United States District Court, N.D. Oklahoma
OPINION AND ORDER
V. HAGAN, UNITED STATES DISTRICT JUDGE.
before the Court are defendant Sherwood Construction Co.,
Inc's motions to compel arbitration, and to stay
proceedings (Dkt. ## 10, 11). On December 10, 2018, plaintiffs
Timothy Herndon and Kerri Herndon filed a petition (Dkt. #
2-1) in the District Court of Creek County, Oklahoma,
alleging three causes of action: (1) breach of contract for
failure to pay for waste material; (2) breach of contract for
failure to construct a berm; (3) and negligence. Defendant
removed the action to this Court on January 16, 2019. Dkt. #
2. On January 25, 2019, defendant filed its motions to compel
arbitration and to stay proceedings (Dkt. ## 10, 11). On
February 15, 2019, plaintiffs filed a first amended complaint
(Dkt. # 14), effectively dismissing their breach of contract
claims and proceeding solely on the negligence claim. That
same day, plaintiffs filed a response in opposition to
defendant's motion (Dkt. # 15). Defendant filed a reply
(Dkt. # 18).
2017, the Oklahoma Turnpike Authority (OTA) hired defendant
to provide construction services for two projects on the
Turner Turnpike. Dkt. # 10, at 1. Defendant required the use
of additional property for the disposal of rock, concrete,
and earthen material created during its work on the projects.
Id. at 2. On August 21, 2017, defendant entered into
an agreement with plaintiffs, pursuant to which defendant
would have the right of ingress and egress onto property
owned by plaintiffs for the purpose of disposing such
materials. Id. at 1. The agreement defines the work
to be performed by defendant as follows:
3) DEFINING THE WORK.
Waste material will be placed in areas in or adjacent to the
pond located on said property. Gravel from the existing
driveway will be removed, stockpiled, and replaced on the new
alignment upon completion of the work.
Dkt. # 10-1, at 1-2. Further, the agreement provides that
“Sherwood will coordinate with OWNER [(plaintiffs)] and
OWNER's contractor on the exact location of dirt
placement.” Id. at 3. In addition, the parties
amended the agreement by hand to include two additional
obligations under the contract:
Sherwood agrees to pay owner .20 ¢ [sic] per cubic yard
for waste material.
Sherwood agrees to build a berm around driveway between
turnpike to serve as a sound barrier. Approx 6'-7'
Id. Finally, the agreement provides that
[a]ll claims, disputes and other matters in question arising
out of, or relating to, this agreement or the breach thereof
shall be decided by arbitration in accordance with the
Construction Industry Arbitration Rules of the American
Arbitration Association then pertaining. This agreement to
arbitrate shall be specifically enforceable under the
prevailing arbitration law. The award rendered by the
arbitrators shall be final, and judgment may be entered upon
in any court having jurisdiction thereof.
Id. at 2. All parties signed the agreement and
initialed the handwritten amendments. Id. at 3-4.
Federal Arbitration Act (FAA), 9 U.S.C. § 1 et
seq.,  represents a strong public policy in favor
of arbitration, and states that a “written provision in
any . . . contract evidencing a transaction involving
commerce to settle by arbitration a controversy thereafter
arising out of such contract . . . shall be valid,
irrevocable, and enforceable . . . .” 9 U.S.C. §
2; Stolt-Nielsen S.A. v. AnimalFeeds Int'l
Corp., 559 U.S. 662 (2010); Vaden v. Discover
Bank, 556 U.S. 49, 58 (2009). A motion to compel
arbitration calls for a two-step inquiry concerning the
arbitrability of the dispute: (1) whether there is a valid
arbitration agreement, and (2) whether the particular dispute
falls within the scope of that ...