United States District Court, E.D. Louisiana
ORDER & REASONS
E. Fallon United States District Judge.
the Court is Third Party Defendant Cosentini Associates,
Inc.'s motion to Compel Arbitration and to Dismiss Third
Party Plaintiff John T. Campo & Associates, Inc.'s
Complaint against it, or Alternatively to Stay the Action
Pending Arbitration. R. Doc. 111. John T. Campo &
Associates, Inc. (“Campo”) has filed an
opposition. R. Doc. 120. Cosentini Associates, Inc.
(“Cosentini”) has filed a reply in support of its
motion. R. Doc. 123. Having considered the parties'
arguments and the applicable law, the Court is now ready to
case arises out of the claims of Plaintiff Cotton Exchange
Investment Properties, LLC (“CEIP”), which
alleges its hotel property was damaged by water and moisture
exposure as a result of faulty renovations. R. Doc. 1 at 1;
R. Doc. 88 ¶ 9. Plaintiff contends that in January 2014,
Supreme Bright New Orleans LLC (“Supreme
Bright”), which at the time owned the hotel, contracted
with Xcel Air Conditioning Services, Inc.
(“Xcel”) to provide HVAC services, including the
maintenance of the hotel's cooling tower, roof top units,
and chilled water pumps. Id. at 3. That same month,
Supreme Bright entered into a contract with Campo, whereby
Campo would provide architectural, design, and engineering
services. Id. at 4. A few months later, Supreme
Bright contracted with Commercial Renovation Services, Inc.
(“CRS”) to serve as general contractor for the
project. Id. at 2.
2015, Pacific Hospitality Group (“PHG”) bought
the hotel and assumed the rights to all three contracts. R.
Doc. 1 at 3. PHG subsequently assigned its rights, title, and
interest in the purchase to Plaintiff, including the
contracts with Xcel, Campo, and CRS. R. Doc. 1 at 4.
Plaintiff alleges Xcel's defective or faulty workmanship
caused serious water/moisture damage to the hotel due to
exposed chilled water piping, missing or improperly sealed
insulation, and cracked or leaking draining pans. R. Doc. 23
at 7. Plaintiff alleges it had to close the hotel and incur
damages from loss of use and repairs due to this extensive
damage. R. Doc. 23 at 6. Based on these allegations,
Plaintiff filed suit against Xcel, Campo, and CRS on December
16, 2016, bringing breach of contract and negligence claims
against all three Defendants and breach of warranty of good
workmanship claims against CRS and Campo. R. Doc. 23 at
26, 2018, Campo filed a third-party demand against Cosentini
alleging Cosentini provided the architectural plans for the
hotel renovation and is therefore liable to defend and/or
indemnify Campo for any claims arising from the use of
Cosentini's architectural plans. R. Doc. 88. Campo
alleges that on or about August 14, 2013, Cosentini submitted
a proposal to Campo “to provide MEP/FP engineering
design services” for the hotel's renovation (the
“Proposal”). Id. at 2. Pursuant to the
Proposal, Campo alleges that,
[i]n the event that any party proves that the MEP/FP plans,
drawings and/or specifications were inadequate or
insufficient, or that any alleged damage was caused by the
MEP /FP design and/or design services related to MEP/FP
design, which is specifically denied, Cosentini is in breach
of the Cosentini Proposal by failing to provide engineering
services in accordance with the Cosentini Proposal and/or in
accordance with the standard of care owed by a MEP/FP
engineer in this locale.
Id. at 4.
October 10, 2018, Cosentini filed the instant motion seeking
to compel arbitration pursuant to the terms of the Proposal
as well as a motion to dismiss the third-party demand, or in
the alternative, to stay the proceedings pending arbitration.
R. Doc. 111.
motion, Cosentini argues the Proposal's arbitration
clause requires Campo to arbitrate the claims Campo brings
against it. R. Doc. 111-1. In support of its motion,
Cosentini points to the Proposal, which it attached to its
motion, and contends that, because: (1) the arbitration
agreement contained in the Proposal is valid and enforceable
and (2) Campo's claims against it are subject to the
arbitration agreement's provisions, the Federal
Arbitration Act (“FAA”) requires Campo's
claims be resolved by arbitration. Id.
opposition, Campo first argues that, because Cosentini's
motion references matters outside of the pleadings, namely
the Proposal, the Court must treat Cosentini's motion as
one seeking summary judgment. R. Doc. 120 at 3. Second, Campo
submits the Court should not consider the Proposal Cosentini
attached to its motion, as “Cosentini failed to submit
any affidavit authenticating the purported Cosentini Proposal
as a true and correct copy of the agreement between the
parties.” Id. at 4. Finally, Campo contends
the arbitration provision contained in the Proposal does not
apply to a third-party's claims of professional
negligence, such as CEIP's claims against Campo, which
underlie Campo's third-party demand against Cosentini.
LAW & ANALYSIS
initial matter, the Court addresses Campo's threshold
arguments that: (1) the Court may not consider the Proposal,
and (2) if the Court does consider the Proposal,