Expofrut S.A. v. M/V Aconcagua

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
9-28-2004
Expofrut SA v. M/V Aconcagua
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-3205
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Recommended Citation
"Expofrut SA v. M/V Aconcagua" (2004). 2004 Decisions. Paper 323.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/323
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 03-3205 and 03-3357
EXPOFRUT S.A.; BOCCHI AMERICAS ASSOCIATES
v.
M/V ACONCAGUA, HER ENGINES,
MACHINERY, TACKLE, FUEL,
APPAREL, ETC.; SHENLONG
MARITIME PRIVATE LTD.;
ARCTIC REEFERS A.S.
Expofrut S.A.,
Appellant in No. 03-3205
EXPOFRUT S.A.; BOCCHI AMERICAS ASSOCIATES
v.
M/V ACONCAGUA, HER ENGINES, MACHINERY,
TACKLE, FUEL, APPAREL, ETC.; SHENLONG
MARITIME PRIVATE LTD.; ARCTIC REEFERS A.S.
Bocchi Americas Associates,
Appellant in No. 03-3357
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civ. No. 02-cv-01276)
Honorable Cynthia M. Rufe, District Judge
Submitted under Third Circuit LAR 34.1(a)
September 24, 2004
BEFORE: MCKEE, ALDISERT and GREENBERG, Circuit Judges
(Filed: September 28, 2004)
OPINION OF THE COURT
GREENBERG, Circuit Judge.
This matter comes on before this court on consolidated appeals by ExpoFrut, S.A.
and Bocchi America Associates, the plaintiffs in this case, from an order entered on July
1, 2003, denying their motion for a stay of this action pending arbitration. The district
court had jurisdiction in this admiralty action under 28 U.S.C. § 1333 and we have
jurisdiction under 9 U.S.C. § 16(a)(1)(A). We will exercise plenary review on this appeal
as we are deciding the case through the application of legal principles on the basis of
essentially undisputed facts. See Hoxworth v. Blinder, Robinson & Co., 980 F.2d 912,
925 (3d Cir. 1992).
The district court in its July 1, 2003 order explained the reasons for denying the
stay as follows:
On March 13, 2002, Plaintiff filed its Complaint praying for
complete relief with no reference of its intent to arbitrate. Plaintiff filed
various ex parte pleadings to affect the arrest and attachment of the
Aconcagua without any mention of its intent to arbitrate the instant dispute.
To date, the parties have engaged in extensive discovery from the time of
the filing of Plaintiff’s Complaint until its notice to Defendants of its intent
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to arbitrate on February 28, 2003, nearly one year after the filing of the
Complaint. In addition, Plaintiff submitted a Scheduling Information
Report and a Joint Discovery Plan to this Court with no reference of
arbitration. Plaintiff’s counsel also attended an initial scheduling
conference with the Court on February 19, 2003, with no indication that the
Plaintiff intended to seek arbitration of the disputes. Therefore, due to
Plaintiff’s substantial delay in noticing the Defendants of its intent to seek
arbitration the Court finds that Plaintiff has waived its right to arbitration.
See Hoxworth v. Blinder Robinson & Co., 980 F.2d 912 (3d Cir. 1992)
(explaining that waiver is appropriate where the ‘demand for arbitration
came long after the suit commenced and when both parties had engaged in
extensive discovery’); Perry v. Sonic Graphic Sys., 94 F. Supp.2d 623, 625
(E.D. Pa. 2000) (holding that defendant waived its right to arbitration where
there was substantial delay in asserting its arbitration rights thereby causing
prejudice to Plaintiff).
App. at 197. In addition, after the appellants filed their notices of appeal the district
court, pursuant to Third Circuit Rule 3.1, filed an opinion on August 11, 2003, further
explaining the reasons for its conclusions reiterating that the appellants waived their right
to seek arbitration and that it would prejudice the appellees to stay the district court action
at this time.
After review of this matter we find no merit to this appeal. While we recognize
that appellants could commence this case in the district court and obtain preliminary
relief, as they did, without at that time waiving their right to seek arbitration, overall their
conduct in this case waived the right. We also are satisfied that the scheduling order of
February 25, 2003, providing that “[a]ll parties shall have sixty days (60) from the date of
this Order to file dispositive motions regarding this Court’s jurisdiction” did not preserve
or revive appellants’ right to seek arbitration as a motion for a stay of an action pending
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arbitration is simply not the same as a motion to dismiss for want of jurisdiction. In any
event, the court by allowing a motion within a given time does not bind itself to a
particular disposition of the motion.
The order of July 1, 2003, will be affirmed.
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