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RYAN v. ALLEN

January 29, 1998

COLVIN GREGG RYAN, Plaintiff, -v.- ROBERT W. ALLEN; THOMAS E. WARD; GUSTAVO KOCH; ANDES COLOMBIANOS MINERIA & EXPLORACION, S.A., a Colombian corporation; and THE BULLETT GROUP, a/k/a Bullet Mineral Investments, a company; a/k/a Bullet Holdings Corp., a Panamanian corporation; a/k/a Gold Bullet Corp., a Nevada corporation; a/k/a Grupo De Bullet, S.A., a Colombian corporation; a/k/a Rio De Oro S.R. LTDA, a Colombian limited liability company, Defendants.

David R. Homer, United States Magistrate Judge


The opinion of the court was delivered by: HOMER

U.S. MAGISTRATE JUDGE

 MEMORANDUM-DECISION AND ORDER

 In this action plaintiff alleges violations of the Securities Act of 1933 ("1933 act"), 15 U.S.C. § 77a et seq.; the Securities Exchange Act of 1934 ("1934 act"), 15 U.S.C. § 78a et seq. (collectively "the securities acts"); the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq.; and various common law claims. The claims arise out of investments in a gold exploration venture. Specifically, plaintiff alleges that he was fraudulently induced to invest in companies purporting to have interests in gold mines located in Colombia.

 Presently pending is defendants' motion to stay the action pending arbitration. Docket No. 15. Plaintiff opposes the motion. Docket No. 21. Also pending is plaintiff's motion to file a second amended complaint. *fn1" Docket No. 17. Defendants oppose that motion. Docket No. 19. For the reasons which follow, both motions are granted.

 I. Background

 This action was commenced in the United States District Court for the Southern District of New York and transferred to this district by order of United States District Judge Harold Baer, Jr. Ryan v. Allen, 1997 U.S. Dist. LEXIS 13783, No. 97- CIV-55, 1997 WL 567717 (S.D.N.Y. Sept. 11, 1997). Plaintiff's complaint alleges that the individual and corporate defendants wrongfully induced plaintiff to make loans to further development of mining interests in or around Medellin, Colombia. Plaintiff alleges that defendants Robert Allen and Thomas Ward owned controlling interests in various corporate entities, including Rio de Oro, S.A. ("RIO"), the Bullet Group and Andes Colombianos Mineria & Exploracion, S.A. ("ACME"), which were used to defraud individual investors like plaintiff.

 In 1994, plaintiff became involved with defendants' mining endeavor in South America. Plaintiff claims that defendants falsely told him that, through their connections within Colombia, defendants had obtained certain interests to gold claims in that nation. According to plaintiff, defendants stated that the gold could be commercially mined, that projected yield from the mines was over sixteen million ounces of gold, that defendants were experienced in the mining industry, and that following certain initial investments, the remaining costs of developing the Colombian mines could be borrowed against future profits.

 In reliance on these representations, plaintiff made a series of loans to defendants to finance initial steps in the mining process. These loans were memorialized in written agreements (collectively "the loan agreements") on November 27, 1995 ($ 200,000 from plaintiff to RIO); March 12, 1996 ($ 33,333 from plaintiff to Allen for ACME's benefit); and March 16, 1996 ($ 33,333 from plaintiff to Ward for ACME's benefit).

 Plaintiff now claims that the representations about the alleged claims to gold interests in Colombia and the potential profitability of any mines there were false and that defendants fraudulently induced his investment. He now asserts claims sounding in fraud, negligent misrepresentation, breach of fiduciary duty, breach of contract, money had and received; an action for an accounting; and statutory claims based on the securities acts and RICO.

 II. Discussion

 A. Motion for a Stay Pending Arbitration

 Plaintiff correctly notes that a district court lacks authority to compel parties to arbitrate a matter outside of that court's district. See Oil Basins Ltd. v. Broken Hill Proprietary Co., 613 F. Supp. 483, 486 (S.D.N.Y. 1985); Couleur Int'l Ltd. v. Saint-Tropez West, 547 F. Supp. 176, 177-78 (S.D.N.Y. 1982). Those cases, however, also recognize that a court may stay a pending action while a party seeks an order compelling arbitration in the proper forum. Id.; see ...


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