United States District Court, S.D. Mississippi, Western Division
RICHLAND EQUIPMENT COMPANY, INC. PLAINTIFF
DEERE & COMPANY DEFENDANT
MEMORANDUM OPINION AND ORDER
STARRETT, UNITED STATES DISTRICT JUDGE.
reasons below, the Court denies
Plaintiff's Motion for Injunction Pending Appeal  and
denies as moot Plaintiff's Motion for
Status Conference .
case arises from dealer agreements between Plaintiff, a
retailer in tractors and other outdoor/agricultural
equipment, and Defendant, a manufacturer of such equipment.
Plaintiff alleges that Defendant threatened to unlawfully
terminate the dealer agreements and discontinue supplying
inventory. Plaintiff alleges that termination of the dealer
agreements will cause the closure of its business.
Accordingly, Plaintiff filed this lawsuit, asserting a wide
variety of claims.
18, 2017, the Court denied Plaintiff's Motion for a
Temporary Restraining Order  on the basis that Plaintiff
had not certified in writing his efforts to provide notice to
Defendant and/or its attorney and the reasons why notice and
a hearing should not be required. See Fed. R. Civ.
P. 65(b)(1). But after a telephone conference with the
attorneys of record, the Court set a preliminary injunction
hearing for September 25, 2017. The parties agreed to
maintain the status quo pending the Court's ruling on
Plaintiff's request for a preliminary injunction.
31, 2017, Defendant filed a Motion to Compel Arbitration
, based on an arbitration provision in the most recent
dealer agreement, the Commercial Worksite Products Dealer
Agreement (“CWP DA”). On August 11, 2017,
Plaintiff filed an Amended Complaint  which, in its
words, “omitted any claims arising under or related
to” the CWP DA. Three days later, Plaintiff responded
 to the Motion to Compel Arbitration, arguing that the
Motion to Compel Arbitration should be denied because the CWP
DA was no longer at issue in the case, and that the claims
asserted in this case do not fall within the scope of the
arbitration agreement. In reply, Defendant argued that an
arbitration clause contained in a contract does not terminate
merely because the contract has terminated, and that the
arbitrator must determine the scope of the arbitration
September 13, 2017, the Court granted  Defendant's
Motion to Compel Arbitration . The Court found that
“an arbitration agreement contained in a contract does
not terminate merely because the contract has terminated,
” Consorcio Rive v. Briggs of Cancun, Inc., 82
F. App'x 359, 363 (5th Cir. 2003) (citing Nolde Bros.
v. Bakery & Confectionary Workers Union, 430 U.S.
243, 249-55, 51 L.Ed.2d 300, 97 S.Ct. 1067 (1977)),
a dispute should still be referred to arbitration pursuant to
an expired arbitration agreement if it falls within the scope
of the agreement. Tristar Fin., 97 F.
App'x at 466. Moreover, the Court found that the parties
had expressly incorporated arbitration rules that indicated
the parties' intent to delegate the issue of
arbitrability to the arbitrator. See Kubala v. Supreme
Prod. Servs., 830 F.3d 199, 204 (5th Cir. 2016);
Petrofac, Inc. v. DynMcDermott Petroleum Operations
Co., 687 F.3d 671, 675 (5th Cir. 2012). Therefore, the
Court concluded that the parties had agreed to delegate all
questions concerning the scope of the arbitration clause to
the arbitrator. It granted Defendant's motion, ordered
the parties to submit to arbitration, and dismissed the case
September 15, 2017, Plaintiff filed a Notice of Appeal 
and a Motion for Injunction Pending Appeal . The motion
is ripe for the Court's review.
Court considers four factors when considering a request for a
stay of an order or judgment pending appeal: “(1)
whether the stay applicant has made a strong showing that he
is likely to succeed on the merits; (2) whether the applicant
will be irreparably injured absent a stay; (3) whether
issuance of the stay will substantially injure the other
parties interested in the proceeding; and (4) where the
public interest lies.” Planned Parenthood of
Greater Tex. Surgical Health Servs. v. Abbott, 734 F.3d
406, 410 (5th Cir. 2013). “[O]n motions for stay
pending appeal the movant need not always show a
‘probability' of success on the merits; instead,
the movant need only present a substantial case on the merits
when a serious legal question is involved and show that the
balance of equities weighs heavily in favor of granting the
stay.” Ruiz v. Estelle, 666 F.2d 854,
856 (5th Cir. 1982). But “likelihood of success remains
a prerequisite in the usual case . . . .” Id.
If the movant has not demonstrated a likelihood of success on
the merits, the Court will grant a stay “[o]nly if the
balance of equities (i.e. consideration of the other three
factors) is . . . heavily tilted in the movant's favor .
. ., and, even then, the issue must be one with patent
substantial merit.” Id. at 857. The party
seeking the injunction has the burden of proof. Id.
at 856. “A stay is not a matter of right, even if
irreparable injury might otherwise result to the
applicant.” Abbot, 734 F.3d at 410.
other things, Plaintiff argues that the Court erred insofar
as the claims asserted in the Amended Complaint do not arise
under the CWP DA, which contained the arbitration clause.
Plaintiff now argues that the Court is not required to send
the case to an arbitrator for a gateway determination of
arbitrability because Defendant's argument that the case
falls within the scope of the arbitration clause is
Court noted in its previous opinion: “Just as the
arbitrability of the merits of a dispute depends upon whether
the parties agreed to arbitrate that dispute, so the question
‘who has the primary power to decide arbitrability'
turns upon what the parties agreed about that
matter.” Brittania-U Nig., Ltd. v. Chevron USA,
Inc., 866 F.3d 709, 2017 U.S. App. LEXIS 14692, at *7
(5th Cir. 2017). The Court must determine whether the
arbitration agreement contains a delegation clause, “a
provision in an arbitration agreement that transfers the
power to decide threshold questions of arbitrability to the
arbitrator.” Reyna v. Int'l Bank of
Commerce, 839 F.3d 373, 378 (5th Cir. 2016). The
question is whether the agreement “evinces an intent to
have the arbitrator decide whether a given claim must be
arbitrated.” Brittania-U, 2017 U.S. App. LEXIS
14692 at *8. “If there is a delegation clause, the
motion to compel arbitration should be granted in almost all
cases.” Reyna, 839 F.3d at 378.
Plaintiff notes, “[t]he law of this circuit does not
require all claims to be sent to gateway arbitration merely
because there is a delegation provision.” Douglas
v. Regions Bank, 757 F.3d 460, 463 (5th Cir. 2014).
“If the argument that the claim at hand is within the
scope of the arbitration agreement is ‘wholly
groundless, '” then the Court need not subject the
parties to “unnecessary and needlessly expensive
arbitration.” Id. at 464. “An assertion
of arbitrability is not ‘wholly groundless' if
‘there is a legitimate argument that th[e] arbitration
clause covers the present dispute, and, on the other hand,
that it does not.'” IQ Prods. Co. v. WD-40
Co., No. 16-20595, 2017 U.S. App. LEXIS 17744, at *10
(5th Cir. Sept. 13, 2017) (quoting Douglas, 757 F.3d
at 463) (alteration original). “So long as there is a