Charlotte Student Hous. DST v. Choate Constr. Co., 2018 NCBC 88.
STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION MECKLENBURG COUNTY 18 CVS 5148
CHARLOTTE STUDENT HOUSING DST; and CHARLOTTE STUDENT HOUSING LEASECO, LLC,
Plaintiffs,
v. ORDER AND OPINION ON MOTIONS TO DISMISS OR STAY CHOATE CONSTRUCTION PENDING ARBITRATION COMPANY; DINO M. PAPPAS; GEOSCIENCE GROUP; MILLER ARCHITECTURE; THE SANCTUARY AT CHARLOTTE, LLC; TONY F. MILLER; and VRETTOS PAPPAS CONSULTING ENGINEERS, P.A.,
Defendants.
1. This case arises from the construction of a student apartment complex,
known as Arcadia. Plaintiffs are Arcadia’s current owner and landlord. They have
sued the original owner, the architect, the general contractor, and two subcontractors,
alleging that numerous, serious defects in Arcadia’s design and construction have
caused millions of dollars in repairs and lost rent.
2. Two Defendants—Choate Construction Company (“Choate”) and Geoscience
Group (“Geoscience”)—believe the claims asserted against them must be resolved in
arbitration. They ask the Court to dismiss or stay the claims pending the outcome of
arbitration. For the following reasons, the Court GRANTS both motions to the
extent they seek a stay. Katten Muchin Rosenman LLP, by Richard L. Farley, Jeffrey C. Grady, and Kelsey Panizzolo, for Plaintiffs Charlotte Student Housing DST and Charlotte Student Housing LeaseCo, LLC.
Kilpatrick Townsend & Stockton LLP, by Brian G. Corgan, Elizabeth L. Winters, Hayley R. Ambler, and David K. Johnson, for Defendant Choate Construction Company.
Berman Fink Van Horn P.C., by Thomas E. Austin, Charles H. Van Horn, and Lauren S. Frisch, for Defendant The Sanctuary at Charlotte, LLC.
Smith Moore Leatherwood LLP, by Jeffrey P. MacHarg and Alexandria Hirsh, for Defendants Dino Pappas and Vrettos Pappas Consulting Engineers, P.A.
Hamilton Stephens Steele + Martin, PLLC, by Tracy T. James and Carmela Mastrianni, for Defendant Geoscience Group.
Cranfill Sumner & Hartzog LLP, by John W. Ong and Meredith A. Fitzgibbon, for Defendants Tony F. Miller and Miller Architecture.
Conrad, Judge.
I. BACKGROUND1
3. To anyone who attended college in the twentieth century, Arcadia must
sound like Shangri-La, a paradise for the modern-day student. It is a 22-acre
property, with over 200 apartments in nearly 40 buildings (variously described as
chalets, manors, and cottages). (Compl. ¶¶ 14–15, ECF No. 3; Choate Mot. to Dismiss
Ex. A, ECF No. 49.1 [“Construction Contract”].) A separate clubhouse offers a game
1 As context for the Court’s analysis, this section describes the allegations in the complaint and also the relevant facts regarding the pending motions, which are largely undisputed (though the parties draw different conclusions from them). The Court elects to make necessary findings of fact and conclusions of law at the end of this Opinion. room, study room, tanning booths, sauna, steam room, and more, with an outdoor
pool in an adjacent area. (See Compl. ¶ 48.)
4. Arcadia took nearly two years to build. Its original owner, The Sanctuary
at Charlotte, LLC (“Sanctuary”), engaged Choate to serve as general contractor, using
a standard form contract (“Construction Contract”). (See Compl. ¶¶ 16–17.) Choate
warranted that it would furnish new materials of good quality and that its work
would conform to the contract and be free from defects. The warranties became
effective upon substantial completion of the complex and ran for one year. (See
Construction Contract, General Conditions §§ 3.5, 9.8.4, 12.2.2.1.) As alleged by
Plaintiffs, Choate later issued a written, one-page Contractor Warranty “[u]pon
completion of the Project” to be effective from March 10, 2015 to March 10, 2016.
(Compl. ¶ 22; see also Choate’s Mot. to Dismiss Ex. B, ECF No. 49.2.)
5. After construction was complete, Arcadia changed hands. Sanctuary sold
the property to a third party, which in turn sold it to Plaintiff Charlotte Student
Housing DST. (Compl. ¶¶ 24, 36.) Plaintiff Charlotte Student Housing LeaseCo,
LLC became the landlord on all tenant leases. (Compl. ¶ 37.)
6. Plaintiffs now claim that, upon purchasing the property, they learned
Arcadia wasn’t paradise after all. Among other things, Plaintiffs allege they were
forced to close the clubhouse and one of the apartment buildings after discovering
major structural defects, including weak soil and water infiltration. (See Compl.
¶¶ 54, 81.) They also allege widespread mold and mildew problems due to defects in
the HVAC systems throughout Arcadia. (See Compl. ¶ 93.) When Plaintiffs notified Choate of these and other alleged defects, Choate agreed to address some but not all
of them under the terms of the Contractor Warranty. (See Compl. ¶¶ 22–23, 39–45.)
7. The unresolved disputes prompted this lawsuit. Asserting a claim for
breach of warranty, Plaintiffs attribute all of the defects to Choate’s faulty
workmanship and failure to comply with the project’s plans and specifications. (See
Compl. ¶ 131.) Plaintiffs also claim negligence on the part of several subcontractors
and service providers, including Geoscience for its role in testing soil conditions and
providing other engineering services. (See Compl. ¶¶ 153–54.) Finally, Plaintiffs
allege that Choate and Sanctuary were aware of the mold and mildew problems
before selling Arcadia but conspired to commit fraud by concealing them. (See Compl.
¶¶ 161–69.)
8. Choate and Geoscience ask the Court to dismiss or stay all claims asserted
against them on the ground that they are subject to binding arbitration. Choate relies
on the arbitration clause found in the Construction Contract between it and
Sanctuary. That clause requires claims “arising out of or related to” the Construction
Contract to be mediated and then subject to arbitration before the American
Arbitration Association (“AAA”) in accordance with its Construction Industry
Arbitration Rules (“Construction Rules”). (Construction Contract, General
Conditions §§ 15.1.1, 15.4.1.)
9. Geoscience points to its own contracts with Sanctuary, one dealing with
geotechnical subsurface exploration and the other with construction materials testing
services (“Geoscience Contracts”). Each contract includes a clause requiring, at Geoscience’s sole discretion, arbitration of “all claims or disputes” by the AAA under
its Construction Rules. (Geoscience’s Mot. to Dismiss Exs. A, B, ECF Nos. 40.1, 40.2.)
10. Plaintiffs argue that none of these contracts were assigned to them as part
of the purchase of Arcadia and that they are not attempting to enforce the contracts’
terms. Thus, Plaintiffs contend, any arbitration agreements made between Choate
and Sanctuary or Geoscience and Sanctuary are not binding on Plaintiffs.
11. The motions have been fully briefed, and the Court held a hearing on July
25, 2018. After the hearing, Choate and Geoscience supplemented the record without
objection, and Plaintiffs filed a short response. (See ECF Nos. 80, 91, 93.) The
motions are ripe for determination.
II. LEGAL STANDARD
12. The parties agree that the Federal Arbitration Act (“FAA”) governs the
resolution of these motions. (See Choate’s Mem. in Supp. Mot. to Dismiss 9, ECF No.
49 [“Choate’s Mem.”]; Geoscience’s Br. in Supp. Mot. to Dismiss 2, ECF No. 44 [“Geo.’s
Br.”]; Pls.’ Opp’n to Choate’s Mot. to Dismiss 10, ECF No. 62 [“Pls.’ Opp’n (Choate)”];
Pls.’ Opp’n to Geoscience’s Mot. to Dismiss 6, ECF No. 64 [Pls.’ Opp’n (Geo.)”].) This
is so because the relevant arbitration clauses are contained in written contracts
evidencing a transaction involving interstate commerce, specifically agreements
between multiple out-of-state entities to construct a student housing complex within
North Carolina. See 9 U.S.C. § 2; see also Allied–Bruce Terminix Cos. v. Dobson, 513
U.S. 265, 273–81 (1995) (construing “commerce” broadly to reach transactions
involving interstate commerce); Gaylor, Inc. v. Vizor, LLC, 2015 NCBC LEXIS 102, at *10–11 (N.C. Super. Ct. Oct. 30, 2015) (applying FAA to contract concerning
apartment project in North Carolina).
13. “[W]hen the FAA governs a dispute, state law fills procedural gaps in the
FAA as it is applied in state courts.” Gaylor, 2015 NCBC LEXIS 102, at *12 (quoting
Cold Springs Ventures, LLC v. Gilead Sciences, Inc., 2014 NCBC LEXIS 10, at *8
(N.C. Super. Ct. Mar. 26, 2014)). By statute, when faced with a dispute concerning a
purported agreement to arbitrate, this Court must “proceed summarily to decide the
issue and order the parties to arbitrate unless it finds that there is no enforceable
agreement to arbitrate.” N.C. Gen. Stat. § 1-569.7(a)(2). “[I]n determining the
threshold issue of whether a mandatory arbitration agreement exists, the court
necessarily must sit as a finder of fact.” Capps v. Blondeau, 2010 NCBC LEXIS 10,
at *5 n.6 (N.C. Super. Ct. Apr. 13, 2010); see also Griessel v. Temas Eye Ctr., P.C., 199
N.C. App. 314, 317, 681 S.E.2d 446, 448 (2009) (“[A]n order denying a motion to
compel arbitration must include findings of fact as to ‘whether the parties had a valid
agreement to arbitrate’ and, if so, ‘whether the specific dispute falls within the
substantive scope of that agreement.’” (citations omitted)).
III. ANALYSIS
14. This case presents a frequently recurring question: whether an arbitration
agreement may be enforced against a nonsignatory. Because arbitration is a matter
of contract, the usual rule is that “a party cannot be required to submit to arbitration
any dispute which he has not agreed so to submit.” United Steelworkers of Am. v.
Warrior & Gulf Nav. Co., 363 U.S. 574, 582 (1960). In an appropriate case, though, “a nonsignatory can enforce, or be bound by, an arbitration provision within a
contract executed by other parties.” Int’l Paper Co. v. Schwabedissen Maschinen &
Anlagen GmbH, 206 F.3d 411, 415 (4th Cir. 2000).
15. Here, the parties dispute whether Plaintiffs are bound by the arbitration
clauses in the contracts between Choate and Sanctuary and between Geoscience and
Sanctuary. Before reaching that question, though, the Court must first address who
should decide it—the Court or the arbitration panel.
A. Deciding Arbitrability
16. Although gateway questions of arbitrability are usually reserved for judicial
determination, parties can, and often do, delegate arbitrability to the arbitrator. See,
e.g., Hall v. Dancy, 2018 NCBC LEXIS 63, at *6 (N.C. Super. Ct. June 27, 2018). That
said, “[c]ourts should not assume that the parties agreed to arbitrate arbitrability
unless there is clear and unmistakable evidence that they did so.” First Options of
Chi., Inc. v. Kaplan, 514 U.S. 938, 944 (1995) (brackets and quotation marks omitted).
When there is, courts must enforce the delegation, just as they would any other term
of the parties’ arbitration agreement. See Rent-A-Center, W., Inc. v. Jackson, 561 U.S.
63, 69 (2010).
17. Choate and Geoscience present this as a straightforward case of delegation.
They contend that each arbitration clause incorporates the AAA’s Construction
Rules, which expressly delegate to the arbitrator “the power to rule on his or her own
jurisdiction, including any objections with respect to the existence, scope, or validity
of the arbitration agreement.” AAA, Construction Industry Arbitration Rules and Mediation Procedures, Rule 9(a) (Oct. 1, 2009). This language, Choate and
Geoscience contend, requires the arbitrator, not the Court, to decide whether
Plaintiffs are bound by the arbitration clauses and whether the asserted claims fall
within the scope of each. (See Choate’s Mem. 18–19; Geo.’s Br. 5.)
18. Plaintiffs respond that they never agreed to arbitrate any issue with Choate
and Geoscience, much less to arbitrate arbitrability. It is irrelevant, Plaintiffs
contend, that the arbitration clauses incorporate the AAA rules because Choate and
Geoscience made those agreements with a third party, Sanctuary. (See Pls.’ Opp’n
(Choate) 20; Pls.’ Opp’n (Geo.) 8.) Plaintiffs contend that the Court should not send
any issues to arbitration before deciding, as a threshold matter, whether Plaintiffs
are in fact bound by the arbitration clauses.
19. Plaintiffs are correct. Choate and Geoscience have pointed to evidence of
their own intent to arbitrate the issue of arbitrability, but they have not offered any
evidence that Plaintiffs shared that intent. Plaintiffs did not sign either arbitration
agreement, nor are they referenced in either. “Courts have generally found that
agreements that do not mention or reference a particular non-signatory do not clearly
or unmistakably evidence an agreement by that non-signatory to have an arbitrator
determine whether the agreement is arbitrable.” McKenna Long & Aldridge, LLP v.
Ironshore Specialty Ins. Co., 2015 U.S. Dist. LEXIS 3347, at *14–15 (S.D.N.Y. Jan.
12, 2015); see also, e.g., Kramer v. Toyota Motor Corp., 705 F.3d 1122, 1127 (9th Cir.
2013); Nat’l Union Fire Ins. Co. v. Stucco Sys., LLC, 289 F. Supp. 3d 457, 466
(S.D.N.Y. 2018); DCK World Wide, LLC v. Pacifica Riverplace, LP, 2018 U.S. Dist. LEXIS 25616, at *6 (W.D. Tex. Feb. 16, 2018); Oehme, van Sweden & Assocs., Inc. v.
Maypaul Trading & Servs., Ltd., 902 F. Supp. 2d 87, 97 (D.D.C. 2012).
20. Choate and Geoscience do not cite any contrary case law. Although they
point to the “liberal federal policy favoring arbitration agreements,” Moses H. Cone
Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24–25 (1983), that policy does not
apply to agreements to arbitrate arbitrability, see Howsam v. Dean Witter Reynolds,
537 U.S. 79, 83 (2002). In interpreting the FAA, the United States Supreme Court
presumes that parties do not intend to delegate arbitrability to the arbitrator because
presuming otherwise “might too often force unwilling parties to arbitrate a matter
they reasonably would have thought a judge, not an arbitrator, would decide.” First
Options, 514 U.S. at 945. That reasoning applies with particular force to gateway
disputes about whether a party is even bound by the arbitration clause in the first
place. See Howsam, 537 U.S. at 84.
21. The Court finds no clear-and-unmistakable evidence that Plaintiffs, as
nonsignatories, agreed to delegate arbitrability to the arbitrator. Accordingly, the
Court must decide the parties’ gateway disputes of arbitrability—whether Plaintiffs
are bound by the arbitration clauses and which claims, if any, are subject to
arbitration. See, e.g., Nat’l Union Fire Ins., 289 F. Supp. 3d at 466; DCK World Wide,
2018 U.S. Dist. LEXIS 25616, at *6; Oehme, 902 F. Supp. 2d at 97; Masefield AG v.
Colonial Oil Indus., 2005 U.S. Dist. LEXIS 6737, at *6–7 (S.D.N.Y. Apr. 18, 2005). B. Estoppel
22. The FAA does not “alter background principles of state contract law
regarding the scope of [arbitration] agreements (including the question of who is
bound by them).” Arthur Andersen LLP v. Carlisle, 556 U.S. 624, 630 (2009). Thus,
courts have long recognized a number of traditional doctrines that allow arbitration
agreements to be enforced by or against nonsignatories. These doctrines include
incorporation by reference, assumption, agency, veil piercing, and estoppel. See, e.g.,
Int’l Paper, 206 F.3d at 417; see also LSB Fin. Servs., Inc. v. Harrison, 144 N.C. App.
542, 548–49, 548 S.E.2d 574, 579 (2001).
23. Of these doctrines, estoppel is dispositive here. In short, “[a] nonsignatory
is estopped from refusing to comply with an arbitration clause when it receives a
direct benefit from a contract containing an arbitration clause.” Int’l Paper, 206 F.3d
at 418 (quotation marks omitted). It would be manifestly unfair to permit a party to
take the benefit of the contract “despite [its] non-signatory status but then, during
litigation, attempt to repudiate the arbitration clause in the contract.” Hellenic Inv.
Fund, Inc. v. Det Norske Veritas, 464 F.3d 514, 517–18 (5th Cir. 2006); see also Int’l
Paper, 206 F.3d at 418. That is what Plaintiffs seek to do here, and they are therefore
estopped from refusing to arbitrate their claims against Choate and Geoscience.
1. Claims Asserted Against Choate
24. Plaintiffs contend they have received no benefit from the Construction
Contract because that contract was not assigned to them as part of the purchase of
Arcadia and because their claims against Choate do not arise from it. (See Pls.’ Opp’n (Choate) 11.) Plaintiffs insist that their claim for breach of warranty is instead based
on the Contractor Warranty, a standalone document that does not incorporate the
Construction Contract or its arbitration clause. (See Pls.’ Opp’n (Choate) 5, 11–12.)
The conspiracy claim, Plaintiffs contend, sounds in tort and does not arise out of the
Contractor Warranty or the Construction Contract. (See Pls.’ Opp’n (Choate) 22–23.)
25. This argument cannot be squared with the language of the Contractor
Warranty or Plaintiffs’ own allegations. On its face, the Contractor Warranty states
that Choate performed all work “in accord with the Contract Documents”—an express
reference to the Construction Contract. (Choate’s Mot. to Dismiss Ex. B.)
Furthermore, Plaintiffs’ claim that Choate breached this warranty rests on the
allegation that it did not perform its work in accordance with “the plans and
specifications” contained within the Construction Contract. (Compl. ¶ 131; see also
Pls.’ Opp’n (Choate) 14 (conceding “the term ‘Contract Documents’ is an obvious
reference [to] the plans and specifications governing the Arcadia Construction
Project”).) Whether Plaintiffs were assigned the Construction Contract as part of the
purchase of Arcadia is therefore beside the point. They were on notice of the contract
because of the Contractor Warranty’s express reference to it. And by seeking to hold
Choate to the promise it made to Sanctuary, Plaintiffs’ claim for breach of warranty
is functionally the equivalent of enforcing the terms of the Construction Contract
itself.
26. Put simply, the Contractor Warranty has no meaning apart from the
Construction Contract, and Plaintiffs cannot prove their claim that Choate breached the warranty without looking to the contract. Because their claim “can only be
determined by reference to an agreement containing an arbitration clause,” Plaintiffs
are estopped from repudiating the arbitration clause. Noble Drilling Servs. Inc. v.
Certex USA, Inc., 620 F.3d 469, 474 (2010); see also Int’l Paper, 206 F.3d at 418.
27. The remaining question concerns which claims are subject to arbitration.
The arbitration clause broadly covers all disputes “arising out of or relating to” the
Construction Contract. (Construction Contract, General Conditions §§ 15.1.1,
15.4.1.) Plaintiffs concede this language covers the claim for breach of warranty and
that, if estoppel applies, that claim is subject to arbitration. (See Pls.’ Opp’n (Choate)
21–22.)
28. The Court concludes that the claim for civil conspiracy against Choate is
also subject to arbitration. Plaintiffs contend that this claim “is linked to the tort
claims against Sanctuary”—fraudulently concealing mold and mildew problems
related to Arcadia’s HVAC systems—and therefore “had nothing to do with the actual
construction of the project.” (Pls.’ Opp’n (Choate) 22.) But the arbitration clause is
broad enough to capture “every dispute between the parties having a significant
relationship to the contract regardless of the label attached to the dispute.” J.J. Ryan
& Sons, Inc. v. Rhone Poulenc Textile, S.A., 863 F.2d 315, 321 (4th Cir. 1988).
29. The gist of Plaintiffs’ conspiracy claim is that Choate failed to build
Arcadia’s HVAC systems in accordance with the Construction Contract’s plans and
specifications, knew that its defective work caused mold and mildew problems, and
then conspired with Sanctuary to conceal the defects. (See Compl. ¶¶ 101–02, 104, 110, 131, 178–79.) Although Plaintiffs call this a tort and not a contract claim, the
label is immaterial. The allegations clearly “relate to” Choate’s duties under the
Construction Contract and therefore must be sent to the arbitrator.
2. Claims Asserted Against Geoscience
30. Plaintiffs are also estopped from refusing to arbitrate their claims against
Geoscience for similar reasons. The professional negligence claim against Geoscience
is expressly grounded in the work it performed in May and September 2013, subject
to its contracts with Sanctuary. (See Compl. ¶ 20.) Plaintiffs allege the reports
provided by Geoscience as part of its services were faulty and that Geoscience failed
to comply with the testing requirements, plans, and specifications for the construction
project. (See Compl. ¶¶ 56–58, 60, 83, 153.) Having sought to claim the benefit of the
Geoscience Contracts, Plaintiffs are estopped from refusing to arbitrate under the
arbitration clauses included within them.
31. Plaintiffs insist that their claim for professional negligence seeks no benefit
from the Geoscience Contracts but instead seeks to enforce a duty that “flows directly
from North Carolina common law.” (Pls.’ Opp’n (Geo.) 9.) Again, though, estoppel
does not turn on labels. Rather, it depends on the nature of the allegations, and
“courts should examine the underlying complaint to determine whether estoppel
should apply.” Am. Bankers Ins. Group, Inc. v. Long, 453 F.3d 623, 627 (4th Cir.
2006). As alleged, Plaintiffs’ claim turns on whether Geoscience failed to carry out
its duties under the Geoscience Contracts. Plaintiffs can neither walk away from
those allegations nor cloak them in the language of negligence in an effort to avoid arbitration. See, e.g., Carter v. TD Ameritrade Holding Corp., 218 N.C. App. 222,
232–33, 721 S.E.2d 256, 264 (2012); Bergenstock v. Legalzoom.com, Inc., 2015 NCBC
LEXIS 66, at *22–23 (N.C. Super. Ct. June 23, 2015).2
C. Staying or Dismissing the Claims
32. The final issue is whether the Court should dismiss the claims or stay them
pending arbitration. Although Plaintiffs’ claims against Choate and Geoscience must
proceed to arbitration, this Order does not resolve the entire lawsuit. Plaintiffs’
claims against several other defendants remain before the Court. Thus, the better
course is to stay the claims against Choate and Geoscience pending the outcome of
arbitration. See, e.g., Ryan v. BuckleySandler, LLP, 69 F. Supp. 3d 140, 149 (D.D.C.
2014) (dismissal is appropriate only where all claims are submitted to arbitrator).
IV. CONCLUSION
33. The Court FINDS and CONCLUDES as follows:
a. The Construction Contract between Choate and Sanctuary contains a
valid arbitration agreement. The contract involves interstate commerce and is
subject to the FAA. By asserting a claim for breach of the Contractor Warranty,
Plaintiffs seek a direct benefit from the Construction Contract and are therefore
2 One final issue bears mention. In support of its motion, Geoscience attached unsigned copies of the Geoscience Contracts, with no supporting affidavit. (See Geoscience’s Mot. to Dismiss Exs. A, B.) Without opposition, Geoscience supplemented the record with an affidavit stating that Geoscience and Sanctuary had, in fact, executed the contracts and also with additional documents confirming Sanctuary’s awareness and acceptance of the arbitration clause. (See Aff. K. Caldwell, ECF No. 80.) Although Plaintiffs initially questioned the unsigned contracts, they have voiced no concerns about the supplemental materials. The Court concludes that Geoscience has sufficiently established that the Geoscience Contracts are valid and enforceable. estopped from refusing to arbitrate. Both claims asserted against Choate fall
within the scope of the arbitration agreement and are subject to arbitration.
b. The Geoscience Contracts between Geoscience and Sanctuary contain
valid arbitration agreements. The contracts involve interstate commerce and are
subject to the FAA. By asserting a claim grounded in Geoscience’s duties under
the Geoscience Contracts, Plaintiffs seek a direct benefit from the contracts and
are therefore estopped from refusing to arbitrate. The claim asserted against
Geoscience falls within the scope of the arbitration agreement and is subject to
arbitration.
34. For these reasons, the Court GRANTS the motions and STAYS all claims
asserted against Choate and Geoscience pending arbitration. The Court DENIES
the motions to the extent they seek to dismiss these claims. The Court further
ORDERS that the parties shall notify the Court of the outcome of the arbitration
proceeding within seven days after the arbitrator has issued a decision.
35. Defendants Dino M. Pappas, Vrettos Pappas Consulting Engineers, P.A.,
Tony F. Miller, and Miller Architecture have argued that this entire action should be
stayed pending the outcome of any arbitration between Plaintiffs and Choate and
Geoscience. (ECF Nos. 51, 66.) No formal motion to stay has been made, and the
issue has not been briefed. Any motion to stay claims asserted against the other
defendants, and a supporting brief, must be filed no later than 14 days after the entry
of this Opinion. This the 24th day of August, 2018.
/s/ Adam M. Conrad Adam M. Conrad Special Superior Court Judge for Complex Business Cases