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Moran v. U.S. Bank

March 30, 2007

THOMAS MORAN, II, RECEIVER OF THE ASSETS OF LIFETIME CAPITAL, INC., AND CERTAIN AFFILIATED PERSONS AND ENTITIES, PLAINTIFF,
v.
U.S. BANK, N.A., DEFENDANT.



The opinion of the court was delivered by: Judge Walter Herbert Rice

ENTRY SUSTAINING IN PART AND OVERRULING IN PART PLAINTIFF'S OBJECTIONS TO REPORT AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE (DOC. #23); REPORT AND RECOMMENDATIONS (DOC. #22) ADOPTED, WITH ONE MINOR EXCEPTION; DEFENDANT'S MOTION TO DISMISS OR, IN THE ALTERNATIVE, TO COMPEL ARBITRATION (DOC. #12) SUSTAINED IN PART AND OVERRULED IN PART; PARTIES ORDERED TO ARBITRATE DISPUTE; CAPTIONED CAUSE STAYED PENDING ARBITRATION

After having conducted a de novo review, as mandated by 28 U.S.C. § 636(b)(1), this Court concludes that, for the reasons set forth in the Report and Recommendations of Magistrate Judge Sharon Ovington, the claims of the Plaintiff must be resolved through arbitration. However, given the preference, reflected in 9 U.S.C. § 3, that a court stay, rather than dismiss a case it has ordered to be arbitrated, the Court cannot accept Judge Ovington's recommendation that the captioned cause be dismissed.*fn1 Accordingly, the Court sustains in part and overrules in part the Plaintiff's Objections to the Report and Recommendations (Doc. #23). The Objections are sustained, as they relate to the request that this litigation be stayed rather than dismissed. Otherwise, they are overruled. Judge Ovington's Report and Recommendations (Doc. #22) are adopted, with the minor exception of the recommendation that this litigation be dismissed. The Defendant's Motion to Dismiss or, in the alternative, to Compel Arbitration (Doc. #12) is sustained, as it relates to the request to compel, and overruled, as it pertains to dismissal.*fn2 The parties are ordered to proceed to arbitration, and this litigation is stayed pending the resolution of such proceedings.

The captioned cause is found suitable for administrative processing.

WALTER HERBERT RICE, JUDGE UNITED STATES ...


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