United States District Court, D. Nevada
JUSTOURS, INC., a Delaware corporation; PUERTO VALLARTA ACQUISITIONS, INC., a Delaware corporation, Plaintiffs,
BOGENIUS GROUP, LLC, a California limited liability company; ANDREW BOGGERI, an individual; DOES I through X; and ROE CORPORATIONS I through X, Defendants.
M. NAVARRO, CHIEF-JUDGE UNITED STATES DISTRICT JUDGE
before the Court is the Motion to Compel Arbitration, (ECF
No. 5), filed by Defendants Bogenius Group, LLC, and Andrew
Boggeri (collectively “Defendants”). Plaintiff
JusTours, Inc., (“Plaintiff”) filed a Response,
(ECF No. 7), Defendants filed a Reply, (ECF No. 9), and
Plaintiff filed a Surreply, (ECF No. 14). For the reasons
discussed below, the Court GRANTS
case arises out of an agreement where Plaintiff purchased
Defendants' assets for travel packages and event packages
in Puerto Vallarta, Mexico. (Compl., ECF No. 1). Plaintiff
sells these packages to college students and wanted to do
business with Defendants due to them allegedly operating a
“turn-key” spring break destination located in
Puerto Vallarta. (Id. ¶¶ 7- 8). According
to Plaintiff, Defendants made false representations to
Plaintiff that they had exclusive relationships with vendors,
businesses, and nightlife operators in Puerto Vallarta.
(Id. ¶¶ 21-22). Plaintiff asserts that
because of this, Defendants failed to deliver the assets
required under the Asset Purchase Agreement (the
“Agreement”), and have additionally failed to
make the $30, 000.00 payment required under the Agreement.
(Id. ¶ 23). Based on these allegations,
Plaintiff asserts the following claims in its Complaint: (1)
declaratory relief as to Plaintiffs' rescission of assert
purchase and Agreement; (2) fraudulent misrepresentation; (3)
negligent misrepresentation; (4) violation of Nevada's
Deceptive Trade Practices Act; or (5) in the alternative,
breach of the Agreement; and (6) in the alternative, breach
of the implied covenant of good faith and fair dealing.
(Compl. ¶¶ 35-79).
instant Motion, Defendants argue that the Court should compel
arbitration of these claims in accordance with the
arbitration provision in the Agreement. (Mot. to Compel
3:4-5, ECF No. 5). Defendants assert that Plaintiff agreed,
in a signed writing, to the terms of the Agreement on March
27, 2015. (Mot. to Compel 3:7-9); (see Agreement,
Ex. A to Compl., ECF No. 5-1). The arbitration provision in
relevant part states:
Arbitration. Any controversy or claim arising out of or
relating to this Agreement or the Related Agreements, or the
breach thereof, of or relating to any interpretation,
construction, or performance of this Agreement, shall be
settled by arbitration to be held in Las Vegas, Nevada or
other location where Company's headquarters are located
in accordance with the rules then in effect of the American
Arbitration Association. The arbitration shall be conducted
by a single arbitrator, and such arbitrator may grant
injunctions or other relief in such dispute or controversy.
The decision of the arbitrator shall be final, conclusive and
binding on the parties to the arbitration. Judgment may be
entered on the arbitrator's decision in any court of
competent jurisdiction. The prevailing party will be entitled
to receive from the non-prevailing party all costs, damages
and expenses, including reasonable attorney' fees,
incurred by the prevailing party in connection with that
action or proceeding.
(Agreement, Ex. A to Compl. § 9.13). Because of this
arbitration policy, Defendants assert that this case should
be stayed pending arbitration or, in the alternative,
dismissed for lack of subject matter jurisdiction pursuant to
Federal Rule of Civil Procedure 12(b)(1). (See Mot.
to Compel 19-22).
2 of the Federal Arbitration Act (the “FAA”)
A written provision in . . . a contract evidencing a
transaction involving commerce to settle by arbitration a
controversy thereafter arising out of such contract or
transaction . . . shall be valid, irrevocable, and
enforceable, save upon such grounds as exist at law or in
equity for the revocation of any contract.
9 U.S.C. § 2. “In enacting § 2 of the [FAA],
Congress declared a national policy favoring arbitration and
withdrew the power of the states to require a judicial forum
for the resolution of claims which the contracting parties
agreed to resolve by arbitration.” Southland Corp.
v. Keating, 465 U.S. 1, 10 (1984). Courts place
arbitration agreements “upon the same footing as other
contracts.” Volt Info. Sciences, Inc. v. Bd. of
Trs. of Leland Stanford Junior Univ., 489 U.S. 468, 478
the FAA, parties to an arbitration agreement may seek an
order from the Court to compel arbitration. 9 U.S.C. §
4. The FAA “leaves no place for the exercise of
discretion by a district court, but instead mandates that
district courts shall direct the parties to proceed
to arbitration on issues as to which an arbitration agreement
has been signed.” Dean Witter Reynolds Inc. v.
Byrd, 470 U.S. 213, 218 (1985). Thus, the Court's
“role under the [FAA] is . . . limited to determining
(1) whether a valid agreement to arbitrate exists and, if it
does, (2) whether the agreement encompasses the dispute at
issue.” Lee v. Intelius, Inc., 737 F.3d 1254,
1261 (9th Cir. 2013). If a district court decides that an
arbitration agreement is valid and enforceable, then it
should either stay or dismiss the claims subject to
arbitration. Nagrampa v. MailCoups, Inc., 469 F.3d
1257, 1276-77 (9th Cir. 2006).
asserts that the arbitration clause in the agreement is void
and unenforceable because the agreement was rescinded by
Plaintiff and Defendants prior to this suit's filing.
(Resp. 2:5-11). Additionally, Plaintiff asserts that if the
provision is valid, then it is governed by Nevada law and
Nevada law holds the provision void “because it does
not contain a separate ...