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John v. Timberquest Park At Magic, LLC

United States District Court, D. Vermont

February 9, 2016

JOSEPH P. LITTLE JOHN, Plaintiff,
v.
TIMBERQUEST PARK AT MAGIC, LLC, and CORPORATE CHALLENGE, INC., d/b/a ADVENTURE MAS, Defendants.

OPINION AND ORDER RE: PLAINTIFF'S MOTION TO COMPEL ARBITRATION AND DEFENDANT'S MOTION FOR ENTRY OF JUDGMENT UNDER RULE 54(B) (DOCS. 83 & 91)

GEOFFREY W. CRAWFORD, JUDGE UNITED STATES DISTRICT COURT.

Plaintiff moves to compel Defendant TimberQuest Park at Magic, LLC ("TimberQuest") to arbitrate. (Doc. 83.) TimberQuest moves for entry of judgment under Federal Rule of Civil Procedure 54(b). (Doc. 91.) A hearing was held on January 28, 2016, at which time the court took the motions under advisement. For the reasons that follow, Plaintiffs Motion to Compel Arbitration is GRANTED, and TimberQuest's Motion for Entry of Judgment Under Rule 54(b) is DENIED.

I. Previous Cross-Motions for Summary Judgment

Since July 2015, this case has fallen into a certain amount of disarray. The court reviews its prior ruling and the actions of counsel before resolving the pending motions.

This is a diversity case. Plaintiff was injured while riding on a zip line course at the Magic Mountain Ski Area in Londonderry, Vermont. He has sued TimberQuest, which operates the course, and Corporate Challenge, Inc. which is alleged to have designed and constructed the course. The court resolved several motions for partial summary judgment by order dated July 21, 2015. (Doc. 67.) These included:

a. TimberQuest's request for a declaration that a $75, 000 damages cap contained in an arbitration clause within an agreement entitled "Release of Liability, Waiver of Claims, Indemnification, and Arbitration Agreement" (the "Agreement"), which Plaintiff signed before riding the zip line, is enforceable.
b. Plaintiffs cross-motion seeking to have the waiver, release, assumption of risk, and indemnity provisions of the Agreement declared void.
c. TimberQuest's cross-motion seeking dismissal of Plaintiffs claim because Plaintiff released TimberQuest from liability for negligence by signing the Agreement.

The court held that the exculpatory clause in the waiver, which would bar any claim by Plaintiff against TimberQuest, was void as against public policy. The court also held that the arbitration clause was enforceable except for the provision that required the appointment of a third arbitrator who had to be "an officer or director of any entity that operates an aerial adventure park with zip lines in the United States." (Doc. 11-1 at 1.) The court ruled that, as reformed pursuant to the severability clause, the arbitration provision was valid. The clause permitted claims of less than $75, 000 to be brought in court, but required that claims of $75, 000 or more go to arbitration. It is obvious that Plaintiffs claim is in excess of $75, 000. His medical expenses alone are approximately $1, 000, 000. Therefore, the court dismissed Plaintiffs claim against TimberQuest because it was either subject to arbitration (which was what the court expected to happen) or below $75, 000 and therefore outside the court's diversity jurisdiction. However, Plaintiffs claim against Defendant Corporate Challenge, Inc. remains pending before the court because Corporate Challenge was not a party to the Agreement.

Since the July 21, 2015 opinion issued, all three parties have continued to take part in discovery. All three attended the court-ordered early neutral evaluation which did not result in a settlement. On September 24, 2015, Plaintiff demanded arbitration. (Doc. 83-7). TimberQuest has refused to arbitrate.

II. Current Motions Before the Court

Plaintiff asks the court to compel TimberQuest to arbitrate. In response, TimberQuest argues that (1) the court does not currently have jurisdiction to compel such arbitration, (2) arbitration now would effectively deprive TimberQuest of its right to appeal the court's previous ruling on the composition of the arbitration panel, and (3) Plaintiff has waived any right to arbitrate having already used litigation to obtain a favorable ruling on a substantive issue. It asks the court to enter final judgment as to TimberQuest pursuant to Rule 54(b) of the Federal Rules of Civil Procedure.

a. Motion to Compel Arbitration

The court first considers whether there is any reason TimberQuest should not proceed to arbitration at this time. In July 2015 when the court's prior order issued, there was no demand for arbitration by either side. Plaintiff has now made such a demand. As reformed, the arbitration clause is fully enforceable under the Federal Arbitration Act ("FAA"). See 9 U.S.C. ยง 2. The court has in effect adopted ...


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