In re Tyco Int’l Ltd. MDL (03-1350)

2003 DNH 229

• Court: District Court, D. New Hampshire
• Decided: December 29, 2003
• Docket: MD-02-1335-B
• Status: Published

Opinion

In re Tyco Int’l Ltd. MDL (03-1350) MD-02-1335-B 12/29/03

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

In re Tyco International, Ltd. Multidistrict Litigation (MDL 1335 MDL DOCKET NO. 02-1335-B TYCO-PLAINTIFF ACTIONS Case N o . 03-1350-B Opinion N o . 2003 DNH 229

ORDER

Prior to the transfer of Tyco International, Ltd. v . Mark H .

Swartz, Civ. N o . 03-1350-B to this court under 28 U.S.C.

§ 1407, the parties had fully briefed defendant’s motion to

dismiss under Fed. R. Civ. P. 12(b)(1) and 12(b)(6). Having

reviewed the briefs and after hearing oral argument, I am now

able to resolve this motion.

Swartz’s 12(b)(1) motion for lack of subject matter

jurisdiction is without merit and is denied. The potential for

arbitration under an arbitration agreement does not deprive the

court of subject matter jurisdiction. E.g., The Anaconda v . Am.

Sugar Ref. Co., 322 U.S. 42 (1944). Swartz’s 12(b)(6) motion also lacks merit. Although he

argues that dismissal is warranted because all of Tyco’s claims

are arbitratable, he has actively resisted arbitration, claiming

that it should be delayed until the criminal charges now pending

against him have been resolved. Dismissal of an otherwise viable

complaint is not warranted based on the existence of an

arbitration agreement when the party seeking dismissal refuses to

arbitrate in accordance with the agreement.

For the above reasons I deny Swartz’s motions to dismiss

(Doc. N o . 3 ) under Fed. R. Civ. P. 12(b)(1) and 12(b)(6).

SO ORDERED.

Paul Barbadoro Chief Judge

December 2 9 , 2003

cc: All Counsel of Record

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