9 U.S.C. § 3.
First, Broadcort's action is referable to NASD arbitration on Dutcher's demand. According to the NASD Code of Arbitration Procedure, arbitration is mandatory for "any dispute, claim or controversy eligible for submission under Part I of this Code between a customer and/or associated person arising in connection with the business of such member or in connection with the activities of such associated persons . . . as provided by any duly executed enforceable written agreement or upon the demand of the customer." NASD Code of Arbitration Procedure, Part II, Section 12(a) (1992). Broadcort's action is referable to arbitration because it arose in connection with Broadcort's business as a member of the NASD.
Second, according to Section 3, as long as a party is not in default in proceeding with arbitration, this court may grant a stay of an action upon that party's request. 9 U.S.C. § 3. Whether a party is in default in proceeding with arbitration is a factual determination. See Cotton v. Slone, 4 F.3d 176, 179 (2d Cir. 1993) ("waiver determination necessarily depends upon facts of particular case and is not susceptible to bright line rules."). If a party permits litigation to proceed to a significant extent and then requests that the dispute be arbitrated, that party may be in "default in proceeding with such arbitration." While Dutcher's repeated requests for extensions of time resulted in a delay of approximately five months between Broadcort's filing of its action on June 29, 1993 and the arbitration demand in San Francisco on November 11, 1993, the litigation in this court has not progressed beyond preliminary motions. Therefore, we find that Dutcher is not in default in proceeding with arbitration. See Bowers v. Transportacion Maritima Mexicana, S.A., 901 F.2d 258 (2d Cir. 1990) (mere participation in court action does not constitute a waiver of arbitration but when party participates in court action until determination on merits, waiver may be inferred).
Accordingly, we find that Dutcher is entitled to a Section 3 stay of Broadcort's action against him in New York.
B. Broadcort's Cross-Motion to Compel Arbitration in New York
According to Section 4, a motion to compel arbitration may be brought in federal court when a party is "aggrieved" by another party's failure, neglect, or refusal to arbitrate. This action is substantially similar to Aaacon Auto Transp. Inc. v. Barnes, 603 F. Supp. 1347 (S.D.N.Y. 1985).
In Aaacon, plaintiff brought an action against defendants based upon a written agreement that included an arbitration clause specifying that arbitration must occur before the American Arbitration Association ("AAA") pursuant to their rules and regulations. Id. at 1348. The AAA determined that Maryland was the proper venue for the dispute. Id. Pursuant to the AAA's ruling, the defendant moved to stay the original action under Section 3. Id. The plaintiff then cross-moved pursuant to Section 4 to compel arbitration in New York. Id.
The court held that the plaintiff, Aaacon, was not aggrieved by the defendant's refusal to arbitrate. 603 F. Supp. at 1349. Rather, the court stated, "Barnes has not failed, neglected, or refused to arbitrate. On the contrary, he has already made a demand for arbitration of his own claims before the AAA and now moves to stay this action so that all claims arising from the . . . agreement may be arbitrated together in Maryland, which the AAA has determined is the appropriate locale for the hearings."
Dutcher has refused to arbitrate in New York, but has not refused to arbitrate at all. Dutcher has brought an arbitration proceeding naming Broadcort as a respondent in San Francisco, establishing his willingness and intent to arbitrate. Therefore, Broadcort is not "aggrieved" by Dutcher's "failure, neglect, or compelling arbitration in New York.
We hold that Dutcher is entitled to a stay of Broadcort's action and that Broadcort is not entitled to an order compelling arbitration in New York. Accordingly, we find that arbitration in San Francisco is appropriate and that Broadcort should pursue its request for a severance from that arbitration proceeding by application in that forum. While we recognize that this conclusion may not be the most efficient result if the arbitrator decides that Broadcort should not be a respondent in the San Francisco proceeding and Broadcort subsequently pursues arbitration in New York, we believe that this finding is consistent with established precedent. See Prouse, supra, at 331 (explaining that intent of FAA is to enforce private arbitration agreements even if outcome is inefficient in terms of judicial economy); see also Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 218-221, 105 S. Ct. 1238, 1241-42, 84 L. Ed. 2d 158 (1985) (holding that arbitration agreements must be enforced according to FAA even if to do so results in inefficient, bifurcated proceedings); Ginsburg v. Faragalli, 776 F. Supp. 806, 808 (S.D.N.Y. 1991) (explaining that purpose of FAA is not to promote expeditious resolution of claims).
Dated: August 9, 1994
Allen G. Schwartz
United States District Judge