Free Order - District Court of Connecticut - Connecticut

h Case 3:03-cv-00962-AVC Document 18 Filed 10/21/2003 Page 1 of 4
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UNITED STATES DISTRICT COURT 1
DISTRICT OF CONNECTICUT E
ZUGJUCTZI 19 3:3; 1
SUSAN PULLEN, :
P1&i¤11iff» 1 Ui3}1J1S1"R1C1`CUL1f€T E
v. 1 Civil No. 3:003CVOO§§§Tgg§g CT
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P & D AUTO LLC, AND 1 1
SOURCE ONE FINANCIAL CORP., : 1
Defendants. : 1
i ORDER DENYING THE DEFENDANT’S MOTION TO DISMISS
This is an action for a declaratory judgment, an injunction 1
and damages, brought by Susan Pullen, pursuant to the Truth in 1
Lending Act, 15 U.S.C. § 1601, the Motor Vehicle Information and 1
Cost Saving Act, 49 U.S.C. § 32701, the Connecticut Unfair Trade 1
Practices Act, Conn. Gen. Stat. § 42-11a, the Connecticut 1
Odometer Law, Conn. Gen. Stat. § 14-106b, and the Connecticut
Truth in lending Act, Conn. Gen. Stat. § 36a-676. The complaint
alleges that Pullen and P & D Auto, LLC, entered into a consumer
credit installment contract. Source One Financial Corp. (“Source 1
One") is the assignee of the contract. Source One has filed the {
within motion to dismiss pursuant to Fed. R. Civ. P 12(b)(1)
contending that this court lacks subject matter jurisdiction
because the plaintiff failed to submit the alleged dispute to I
arbitration as required under the relevant contract. As N
articulated hereinafter the motion to dismiss (document no. 10) E
is DENIED without prejudice to its refiling in accordance with 1
this order. E
Generally, “a claim that the failure to arbitrate precludes 1
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Case 3:03-cv-00962-AVC Document 18 Filed 10/21/2003 Page2of4 K
the maintenance of an action cannot properly be raised on a
motion to dismiss for lack of subject matter jurisdiction.” 1
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WRIGHT a MILLER, FEDERAL PRACTICE AND PROCEDURE § 1350 (2d Ed. 1990);
see also West v. Merillat Industries, Inc., 92 F. Supp. 2d 558, 1
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561 (W.D. Va. 2000); Stricks v. Homalloy, 352 F. Supp. 844, 847- 1
48 (E.D. Pa. 1972). Rather, such a claim should be raised by way i
of a petition for a stay or dismissal filed pursuant to the x
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Federal Arbitration Act; more specifically, 9 U.S.C. § 3.1 See p
Carey v. Connecticut General Life Insurance Co., 93 F. Supp. 2d 1
165, 166 n.1 (D. Conn. 1999). Nevertheless, some courts have
permitted such claims to be raised by way of a motion to dismiss 1
where it is clear that “the motion is properly brought under the 1
Federal Arbitration Act,” and where the arguments presented 1
indicate that the motion to dismiss serves as the functional p
equivalent of a motion brought pursuant to 9 U.S.C. § 3. Carey 1
v. Connecticut General Life Insurance Co., 93 F.Supp 2d 165, 166 1
n.1 (D. Conn. 1999); see also Thompson v. Nienaber, 239 F. 1
Supp.2d 478, 483-84 (D.N.J. 2002). In other words, if a motion
to dismiss serves as the functional equivalent of a 9 U.S.C. § 3 _
motion, a movant’s procedural failure does not require dismissal. 1
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`L“"“_"‘ . 1
19 U.S.C. § 3 provides: “If any suit or proceeding be brought in 1
any of the courts of the United States upon any issue referable to 1
arbitration under an agreement in writing for such arbitration, the 1
court in which such suit is pending, upon being satisfied that the §
issue involved in such suit or proceeding is referable to arbitration I
under such an agreement, shall on application of one of the parties `
stay the trial of the action until such arbitration has been had in l
accordance with the terms of the agreement, providing the applicant 1
for the stay is not in default in proceeding with such arbitration.” é
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gpp Thompson v. Nienaber, 239 F. Supp. 2d 478, 483-84 (D.N.J. E
2002). E
To determine if the defendant’s motion to dismiss serves as g
the functional equivalent of a motion brought pursuant to 9 g
U.S.C. § 3, the court examines the standard applied to a motion Y
filed pursuant to 9 U.S.C. § 3. “A court asked to stay [or 3
dismiss} proceedings pending arbitration must resolve four é
issues: first, it must determine whether the parties agreed to i
arbitrate; second, it must determine the scope of that agreement; E
third, if federal statutory claims are asserted, it must consider F
whether Congress intended those claims to be nonarbitrable; and é
fourth, if the court concludes that some, but not all, of the
claims in the case are arbitrable, it must then decide whether to
stay the balance of the proceedings pending arbitration.” i
Oldroyd v. Elmira Savings Bank, F.S.B., 134 F.3d 72, 75-76 (2d
Cir. 1998}.
Neither party employs this standard in their motion papers.
Further, although the party’s motion papers may fairly be
construed to address the first, and perhaps the second prong of
the test, neither party addresses the third or fourth prong.
Consequently, having examined the arguments presented, the court E
concludes that the motion papers fail to present the relevant
arguments necessary to a motion filed pursuant to 9 U.S.C. § 3.
Therefore, the motion to dismiss cannot be considered the
functional equivalent of a motion filed pursuant to 9 U.S.C. § 3. !
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Case 3:03-cv-00962-AVC Document 18 Filed 10/21/2003 Page4of4 E
g Accordingly, the motion to dismiss (document no. 10} is DENIED _
without prejudice. The defendant may refile the motion in I
accordance with this order. i
It is so ordered this jQfj day of October, 2003 at Hartford, i
Connecticut.
Alfred V. Covello
United S‘ates District Judge `
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