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Micoperi, S.R.L. v. Chm Maritime, S.A.P.I De C. v.

United States District Court, D. Massachusetts

March 5, 2015

MICOPERI, S.r.l., Petitioner,
v.
CHM MARITIME, S.A.P.I de C. V. Respondent.

MEMORANDUM AND ORDER

ALLISON D. BURROUGHS, District Judge.

I. INTRODUCTION

This case involves an ongoing arbitration that is proceeding before the Maritime Arbitration Association of the United States ("MAA"). On July 15, 2014, CHM Maritime, S.A.P.I. de C.V. ("CHM") filed a demand for arbitration against Micoperi, S.r.l. ("Micoperi") to recover payments that Micoperi allegedly owes CHM under four charter party contracts (the "Charter Parties") (Docket No. 1, ¶¶ 10, 25). Each of the Charter Parties relates to a different vessel that Micoperi chartered from CHM during the year 2013 (Id. ¶ 10).

Micoperi submitted a Response to CHM's demand for arbitration (Id. ¶ 28). On October 29, 2014, Micoperi submitted an Amended Response, alleging that CHM and a related company had committed a variety of tortious acts against Micoperi, which interfered with Micoperi's business operations and caused Micoperi to incur substantial damages (Id. ¶¶ 28, 29, Exhibit 5). In its Amended Response, Micoperi contended that these allegedly tortious acts should "act as an estoppel and setoff" to CHM's claims for damages, and sought to have its allegedly related counterclaims and defenses included in the MAA arbitration (Id.).

The arbitrator issued an Interim Order on January 15, 2015, in which he concluded that Micoperi's claims against CHM did not "arise out of or relate to" the four Charter Parties between Micoperi and CHM at issue in the arbitration (Docket No. 10, Exhibit 7, at p. 2). Rather, the arbitrator found that Micoperi's claims related to a fifth charter party that Micoperi had entered into with another company (Id.). This fifth contract, unlike the four Charter Parties with CHM, did not contain an arbitration clause (Id.; see also Docket No. 1, ¶ 26). Based on this, the arbitrator held that Micoperi's counter-claims did not belong in the MAA arbitration, and that Micoperi's Amended Response should be stricken (Docket No. 10, Exhibit 7, at p. 2).

On February 10, 2015, Micoperi filed this action against CHM in the district court, which it styled as a "Petition to Compel Arbitration" (Docket No. 1). Ultimately, Micoperi asked this court to rule that its claims against CHM were, in fact, arbitrable, and to order that those claims be submitted to and considered by the arbitrator (Id.). More immediately, Micoperi moved for a temporary restraining order and preliminary injunction staying the MAA arbitration between the parties until this court ruled on the issue of arbitrability (Docket Nos. 8, 9). Micoperi argued that its claims against CHM "[arose] out of or [related] to" the four Charter Parties, and that they should, therefore, also be adjudicated in the MAA arbitration. Micoperi also argued that it faced irreparable harm in the "imminent threat of an arbitral award" that reflects only "one half of the parties' dispute" (Docket No. 1, ¶ 1). CHM filed an Opposition to Micoperi's Motion for a Temporary Restraining Order on February 17, 2015 (Docket No. 12). Both parties appeared before the Court on February 18, 2015, for a hearing on Micoperi's Motion for injunctive relief (Docket No. 11, 14).

After reviewing and carefully considering the parties' written submissions and oral arguments, and for the reasons set forth on the record at the hearing and below, Micoperi's Motion for a Temporary Restraining Order and a Preliminary Injunction staying the MAA arbitration is DENIED. It is further ordered that Micoperi's Petition to Compel Arbitration should be DISMISSED, as discussed at the hearing, and for the reasons set forth below in Part III(A).

II. LEGAL STANDARD

In considering a motion for a preliminary injunction, a district court must consider: "(1) the plaintiff's likelihood of success on the merits; (2) the potential for irreparable harm in the absence of an injunction; (3) whether issuing an injunction will burden the defendants less than denying an injunction would burden the plaintiffs; and (4) the effect, if any, on the public interest.'" Gonzalez-Droz v. Gonzalez-Colon, 573 F.3d 75, 79 (1st Cir. 2009) (quoting Boston Duck Tours, LP v. Super Duck Tours, LLC, 531 F.3d 1, 11 (1st Cir. 2008)).[1]

The movant's likelihood of success on the merits and a showing of irreparable harm are the two most important factors in this analysis. Gonzalez-Droz, 573 F.3d at 79. In addition, the First Circuit often measures irreparable harm "on a sliding scale, working in conjunction with a moving party's likelihood of success on the merits, ' such that [t]he strength of the showing necessary on irreparable harm depends in part on the degree of likelihood of success shown.'" Braintree Labs., Inc. v. Citigroup Global Markets Inc., 622 F.3d 36, 42-43 (1st Cir. 2010). It is the movant's burden to demonstrate probability of success on the merits. See Lancor v. Lebanon Housing Auth., 760 F.2d 361, 363 (1st Cir. 1985). Similarly, the burden of showing that a denial of preliminary relief is likely to cause irreparable harm "rests squarely upon the movant." Gonzalez-Droz, 573 F.3d at 79 (internal quotations and citation omitted).

III. DISCUSSION

A. Likelihood of Success on the Merits

Micoperi has not met its burden of showing that it is likely to succeed on the merits of its Petition to Compel Arbitration. Indeed, the facts establish just the opposite-that Micoperi will not succeed on the merits. The ultimate relief sought by Micoperi is an order from this court compelling the parties' "entire dispute" to be arbitrated in the ongoing MAA arbitration, premised upon a finding by the court that Micoperi's counter-claims against CHM are arbitrable (Docket No. 1, p. 7). Micoperi is unlikely to prevail on the issue of arbitrability, and further, the issue is not properly before the court because (1) the parties contractually agreed to submit all disputes, including those concerning the arbitrator's jurisdiction, to the arbitrator; and (2) the arbitrator has already considered and ruled upon this issue in his January 15, 2015 Interim Order (Docket No. 10, Exhibit 7).

"[W]hether an issue is subject to arbitration under an agreement containing an arbitration clause is itself presumptively a matter for the court to decide before ordering arbitration." Awuah v. Coverall N. Am., Inc., 554 F.3d 7, 10 (1st Cir. 2009) (citing First Options v. Kaplan, 514 U.S. 938, 943-44 (1995)). "However, this general rule can be qualified by agreement of the parties, " and thus, "where the parties have themselves clearly and unmistakably agreed' that the arbitrator should decide whether an issue is arbitrable, the Supreme ...


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