United States District Court, D. Connecticut
RULING RE: MOTION TO COMPEL ARBITRATION (DOC. NO. 1)
AND MOTION TO DISMISS (DOC. NO. 17)
C. HALL, UNITED STATES DISTRICT JUDGE.
case initially came before the court pursuant to a Motion to
Compel Arbitration (Doc. No. 1) filed by the plaintiff,
Doctor's Associates, Inc. (“DAI”), against
the defendant, Ivars Repins (“Repins”). DAI
sought this court's order compelling arbitration of
claims arising out of a franchise agreement entered into by
DAI, the franchisor of Subway™ restaurants, and Repins,
a franchisee. On April 6, 2017, Repins filed a document
initially styled on the docket as “Answer to
Complaint” (Doc. No. 17). On May 4, 2017, this court
issued a Ruling (Doc. No. 18) on DAI's Motion to Compel
as well as a Motion for Permanent Injunction (Doc. No. 3)
filed by DAI. That Ruling granted DAI's Motion to Compel
and denied DAI's Motion for Permanent
Injunction.Pursuant to that Ruling, judgment entered
in favor of DAI and the above-captioned case was closed.
See Judgment (Doc. No. 19).
about October 19, 2017, Repins contacted the District of
Connecticut Clerk's Office to ascertain the outcome of
this case, asserting that he had never received notice of the
case's outcome. The court mailed Repins the Ruling (Doc.
No. 18) and Judgment (Doc. No. 19) on October 19, 2017.
Subsequently, Repins filed a Motion for Relief from Judgment
(Doc. No. 20) on October 27, 2017, specifically requesting
that this court grant him leave to appeal despite the appeal
deadline having expired, in light of the fact that he did not
receive notice of the Judgment entered in this
case. Mot. for Relief from Judgment (Doc. No.
20) at 2.
receipt of Repins's Motion for Relief from Judgment, the
court reviewed the filings and identified that docket number
17, styled on the docket as “Answer to Complaint,
” actually contains two separately styled documents:
(1) “Defendant's Answer / Response to Doctor's
Associates, Inc. (‘Subway') Petition to Compel
Arbitration” (Doc. No. 17) at 1; and (2)
“Defendant's Memorandum in Support of Motion to
Dismiss Plaintiff's Petition for Lack of Subject Matter
Jurisdiction / Alternately for other relief” (Doc. No.
17) at 6. Upon discovering this error, the court issued an
Order to Show Cause (Doc. No. 22) to DAI why the Judgment
should not be vacated to permit the court to rule on
Repins's Motion to Dismiss. On November 17, 2017, DAI
filed a Response (Doc. No. 23) to the court's Order to
Show Cause stating that it had no objection to the court
vacating its Judgment and ruling on Repins's Motion to
Dismiss. Absent objection, the court vacated its Judgment of
May 4, 2017. See Order (Doc. No. 24). The court also
directed to the Clerk's Office to rename document number
17 “Motion to Dismiss / Answer to
reasons that follow, Repins's Motion to Dismiss (Doc. No.
17) is denied and DAI's Motion to Compel Arbitration
(Doc. No. 1) is granted in part and denied in part.
13, 2002, the parties signed Franchise Agreement Number 903
for the operation of a Subway restaurant. Ex. A, Mot. to
Compel (Doc. No. 1-1). Eight years later, on September 22,
2010, they signed Franchise Agreement Number 25752 (Doc. No.
1-2). Ex. B, Mot. to Compel (Doc. No. 1-2). Franchise
Agreement Number 25752 states that it “has revised
provisions regarding [topics including] dispute resolution,
” and that Repins “agree[s] to accept the
provisions set forth in [sections including] Paragraph[ ]
10” in Franchise Agreement Number 25752 “to the
amendment of all of [Repins's] other existing Franchise
Agreements with [DAI] to include these provisions.”
Id. at ¶ 14.
10 of Franchise Agreement Number 25752 governs arbitration,
and provides the following:
Any dispute, controversy or claim arising out of or relating
to this Agreement or the breach thereof shall be settled by
arbitration. . . .
The parties agree that Bridgeport, Connecticut shall be the
site for all arbitration hearings held under this Paragraph
10 . . . .
If you breach the terms of your Sublease, the Sublessor,
whether us or our designee, may exercise its rights under the
Sublease, including your eviction from the franchised
location. Any action brought by the Sublessor to enforce the
Sublease (which provides that a breach of the Franchise
Agreement is a breach of the Sublease), is not to be
construed as an arbitrable dispute. . . .
You agree that our Affiliates, shareholders, directors,
officers, employees, agents and representatives, and their
affiliates, shall not be liable nor named as a party in any
arbitration or litigation proceeding commenced by you where
the claim arises out of or relates to this Agreement. You
further agree that the foregoing parties are intended
beneficiaries of the arbitration clause; and that all claims
against them that arise out of or relate to this Agreement
must be resolved with us through arbitration . . . .
Any disputes concerning the enforceability or scope of the
arbitration clause shall be resolved pursuant to the Federal
Arbitration Act, 9 U.S.C. § et seq.
(“FAA”), and the parties agree that the FAA
preempts any state law restrictions (including the site of
the arbitration) on the enforcement of the arbitration clause
in this Agreement. . . . If, prior to the Arbitrator's
final decision, either we or you commence an action in any
court of a claim that arises out of or relates to this
Agreement (except for the purpose of enforcing the
arbitration clause or as otherwise permitted by this
Agreement), that party will be responsible for the other
party's expenses of enforcing the arbitration clause,
including court costs, arbitration filing fees and other
costs and attorney's fees.
If a party [ ] commences action in any court, except to
compel arbitration, or except as specifically permitted under
this agreement, prior to an arbitrator's final decision .
. . then that party is in default of this Agreement. . . .
The defaulting party will be responsible for all expenses
incurred by the other party, including lawyers' fees.
Id. ¶ 10.
August 12, 2015, a Wisconsin court granted a judgment of
eviction to Subway Real Estate, LLC (“SRE”)
against Repins, in a case entitled Subway Real Estate,
LLC, v. Repins, Case No. 15SC017457 (“the
Wisconsin Lawsuit”). See Ex. C, Mot. to Compel
(Doc. No. 1-3) at 2. SRE is ...