv-3584-RMG
ORDER and OPINION
This matter comes before the Court on Defendant FutureNet's motion to dismiss or, in
the alternative, to stay proceedings pending arbitration. (Dkt. No.9). For the reasons below, the
Court GRANTS the motion to dismiss.
A motion to dismiss under Rule 12 tests the sufficiency of the complaint. It does not
resolve conflicts of facts. A court may dismiss a complaint only if it is clear that no relief could
be granted under any set of facts that could be proved consistent with the allegations. It does not
resolve conflicts of facts, the merits of the claim, or the applicability of defenses asserted.
Edwards v. City ofGoldsboro, 178 F.3d 231, 243 (4th Cir. 1999), In considering a motion to
dismiss, the factual allegations in the complaint are accepted as true and the plaintiff is afforded
the benefit of all reasonable inferences that can be drawn from those allegations. Mylan
Laboratories, Inc. v. Matkari, 7 F.3d 1130,1134 (4th Cir. 1993).
Materials outside the pleadings which relate to jurisdiction can be considered on a motion
to dismiss for lack ofjurisdiction. Land v. Dollar, 330 U.S. 731, 735 (1947); Capitol IndustriesEML Inc. v. Bennett, 681 F.2d 1107, 1118 n.29 (9th Cir.), cert. denied, 459 U.S. 1087 (1982).
Whether the parties have agreed to arbitrate their disputes is a jurisdictional question. See Bhd of
Ry. & SS Clerks v. Norfolk S Ry. Co., 143 F.2d 1015, 1017 (4th Cir. 1944)("Arbitration
deprives the judiciary ofjurisdiction over the particular controversy and the courts have long
ruled that there must be strict adherence to the essential terms of the agreement to arbitrate.").
Thus, the Court may consider materials outside the pleadings to determine whether a valid
arbitration agreement exists.
Plaintiff filed this Miller Act action against Defendants, claiming that Defendant
FutureNet breached a subcontract and Defendant Lexon refused to pay. (Dkt. No.1). Defendant
FutureNet asserted that Plaintiffs claims are subject to binding arbitration pursuant to a valid
arbitration agreement signed by Plaintiffl and filed a motion to dismiss, or in the alternative, stay
proceedings pending arbitration. (Dkt. No.9). Defendant Lexon consented to Defendant
FutureNet's motion. (Dkt. No. 10).
Plaintiff bears the burden of showing that the arbitration agreement is unenforceable.
Green Tree Fin. Corp. v. Randolph, 531 U.S. 79, 92 (2000). Because Plaintiff did not file a
response to the motion to dismiss, Plaintiff has failed to meet its burden of establishing that the
arbitration agreement is unenforceable. Thus, Plaintiffs claims are subject to arbitration and not
proper in this Court. Dismissal is the proper remedy. Choice Hotels Int'l, Inc. v. BSR Tropicana
Resort, Inc., 252 F3d 707, 709-1 0 (4th Cir. 2001).
For the abovementioned reasons, the Court GRANTS Defendant FutureNet's motion to
dismiss and the case is dismissed. (Dkt. No.9).
AND IT IS SO ORDERED.
United States District Court Judge
Dkt. No.9 at 2 ("Any controversy or claim arising out of or relating to this Agreement, or
the breach thereof, shall be settled by arbitration to be administered by the American Arbitration
Association ('AAA') under its Construction Industry Arbitration Rules and Mediation
Procedures (,Arbitration Rules') ....") (quoting arbitration clause).
Charleston, South Carolina
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