                                                                                                 ACCEPTED
                                                                                            03-15-00157-CV
                                                                                                   4726823
                                                                                  THIRD COURT OF APPEALS
                                                                                             AUSTIN, TEXAS
                                                                                       4/1/2015 12:31:18 PM
                                                                                           JEFFREY D. KYLE
                                                                                                     CLERK
                                  No. 03-15-00157-CV
ARAMARK UNIFORM & CAREER                    §     IN THE THIRD
                                                                         FILED IN
APPAREL, LLC,                               §                     3rd COURT OF APPEALS
         Appellant,                         §                         AUSTIN, TEXAS
                                            §     COURT OF        4/1/2015 12:31:18 PM
                                                                APPEALS
              v.                            §                       JEFFREY D. KYLE
                                                                          Clerk
                                            §
AGENTEK, INC.                               §
        Appellee.                           §     AUSTIN, TEXAS

                   APPELLANT’S MOTION TO STAY
           DISTRICT COURT PROCEEDINGS PENDING APPEAL

                             A.     INTRODUCTION

      1.     Appellant is ARAMARK UNIFORM & CAREER APPAREL, LLC;

Appellee is AGENTEK, INC.

      2.     This interlocutory appeal is from a denial of a motion to compel

arbitration and stay proceedings in Cause No. D-1-GN-14-005219, pending in the

98th Judicial District Court of Travis County, Texas. (See Notice of Appeal.) In May

2012, the Appellant here filed a claim with the American Arbitration Association

pursuant to the terms of an arbitration agreement that it believed bound the parties.

In December 2014, the Appellee filed its Original Petition in the instant action in

Travis County. In January 2015, Appellant filed its application to compel arbitration

and stay the proceedings in Travis County and also filed an Answer to the Original

Petition. On February 19, 2015, the 98th Judicial District Court heard argument on

Appellant’s application to compel arbitration and stay the proceedings, and shortly



PAGE 1                                                   APPELLANT’S MOTION TO STAY
                                         DISTRICT COURT PROCEEDINGS PENDING APPEAL
thereafter, on February 24, signed an order denying that motion, and Appellant timely

filed its notice of appeal in the district court on March 10, 2015. (See Id.)

       3.     Between the time that the district court signed its order and Appellant

filed its notice of appeal, Appellee served two sets of discovery requests on Appellant,

and has offered no indication that it intends to await the disposition of this appeal

before advancing full-ahead in the district court.

       4.     Because Appellee is moving forward with litigation in the district court,

Appellant moves this court to stay the district court proceedings pending appeal.

Texas Rule of Appellate Procedure 29.5(b) makes it clear that that district court may

not make any orders that “interfere[] with or impair[] the jurisdiction of the appellate

court or effectiveness of any relief sought or that may be granted on appeal.” Whether

the district court makes any order, however, allowing discovery to move forward in

the district court deprives Appellant of the most significant benefit of its agreement to

arbitrate – specifically the right to have disputes resolved in a more efficient and

economical fashion than traditional litigation. In order to protect this right, both the

Federal Arbitration Act (which applies to this case) and the Texas Arbitration Act

authorize litigants to seek immediate appellate review of an order denying a motion to

compel arbitration. If Appellant is forced to incur the expense of litigation before its

appeal is heard, the appeal will effectively be moot (even as this Court has obviously

attempted to expedite this and similar interlocutory appeals), and the Federal

Arbitration Act and Texas Arbitration Act’s right to appeal would be – effectively –

 PAGE 2                                                    APPELLANT’S MOTION TO STAY
                                           DISTRICT COURT PROCEEDINGS PENDING APPEAL
meaningless. As discussed below, because this appeal (i) raises serious legal issues, (ii)

Appellant will be irreparably harmed without a stay of this proceeding pending an

appeal, (iii) Appellee will not be substantially harmed by the granting of a stay, and (iv)

both the public interest in conserving judicial resources and the strong state and

federal policies in favor of arbitration weigh in favor of a stay, the balance of equities

dictate that the district court proceedings should be stayed pending this appeal.

                      B.     ARGUMENT & AUTHORITIES

       5.     Both the Federal Arbitration Act and the Texas Arbitration Act

authorize immediate appellate review of an order denying a motion to compel

arbitration or refusing a stay of litigation pending arbitration. 9 U.S.C. § 16(a)(1); Tex.

Civ. Prac. & Rem. Code §§ 171.098(a)(1), 51.016. Appellant has obviously exercised

its right to an immediate interlocutory appeal of the district court’s order denying its

application to compel arbitration and stay the district court proceedings.

       6.     There is no statute or Texas case suggesting that proceedings in the

district court are automatically stayed pending the outcome of an appeal of an order

denying a motion to compel arbitration. To the contrary, the Texas Rules of Civil

Procedure make it clear that “[w]hile an appeal from an interlocutory order is pending,

the trial court retains jurisdiction of the case . . .” and may make any other order that

is not “inconsistent with any appellate court temporary order” and that does not

“interfere[] with or impair[] the jurisdiction of the appellate court or effectiveness of

any relief sought or that may be granted on appeal.” Tex. R. App. P. 29.5. By the same

 PAGE 3                                                    APPELLANT’S MOTION TO STAY
                                           DISTRICT COURT PROCEEDINGS PENDING APPEAL
token, the “appellate court may make any temporary orders necessary to preserve the

parties’ rights until disposition of the appeal . . . .” Tex. R. App. P. 29.3.

       7.     Appellant urges that the only way to preserve the parties’ rights until

disposition of the appeal is by maintaining the status quo with an order staying any

further proceedings in the district court.

       8.     While there is no Texas authority directly on point, and this Court is not

bound by federal authority regarding the procedural aspects of this case, Roe v.

Ladymon, 318 S.W.3d 502, 510 (Tex. App. – Dallas 2010), the Texas Arbitration Act

and the Federal Arbitration Act are quite similar, and Texas courts look to federal

cases interpreting the FAA as persuasive in matters governing Texas’s own statutory

scheme, Kilroy v. Kilroy, 137 S.W.3d 780, 787 n.2 (Tex. App. – Houston [1st Dist.]

2004). And the policy behind why federal courts frequently (automatically in a

majority of federal Circuits) stay trial court proceedings pending appeals of denials of

motions to compel arbitration is identical to the policy interest here; if Appellant’s

claims are arbitrable, then the only place it should be required to continue with the

dispute resolution process is in the arbitration.

       9.     The majority of the United States Courts of Appeal to consider the issue

have held that a stay of all district court proceedings is automatic upon the filing of a

non-frivolous appeal from a denial of a motion to compel arbitration. See Ehleiter v.

Grapetree Shores, Inc., 482 F.3d 207, 215 n.6 (3d Cir. 2007); McCauley v. Halliburton Energy

Servs., Inc., 413 F.3d 1158, 1162-63 (10th Cir. 2005); Blinco v. Green Tree Servicing, L.L.C.,

 PAGE 4                                                      APPELLANT’S MOTION TO STAY
                                             DISTRICT COURT PROCEEDINGS PENDING APPEAL
366 F.3d 1249, 1251 (11th Cir. 2004); Bradford-Scott Data Corp. v. Physician Comp.

Network, Inc., 128 F.3d 504, 507 (7th Cir. 1997). Others have held that staying the case

is discretionary. See Motorola Credit Corp. v. Uzan, 388 F.3d 39, 53-54 (2d Cir. 2004);

Britton v. Co-op Banking Group, 916 F.2d 1405, 1412 (9th Cir. 1990).

       10.    Even in jurisdictions where a stay is discretionary, like the Ninth Circuit,

courts overwhelmingly find that a stay should be issued pending the appeal of a denial

of a motion to compel arbitration. See, e.g., Hunt v. Check Recovery Sys., Inc., Nos. C-05-

4993-SBA, C-06-203-SBA, 2008 WL 2468473 (N.D. Cal. June 17, 2008 (granting a

stay and noting that “California district courts frequently issue stays in an action when

there is a matter pending interlocutory appeal.”); Steiner v. Apple Computer, Inc., No. C-

07-04486-SBA, 2008 WL 1925197 (N.D. Cal. Apr. 29, 2008 (granting a stay and

noting that “almost every California district court to consider whether to stay a

matter, pending appeal of an order denying a motion to compel arbitration, has issued

a stay”).

       11.    The only way to “preserve the parties’ rights until disposition of the

appeal” is by staying the trial court proceedings in this case. If the Court finds that the

arbitration that has been pending since May 2012 is the proper forum for this dispute,

the district court’s and the parties’ resources will have been needlessly expended on

continuing preparations for trial. To force Appellant to litigate this matter while its

appeal is pending is to deprive it of the most significant benefit of the parties’

agreement to arbitrate – specifically, the right to have disputes resolved in a more

 PAGE 5                                                    APPELLANT’S MOTION TO STAY
                                           DISTRICT COURT PROCEEDINGS PENDING APPEAL
efficient and economical fashion than traditional litigation. See Trefny v. Bear Stearns Sec.

Corp., 243 B.R. 300, 309 (S.D. Tex. 1999) (“[Movant] will suffer irreparable injury

absent a stay because it will be forced to participate in discovery under court order

and its right to arbitrate the dispute will be jeopardized by such discovery.”); C.B.S.

Employees Fed. Credit Union v. Donaldson, Lufkin & Jenrette Secs. Corp., 716 F. Supp. 307,

310 (W.D. Tenn. 1989) (“If the defendants are forced to incur the expense of

litigation before their appeal is heard, the appeal will be moot, and their right to

appeal would be meaningless.”).

       12.    This question is not theoretical; Appellee has served discovery requests

on Appellant, evidencing its intent to have the district court case move forward even

as this appeal is pending.

       13.    And if the Court grants the stay, it will have no effect on Appellee.

Appellee has had the opportunity at any point after May 2012 to file its suit in the

Texas court, if it believed that the arbitration was improper and should not have been

moving forward. Appellee cannot, therefore, be heard to complain of delay, even if

this appeal had the potential to be lengthy. The reality is that this Court appears to be

treating this appeal expeditiously. And Appellant has not acted to delay any

proceeding at any point, but rather promptly filed a motion to compel arbitration, and

promptly filing a notice of appeal when that motion was denied.




 PAGE 6                                                    APPELLANT’S MOTION TO STAY
                                           DISTRICT COURT PROCEEDINGS PENDING APPEAL
                                C.     CONCLUSION

       14.    Courts across the country routinely stay district court proceedings

pending an appeal of an order denying a motion to compel arbitration. And given

Appellee’s actions in moving the litigation forward in the district court, this Court

should act to “preserve the parties’ rights until disposition of the appeal” by staying

proceedings in the district court until this Court has an opportunity to determine

whether the case should be submitted to arbitration. Even though the district court

has not yet affirmatively exercised its jurisdiction in a way that renders this appeal

meaningless, the Appellee has used the district court’s continued jurisdiction over this

matter to undermine the Appellant’s right to an immediate appeal of the denial of its

motion to compel arbitration; Appellant has been and will continue to be irreparably

harmed without a stay of these proceedings. Consequently, Appellant respectfully

///



///




 PAGE 7                                                   APPELLANT’S MOTION TO STAY
                                          DISTRICT COURT PROCEEDINGS PENDING APPEAL
requests that the Court stay any further proceedings in Cause No. D-1-GN-14-005219

in the 98th Judicial District Court of Travis County pending resolution of this appeal.

                                            Respectfully submitted,

                                            COLEMAN FROST LLP


                                            By: /s/ Daniel L. Alexander
                                            Daniel L. Alexander
                                               State Bar No. 24058225
                                            429 Santa Monica Boulevard, Suite 700
                                            Santa Monica, California 90401
                                            Tel. (310) 576-7312
                                            Fax (310) 899-1016
                                            daniel@colemanfrost.com

                                            ATTORNEYS FOR APPELLANT
                                            ARAMARK UNIFORM & CAREER
                                            APPAREL, LLC


                      CERTIFICATE OF CONFERENCE

      I hereby certify that, in accordance with Texas Rule of Appellate Procedure

10.1(a)(5), I conferred with counsel for Appellee about the merits of this Motion.

Appellee does not agree to the relief requested in this Motion.

                                            /s/ Daniel L. Alexander
                                            Daniel L. Alexander




PAGE 8                                                   APPELLANT’S MOTION TO STAY
                                         DISTRICT COURT PROCEEDINGS PENDING APPEAL
                          CERTIFICATE OF SERVICE

      I certify that on April 1, 2015, I served a copy of APPELLANT’S MOTION

TO STAY DISTRICT COURT PROCEEDINGS PENDING APPEAL on the

counsel listed below by electronic service, and the electronic transmission was

reported as complete. My e-mail address is daniel@colemanfrost.com.

W. Reid Wittliff                            Attorneys for Appellee
 reid@wittliffcutter.com                    AGENTEK, INC.
WITTLIFF CUTTER, PLLC
1803 West Avenue
Austin, Texas 78701




                                            /s/ Daniel L. Alexander
                                            DANIEL L. ALEXANDER

                                            ATTORNEY FOR APPELLANT
                                            ARAMARK UNIFORM & CAREER
                                            APPAREL, LLC
