United States District Court, W.D. Virginia, Charlottesville Division
URETEK, ICR MID-ATLANTIC, INC., Plaintiff/Counterclaim Defendant,
ADAMS ROBINSON ENTERPRISES, INC., Defendant/Counterclaim Plaintiff, LIBERTY MUTUAL INSURANCE COMPANY Defendant.
Glen E. Conrad United States District Judge.
ICR Mid-Atlantic, Inc. ("Uretek") filed this action
for breach of contract, quantum meruit, and payment under the
terms of a payment bond in the Circuit Court for Albemarle
County, Virginia against Adams Robinson Enterprises, Inc.
("Adams Robinson") and Liberty Mutual Insurance
Company ("Liberty Mutual"). After the defendants
removed the case to this court on the basis of diversity
jurisdiction, the parties filed a joint motion to stay the
proceedings pending arbitration, pursuant to the Federal
Arbitration Act ("FAA"), 9 U.S.C. § 3, and the
arbitration clause in the construction subcontract between
Adams Robinson and Uretek ("Subcontract"). The
arbitration proceeded in Dayton, Ohio, as specified in the
Subcontract, and resulted in an. award favorable to Uretek.
Adams Robinson moved to vacate the award in the United States
District Court for the Southern District of Ohio, the
district encompassing Dayton, and Uretek moved in this court
to lift the stay and enter an order confirming the award.
matter is now before the court on Adams Robinson's motion
to strike Uretek's motion to confirm the arbitration
award, or alternatively, to transfer venue to the Southern
District of Ohio and stay the proceedings in this court. The
court held a hearing on the motion on September 1, 2017. For
the reasons stated, Adams Robinson's motion will be
Robinson, a Kentucky corporation with its principal place of
business in Ohio, entered into the Subcontract with Uretek, a
North Carolina corporation. Compl. ¶¶ 1, 13; Answer
¶¶ 2, 13. Pursuant to the Subcontract, Uretek
agreed to perform certain excavation work for a construction
project in Charlottesville, Virginia. Compl. ¶¶ 1,
8. The Subcontract contains the following provision requiring
Any controversy or claim arising out of or relating to this
contract, or the breach thereof, shall be settled in
accordance with the Construction Industry Arbitration Rules
of the American Arbitration Association then in force, and
shall take place in Dayton, Ohio before three arbitrators,
and judgment upon the award rendered by the arbitrators may
be entered in any court having jurisdiction thereof. In
addition, the parties specifically agree that the [sic]
consent to the jurisdiction of the state and federal courts
located in Dayton, Ohio.
Confirm Arbitration Award, Ex. A ("Subcontract")
Robinson also secured a payment bond ("the Payment
Bond") from Liberty Mutual, a Massachusetts corporation,
in accordance with Va. Code § 2.2-4337. Compl. ¶
10. The Payment Bond purports to make Adams Robinson and
Liberty Mutual jointly and severally liable for the cost of
labor, materials, and equipment furnished for the
construction project. Id., Ex.A ¶1.
December 2015, Uretek filed a complaint in the Circuit Court
for Albemarle County, Virginia, asserting a claim for breach
of contract, or alternatively, quantum meruit, against Adams
Robinson and a claim for payment under the terms of the
Payment Bond against Adams Robinson and Liberty Mutual. Adams
Robinson removed the action to this court, where it filed an
answer, which included the affirmative defense that the
claims in the complaint were subject to the Subcontract's
arbitration clause and a counterclaim for breach of contract.
Liberty Mutual separately filed an answer.
February 11, 2016, Adams Robinson filed a demand for
arbitration, and on February 29, 2016, the defendants filed a
motion, with Uretek's consent, to stay the proceedings in
this court pending arbitration. On March 4, 2016, the court
granted the motion and stayed the action pending the
conclusion of the arbitration.
December 2016, the parties filed a joint status report with
the court, which stated that Adams Robinson and Uretek had
proceeded with arbitration, that they had a hearing set for
February 21, 2017 in Dayton, Ohio, and that the parties would
update the court at the conclusion of the arbitration. Joint
Status Report ¶¶ 2-3, ECF No. 14. During the
hearing, the arbitration panel received evidence on whether
either Adams Robinson or Uretek had breached the Subcontract
and whether Adams Robinson had wrongfully terminated the
Subcontract. See Mot to Confirm Arbitration Award, Ex. B at
March 24, 2017, the arbitration panel issued a standard award
in Uretek's favor. Id. The panel ruled that
Adams Robinson had properly terminated the Subcontract, but
had violated the implied covenant of good faith and fair
dealing applicable to all contracts under Ohio law.
Id. at 5-6.
18, 2017, Adams Robinson filed an action in the Southern
District of Ohio, seeking an order vacating the arbitration
award. Adams Robinson Enterprises, Inc. v. Uretek, ICR
Mid-Atlantic, Inc.. No. 3:17-cv-00178 (S.D. Ohio, PACER
No. 1). Liberty Mutual is not a party to that action.
responding in the Southern District of Ohio, on June 14,
2017, Uretek moved in this court to lift the stay, confirm
the arbitration award, and enter judgment against Adams
Robinson and Liberty Mutual pursuant to the award and the
Payment Bond. Relying on the forum selection clause contained
in the Subcontract's arbitration provision and the
first-to-file rule, Adams Robinson moved to strike
Uretek's motion to confirm the arbitration award.
Alternatively, Adams Robinson moved to transfer venue to the
Southern District of Ohio pursuant to 28 U.S.C. §
1404(a). On July 5, 2017, Uretek filed a brief in this court,
which it labeled as a reply to Adams Robinson's motion to
strike or to transfer. Adams Robinson has filed no response.
completing briefing in this court, Uretek moved to dismiss
Adams Robinson's action in the Southern District of Ohio
under the first-to-file rule, or alternatively, to transfer
venue to this court pursuant to 28 U.S.C. § 1404(a).
Adams Robinson. No. 3:14-cv-00178, PACER No. 6 at
4-12. On August 29, 2017, the parties completed briefing on
Uretek's motion pending in the Southern District of Ohio.
The parties have advised this court that the Southern
District of Ohio will issue a ruling on the briefs without
holding a hearing.
September 1, 2017, the parties appeared before this court for
a hearing on Adams Robinson's motion to strike or to