Free Affidavit - District Court of Connecticut - Connecticut

Case 3:03-cv-00651-MRK Document 31 Filed 10/29/2004 Page 1 of 2
UNITED STATES DISTRICT COURT
DISTRiC"I" OF CONNECTICUT
VI/iLI.iAi\/i E. McCARTY : CIVIL ACTION
1 NO. 3:03cv65i (MRK)
PLAINTEFF 1
v. {
DERIVIUM CAPITAL, LLC, et al.
DEFENDANT OCTOBER 27, 2004
AFFiDAVIT OF CHARLES CATHCART
I, Charles Cathcart, being duly sworn, do depose and say:
t. I am over the age of eighteen years and believe in the obligations of an oath.
2. I am the founder and managing rnember of Derivium Capitai, LLC, formerly
known as First Security Capitai, LLC (“Derivium"), a South Carolina iimited liabiiity company.
3. Attached hereto as Exhibit A is the September 25, 1998 Master Agreement to
Provide Financing and Custodial Services between Derivium and Plaintiff.
4. Attached hereto as Exhibit B is the September 10, 2001 Master Agreement to
Provide Financing and Custodial Services between Derivium and Plaintiff.
5. As set forth in Section 13 of Exhibit A, and in Section 12 of Exhibit B, Piaintiff
"agree[d] to submit to arbitration in any claims, disputes and controversies" between Plaintiff
and Derivium (and/or the "employees, officers, principais, directors, attorneys and agentsf of
either of them), and "turther agreeld] that such arbitration shail proceed in Charleston, South
Carolina, and shail be conducted in accordance with the Commercial Arbitration Ruies ofthe
American Arbitration Association"
B. Prior to Plaintiffs apparent commencement of the present lawsuit, Plaintiff
initiated an arbitration proceeding concerning the same dispute before the American
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Case 3:03-cv-00651—lV|FtK Document 31 Filed 10/29/2004 Page 2 of 2
Arbitration Association ("AAA") in New York. That proceeding was dismissed by the
American Arbitration Association based on the ianguage in the arbitration clause under the
foregoing agreements, requiring that the arbitration of any claims or disputes proceed before
the AAA in Charieston, South Caroiina.
7. in May 2003, Derivium received via malt a Notice of Lawsuit and Request for
Waiver of Service of Sumrnons, attached as Exhibit C. However, Derivium never executed
this Waiver and never waived the requirement of formal service of the Summons and
Complaint.
8. Neither Derivium, myseif, nor any ernpioyees, officers, principals, directors,
attorneys or agents of Derivium or myself, were ever thereafter served with the Summons in
this case.
The foregoing Affidavit is submitted in support of the Nlotion to Disrniss and the Motion
to Cornpei Arbitration fiied by Deriviurri in tnisaaction. _ _
_‘ V za} ,.,_.., _ af
aries Cathcart
Subscribed and sworn to before this if _• s__ ctober , 2004.
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