Charlotte Student Hous. Dst v. Choate Constr. Co.

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