                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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                                           NOT PRECEDENTIAL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



                                               3
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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