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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

AMERICAN FURUKAWA, INC., 

Plaintiff, 

v. 

ISTHIHAR HOSSAIN and HT WIRE & CABLE 

AMERICAS, LLC, 

Defendants. 

 / 

Case No. 14-cv-13633 

UNITED STATES DISTRICT COURT JUDGE

GERSHWIN A. DRAIN

UNITED STATES MAGISTRATE JUDGE

MICHAEL J. HLUCHANIUK

OPINION AND ORDER DENYING DEFENDANT’S MOTION TO DISMISS AND DEFER TO 

ARBITRATION [79] 

I. INTRODUCTION

American Furukawa, Inc., (“Plaintiff”) commenced this action on September 19, 2014 

against Isthihar Hossain. See Dkt. No. 1. On September 16, 2015, Plaintiff filed an Amended 

Complaint adding HT Wire & Cable Americas, LLC as a new party. See Dkt. No. 65. Before the 

Court now is the Defendants’ Motion to Dismiss and Defer to Arbitration. See Dkt. No. 79. This 

matter is fully briefed. For the reasons discussed below, the Motion will be DENIED. 

The matter is fully briefed. After reviewing the briefing, the Court concludes that oral 

argument will not aid in the resolution of this matter. Accordingly, the Court will resolve the 

Motion on the briefs as submitted. See E.D. Mich. L.R. 7.1(f)(2).

II. BACKGROUND

Plaintiff filed the instant action on September 19, 2014, against the Defendant. See Dkt. 

No. 1. As described below, the two parties have been and remain engaged in intense litigation 

since that time. Over a year later, on October 5, 2015, the Defendants moved to dismiss the case 

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and requested it be deferred to arbitration. See Dkt. No. 79. The Defendants attached an exhibit 

that purports to be a copy of a Joint Venture Agreement made between Heibei Huatong Wires & 

Cables Group Co. Ltd (“Huatong”), Furukawa Electric Industrial Cable Co. Ltd. (“FEIC”), and 

Shenyang Furukawa Cable Co. Ltd. (“SFC”). See Dkt. No. 79-1, at 4 (Pg. ID No. 1359). The 

alleged agreement states: 

57. Settlement of the Conflict: 

1. Any disputes caused by this contract or relating to this contract shall be 

resolved by the friendly discussion. 

2. If the dispute can’t be resolved by the discussion above, and the any 

effective resolution is not found, the arbitration location and facility are 

applied as follows: 

(1) When the arbitration is raised against Party A, the arbitration 

shall be performed at CIETAC (China International Economic 

and Trade Arbitration Commission) in Beijing China in 

accordance with the rules in the commission. 

. . . 

Id. at 6 (Pg. ID No. 1361). 

III. LEGAL STANDARD

“[T]he FAA provides for stays of proceedings in federal district courts when an issue in 

the proceeding is referable to arbitration, and for orders compelling arbitration when one party 

has failed or refused to comply with an arbitration agreement.” E.E.O.C. v. Waffle House, Inc., 

534 U.S. 279, 289 (2002); see also Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 218 (1985) 

(“[T]he Act 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.”). However, “[b]efore compelling an unwilling party to 

arbitrate, the court must engage in a limited review to determine whether the dispute is 

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arbitrable; meaning that a valid agreement to arbitrate exists between the parties and that the 

specific dispute falls within the substantive scope of that agreement.” Javitch v. First Union Sec., 

Inc., 315 F.3d 619, 624 (6th Cir. 2003).

IV. DISCUSSION

The parties dispute whether or not the claims should go to arbitration. The Court is not 

convinced that the documents provided by the Defendants warrant a deferral to arbitration. 

However, even assuming, without holding, that the Court found the evidence sufficient, the 

Motion would still fail because the Defendants have waived the right to enforce any arbitration 

agreement. 

“An agreement to arbitrate may be waived by the actions of a party which are completely 

inconsistent with any reliance thereon.” Germany v. River Terminal Ry. Co., 477 F.2d 546, 547 

(6th Cir. 1973) (per curiam). Typically, there is a strong presumption against the waiver of an 

arbitration right. MicroStrategy, Inc. v. Lauricia, 268 F.3d 244, 249 (4th Cir. 2001) (finding a 

waiver of the right to arbitration is “not to be lightly inferred). Accordingly, “a party waives an 

agreement to arbitrate by engaging in two courses of conduct: (1) taking actions that are 

completely inconsistent with any reliance on an arbitration agreement; and (2) “delaying its 

assertion to such an extent that the opposing party incurs actual prejudice.” Hurley v. Deutsche 

Bank Trust Co., Americas, 610 F.3d 334, 338 (6th Cir. 2010); see also JPD, Inc. v. Chronimed 

Holdings, Inc., 539 F.3d 388, 393 (6th Cir. 2008) (“Though we have declined to sharply define 

what conduct suffices, it typically involves a defendant’s failure to timely invoke arbitration after 

being sued or its interference with a plaintiff’s pre-litigation efforts to arbitrate.”). 

In three recent cases, the Sixth Circuit has held that each defendant waived its right to 

arbitrate by failing to assert that right in a timely fashion and instead participating in litigation4:14-cv-13633-SDD Doc # 97 Filed 11/19/15 Pg 3 of 5 Pg ID 1834
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related activities. In General Star National Insurance Co. v. Administratia Asigurarilor de Stat,

the Sixth Circuit held that the defendant waived its right to arbitrate after waiting 17 months 

before attempting to enforce the arbitration clause. 289 F.3d 434, 438 (6th Cir. 2002). 

In O.J. Distributing, Inc. v. Hornell Brewing Co., the Sixth Circuit held that the 

defendant waived its right to arbitrate by engaging in negotiations with the plaintiff for 

approximately 15 months-while at the same time denying the existence of the agreement which 

contained the arbitration provision-before asserting its right to arbitrate. 340 F.3d 345, 357 (6th 

Cir. 2003). 

In Manasher v. NECC Telecom, the Sixth Circuit found waiver where a defendant failed 

to “plead arbitration as an affirmative defense and . . . actively participat[ed] in litigation for 

almost a year without asserting that it had a right to arbitration.” 310 F. App’x 804, 806 (6th Cir. 

2009). 

Here, the complaint was filed in September 19, 2014. See Dkt. No. 1. The Defendants 

filed a Motion for Temporary Restraining Order on October 1, 2014. On February 23, 2015, the 

Defendants filed a Motion for Partial Judgment on the Pleadings pursuant to Fed. R. Civ. Pro. 

12(c). See Dkt. No. 30. Discovery ended on September 30, 2015. See Dkt. No. 40. “The parties 

have filed 31 sets of pleadings, and this Court has issued multiple orders. The parties have 

participated in two settlement conferences, one with the Magistrate Judge, and the second with a 

private facilitator.” Dkt. 89 at 8–9 (Pg. ID No. 1699–1700). Defendants raised arbitration as an 

issue for the first time on September 15, 2015 in a Reply Brief litigating a Motion to Reconsider 

the Court’s decision to Grant the Plaintiff permission to Amend the Complaint. See Dkt. No. 64 

at 3 (Pg. ID No. 1121). This Motion was not filed until October 5, 2015. See Dkt. No. 79. 

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As in Manasher, the Defendants in this case did not raise an arbitration agreement as an 

affirmative defense, and have been actively engaged in litigation for over a year. Not only have 

the Defendants behaved in a way that is completely inconsistent with any reliance on an 

arbitration agreement, but their 12-month delay has caused prejudice to the Plaintiff. See Dkt. 

No. 89 at 9 (Pg. ID No. 1700) (“Per Hossain’s request, Plaintiff has produced more than 2500 

pages of documents.”); see also Hurley, 610 F.3d at 340 (Finding the process of discovery, 

motion practice and incurring litigation costs to be “actual prejudice.”). Accordingly, the right to 

arbitrate is waived and the Motion fails. 

V. CONCLUSION

For the reasons discussed herein, the Motion is DENIED. 

IT IS SO ORDERED. 

Dated: November 19, 2015 s/Gershwin A. Drain 

Detroit, MI HON. GERSHWIN A. DRAIN 

 United States District Court Judge 

CERTIFICATE OF SERVICE 

I hereby certify that a copy of the foregoing document was served upon counsel of record l on 

November 19, 2015. Service was done electronically and by U S Postal Mail as required. 

 

s/Teresa A. McGovern 

 Case Manager Generalist 

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