UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

GREAT AMERICAN INSURANCE :

COMPANY, :

 :

Plaintiff, : Case No. 1:18-cv-213

vs. :

 : Judge Timothy S. Black

GEMMA POWER SYSTEMS, LLC, :

 :

Defendant. :

 

ORDER GRANTING DEFENDANT’S

MOTION TO COMPEL ARBITRATION (Doc. 24)

This civil action is before the Court on Defendant Gemma Power Systems, LLC

(“Gemma”)’s motion to compel arbitration (Doc. 24) and the parties’ responsive 

memoranda (Docs. 20, 23, 25, 28, 29). The Court held oral argument on Gemma’s 

motion on October 30, 2018.

I. BACKGROUND AND PROCEDURAL POSTURE

A brief overview of the parties, the dispute, and procedural history will assist the

analysis of the issues presented byn this motion to compel arbitration. This litigation

relates to the construction of the Middletown Energy Center (the “Project”), a natural gas 

electric generating plant located in Butler County, Ohio. Gemma was the general 

contractor for the Project. Gemma subcontracted with Intervenor-Plaintiff Kramig 

Industrial, Inc. (“Kramig Industrial”) to perform insulation work on the contract. Kramig 

Industrial and Gemma entered into the relevant contract (the “Insulation Subcontract”) in 

July 2017. (Doc. 24-1, Ex. 1). 
2

The Insulation Subcontract required Kramig Industrial to secure a payment and 

performance bond. (Doc. 24-1, Ex. 1 at Article 15). Plaintiff Great American Insurance 

Company (“Great American”) issued the surety bond on the Project (the “Bond”) to 

Intervenor-Plaintiff Kramig, Inc., as principal, securing Kramig Industrial’s performance 

of its work on the Project in favor of Gemma as named obligee. (Doc. 24-1 at Ex. 2). 

The penal sum of the Bond is the base Insulation Subcontract amount of $3,280,000. (Id. 

at ¶ 2).

Article 22 of the Insulation Subcontract includes an arbitration provision (the 

“Arbitration Provision”) that provides:

22.1 NEGOTIATION OF DISPUTES AND DISAGREEMENTS 

GPS and the Subcontractor will make reasonable, good faith efforts 

to amicably resolve any dispute or disagreement arising under this 

Subcontract or out of or in connection with the Work or the 

performance thereof. In the event of any dispute or disagreement 

arising out of or relating to the implementation or performance of 

this Subcontract that the Parties hereto have been unable to settle or 

agree upon within a period of ten (10) days after the dispute or 

disagreement arises, each Party shall thereupon nominate a senior 

officer of its management to meet at a mutually agreed time and 

place to resolve such dispute or disagreement, provided, however, 

that if the Parties are unable to agree upon a place for such meeting, 

it shall be held in Hartford, Connecticut.

22.2 BINDING ARBITRATION If the senior officers of the 

Parties fail, for any reason, to resolve the dispute or disagreement 

within thirty (30) days after the dispute or disagreement arose, then 

the Parties agree that either Party may submit such dispute or 

disagreement to binding arbitration under the auspices of the 

American Arbitration Association. Unless the Parties otherwise 

agree, such arbitration shall be held in Hartford, Connecticut and 

shall be governed by the Construction Rules of the American 

Arbitration Association, subject to modifications contained in this 

Section 22.2. Discovery, if any, shall be by agreement of the Parties 

only. The Parties and the arbitrators shall use their best efforts to
3

conclude such arbitration within sixty (60) days after the submission 

of the matter to arbitration.

The Project experienced several setbacks that ultimately led to this litigation. 

Great American and the Kramig Entities1allege that Gemma caused or permitted delays 

on the Project that rendered it impossible for Kramig Industrial to complete its work on 

the Project. Gemma alleges that Kramig Industrial breached the Insulation Subcontract by 

abandoning the Project, failing to complete its scope of the work, and performed certain 

work defectively. 

Great American brought this action on March 28, 2018 seeking declaratory 

judgment that: (1) the Bond is void and Great American has no liability to Gemma under 

the terms of the Bond (Doc. 1 at ¶ 52); (2) Gemma committed a material breach of the 

Bond (Id. at ¶ 57); (3) Great American’s obligation under the terms of the Bond, if any, is

limited to the penal sum (Id. at ¶ 60); (4) the Insulation Subcontract is subject to an 

upward adjustment to account for all delays and schedule compression due to Gemma’s 

Project management and were beyond the control of Kramig (Id. at ¶ 64); and 

(5) Gemma’s breach of the Insulation Subcontract relieves Great American of its 

performance obligation under the Bond. (Id. at ¶¶ 67–69). In response, on June 25, 

2018, Gemma filed a counterclaim against Great American for breach of the Bond.

On May 23, 2018, Gemma filed an arbitration demand with the American 

Arbitration Association (“AAA”) against Kramig Industrial, Inc. (as a party to the 

 

1 The “Kramig Entities” collectively refer to the Intervenor-Plaintiffs Kramig Industrial, Kramig, 

Inc., R.E. Kramig & Co., Inc., Kramig Corp., Diversified Industrial Capital Group, Inc., and 

South Mayne, LLC.
4

Insulation Subcontract), Kramig, Inc. (as a party to the Bond), and R.E. Kramig & Co. 

(as a party who sent invoices to Gemma related to the Project). The Kramig Entities filed 

a motion to intervene in this action on July 18, 2018. (Doc. 13). On July 27, 2018, 

Gemma filed a petition to compel arbitration in the U.S. District Court for the District of 

Connecticut in a case titled Gemma Powers Systems, LLC v. Kramig Industrial, Inc., et 

al., Case no. 18-01256 (the “Connecticut action”). In response, the Kramig Entities filed 

for a temporary restraining order seeking to enjoin the Connecticut action until after this 

Court ruled on the Kramig Entities’ motion to intervene and to enjoin Gemma from 

arbitrating the claims. (Doc. 16).

To their credit, after negotiation, the parties stipulated to the Kramig Entities 

intervening in this case and agreed to brief the issue of whether Gemma and the Kramig 

Entities agreed to arbitrate the current dispute. (Doc. 18). The Kramig Entities filed their 

intervening complaint on September 11, 2018, raising four causes of action against 

Gemma: (1) fraud in the inducement of the Insulation Subcontract; (2) fraud; 

(3) negligent misrepresentation; and (4) unjust enrichment all related to the work the 

Kramig Entities performed on the Project. (Doc. 19).

In the parties’ stipulation, Gemma agreed that any AAA arbitration proceeding 

will take place in Ohio and that it would not proceed with any arbitration proceedings 

until the Court rules on whether any claims are arbitrable. (Doc. 18 at ¶ 2). The parties 

also agreed that, if the Court determines that the parties agreed to arbitrate their dispute, 

Great American shall be allowed to intervene in any arbitration. (Id. at ¶ 6). 
5

II. STANDARD OF REVIEW

In considering a motion to compel arbitration, “courts treat the facts as they would 

in ruling on a summary judgment motion, construing all facts and reasonable inferences 

that can be drawn therefrom in a light most favorable to the nonmoving party.” Raasch v. 

NCR Corp., 254 F. Supp. 2d 847, 851 (S.D. Ohio 2003); see also Ackison Surveying, LLC 

v. Focus Fiber Solutions, LLC, Case No. 2:15-cv-2044, 2016 WL 4208145 (S.D. Ohio 

Aug. 10, 2016) (following Raasch). Therefore, the Court will look to the documents 

provided by the parties to lay the factual foundation and will construe those facts and any 

reasonable inferences that can be drawn therefrom in the light most favorable to the 

Kramig Entities. Yet, in order to defeat a motion to compel arbitration, the nonmovant 

has the burden to “show a genuine [dispute] of material fact as to the validity of the 

agreement to arbitrate.” Danley v. Encore Capital Group, Inc., 680 Fed. Appx. 394, 397 

(6th Cir. 2017) (quoting Great Earth Cos., Inc. v. Simons, 288 F.3d 878, 899 (6th Cir. 

2002). 

When asked by a party to compel arbitration under a contract, a federal court must 

determine whether the parties agreed to arbitrate the dispute at issue. Stout v. J.D.

Byrider, 228 F.3d 709, 714 (6th Cir. 2000). Courts are to examine the language of the 

contract in light of the strong federal policy in favor of arbitration. Moses H. Cone 

Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983) (the FAA “is a 

congressional declaration of a liberal federal policy favoring arbitration agreements, 

notwithstanding any state substantive or procedural polices to the contrary”). Any 

ambiguities in the contract or doubts as to the parties’ intentions should be resolved in 
6

favor of arbitration. Stout, 228 F.3d at 714. The “primary purpose” of the FAA is to 

ensure “that private agreements to arbitrate are enforced according to their terms.” Volt 

Info. Sci., Inc. v. Bd. of Tr. of Leland Stanford, Jr. Univ., 489 U.S. 468, 479 (1989). 

Section 3 of the FAA provides:

If any suit or proceeding be brought in any of the courts of the

United States upon any issue referable to arbitration under an

agreement in writing for such arbitration, the court in which 

such suit is pending, upon being satisfied that the issue 

involved in such suit or proceeding is referable to arbitration 

under such agreement, shall on application of one of the 

parties, stay the trial of the action until such arbitration has 

been had in accordance with the terms of the Agreement, 

provided the applicant for the stay is not in default in 

proceeding with such arbitration.

9 U.S.C. § 3. Section 3 thus “requires” a court in which suit has been brought “upon any 

issue referable to arbitration under an agreement in writing for such arbitration to stay the 

court action pending arbitration once it is satisfied that the issue is arbitrable under the 

agreement.” Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 400 (1967); 

see also Santos v. Am. Broad. Co., 866 F.2d 892, 894 (6th Cir. 1989) (“Where the parties 

to a contract that provides for arbitration have an arbitrable dispute, it is crystal clear that 

Congress has mandated that federal courts defer to contractual arbitration”). 

In considering a motion to compel arbitration under the FAA, a court has four 

tasks: (1) it must determine whether the parties agreed to arbitration; (2) it must 

determine the scope of the arbitration agreement; (3) if federal statutory claims are 

asserted, it must consider whether Congress intended those claims to be nonarbitrable;

2

 

2 No federal statutory claims are asserted here.
7

and (4) if the court concludes that some, but not all, of the claims in the action are subject 

to arbitration, the court must determine whether to stay the remainder of the proceedings 

pending arbitration. Stout, 228 F.3d at 714.

The Sixth Circuit applies “the cardinal rule that, in the absence of fraud or willful 

deceit, one who signs a contract which he has had an opportunity to read and understand, 

is bound by its provisions.” Allied Steel & Conveyors, Inc. v. Ford Motor Co., 277 F.2d 

907, 913 (6th Cir. 1960). It is settled authority that doubt regarding the applicability of 

an arbitration clause should be resolved in favor of arbitration. Id. Indeed, “any doubts 

are to be resolved in favor of arbitration unless it may be said with positive assurance that

the arbitration clause is not susceptible of an interpretation that covers the asserted 

dispute.” Nestle Waters N. Am., Inc. v. Bollman, 505 F.3d 498, 504 (6th Cir. 2007). If 

parties contract to resolve their disputes in arbitration rather than in the courts, a party 

may not renege on that contract absent the most extreme circumstances. Allied Steel & 

Conveyors, 277 F.2d at 913. 

III. ANALYSIS

A. Gemma and Kramig Industrial agreed to arbitrate

“Before compelling an unwilling party to arbitrate, the court must engage in a 

limited review to determine whether the dispute is 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 Securities, Inc., 315 F.3d 

619, 624 (6th Cir. 2003). Here, there is no dispute that the Arbitration Provision in the 

Insulation Subcontract is valid as to Gemma and Kramig Industrial. (Doc. 20 at 12; Doc. 
8

24 at 7). Instead, Kramig argues that only Kramig Industrial is subject to the arbitration 

provision -- not Kramig, Inc.; R.E. Kramig & Co., Inc.; Kramig Corp.; Diversified 

Industrial Capital Group, Inc.; and South Wayne, LLC -- and therefore those other 

entities cannot be forced to arbitrate their claims. The Court will address this argument 

infra after determining whether this dispute falls within the substantive scope of the 

Arbitration Provision.

B. The Arbitration Provision applies to this dispute

The Court must determine whether the scope of the Arbitration Provision is broad 

enough to encompass the claims asserted by Kramig in this case. Gemma contends that 

the Arbitration Provision’s language that “any and all disputes or disagreements arising 

under the Subcontract or in connection with Kramig’s scope of Work thereunder” clearly 

encompasses Kramig’s tort claims asserted against Gemma. (Doc. 24-1, Ex. 1 at Article 

22). Kramig contends that Gemma and Kramig Industrial only agreed to arbitrate 

disputes regarding the meaning of the Insulation Subcontract and the performance by 

either party under the agreement. Kramig argues that its tort claims for fraudulent 

inducement, fraud, negligent misrepresentation, and unjust enrichment stand on their own 

and do not “arise under” the Insulation Subcontract and therefore are not arbitrable.

The Supreme Court has held that, as a matter of federal law, the FAA establishes 

that any doubts over the scope of arbitrable issues should be resolved in favor of 

arbitration. Moses H. Cone Mem’l Hosp., 460 U.S. at 24-25. Therefore, an “order to 

arbitrate the particular grievance should not be denied unless it may be said with positive 

assurance that the arbitration clause is not susceptible of an interpretation that covers the 
9

asserted dispute.” AT&T Techs., Inc. v. Commc’ns Workers of Am., 475 U.S. 643, 650, 

106 S. Ct. 1415, 89 L. Ed. 2d 648 (1986). “[A]ny doubts concerning the scope of 

arbitrable issues should be resolved in favor of arbitration.” Mitsubishi Motors Corp. v. 

Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626 (1985). Moreover, the Supreme Court 

has held that “a claim of fraud in the inducement of the entire contract” is a matter to be 

resolved by the arbitrators, not the federal courts. Prima Paint Corp., 388 U.S. at 402–

04.

Here, Kramig argues that courts construe the language “arising under” to be 

narrower than a clause requiring arbitration of matters “arising out of” a dispute, and,

therefore, Kramig’s tort claims are not within the scope of the Arbitration Provision. 

(Doc. 20 at 13). District courts within the Sixth Circuit are divided on whether an 

arbitration provision including the phrase “arising under” is broad enough to reach claims 

for fraudulent inducement of a contract as a whole. In General Power Products, LLC v. 

MTD Products, Inc., 2007 WL 901522 (S.D. Ohio March 27, 2007), the court followed 

decisions in the Second and Ninth Circuit to conclude that an arbitration provision with 

the language “if the Parties are unable to resolve a dispute hereunder” did not encompass 

a tortious interference claim. Id. at * 4. Yet in BBS Techs., Inc. v. Remington Arms Co., 

2005 WL 3132307 (E.D. Ky. Nov. 22, 2005), the court found that a party’s tort claims 

were within the scope of an arbitration provision requiring “any dispute arising under this 

Agreement” to be arbitrated because the tort claims had their origins in the parties’ 

commercial dealings and were dictated by the relevant contract. Id. at * 5.
10

The Sixth Circuit has found that the fraudulent inducement of a contract claim 

“arises out of” a contract, but has not decided whether it “arises under” a contract. 

Highland Wellmont Health Network v. John Deere Health Plan, Inc., 350 F.3d 568, 578 

n.6 (6th Cir. 2003). In Highland, the Sixth Circuit cited favorably to other circuits that, 

due to the strong federal policy in favor of arbitration, did not follow the Second and 

Ninth Circuit’s limited reading of arbitration provisions. See Battaglia v. McKendry, 233 

F.3d 720, 725 (3d Cir. 2000) (“arising under” and “arising out of” are given broad 

construction and encompass claims going to the formation of the underlying 

agreement); Gregory v. Electro-Mech. Corp., 83 F.3d 382, 383-85 (11th Cir. 1996) 

(fraudulent inducement of contract within scope of arbitration clause covering “any 

dispute ... which may arise hereunder”); Peoples Sec. Life Ins. Co. v. Monumental Life 

Ins. Co., 867 F.2d 809, 813 (4th Cir. 1989) (claim of fraudulent inducement fell within 

scope of arbitration clause covering any issue “believed to constitute a breach or 

violation” of the contract).

The Sixth Circuit has stated that the proper method of analysis to determine if a 

dispute is within the scope of an arbitration clause “is to ask if an action could be 

maintained without reference to the contract or relationship at issue.” Highland, 350 F.3d

at 576 (citing Fazio v. Lehman Bros., Inc., 340 F.3d 386, 392 (6th Cir. 2003)). Here, the 

Court finds that Kramig Industrial’s claims against Gemma could not be maintained 

without reference to the Insulation Subcontract or the relationship at issue. Furthermore, 

the Arbitration Provision covers more disputes than just those “arising under” the 

Insulation Subcontract; it also covers disputes “in connection with Kramig’s scope of 
11

Work thereunder.” (Doc. 24-1, Ex. 1 at Article 22). This plainly covers a broader scope 

of disputes than those “arising under” the Insulation Subcontract. 

Accordingly, and recognizing that any doubts about the enforceability of 

arbitration agreements are resolved in favor of arbitration, Huffman v. Hilltop Cos., LLC, 

747 F.3d 391, 395 (6th Cir. 2014), the Court finds that Kramig Industrial’s tort claims fall 

within the scope of the Arbitration Provision.

C. Whether the conditions precedent to the Arbitration Provision have been 

met is to be determined by an arbitrator

The Kramig Entities argue that Kramig Industrial cannot be compelled to arbitrate 

the disputes at issue because the Arbitration Provision requires that senior officers of 

Gemma and Kramig Industrial attempt to settle any dispute prior to arbitration. (Doc. 20 

at 15–16). Gemma contends that Kramig circumvented Gemma’s efforts to settle the

disputes. (Doc. 28 at 5–6). 

Though the parties did not cite it, the Supreme Court has held that an arbitrator, 

rather than a court, must decide whether conditions precedent to arbitration have been 

met. Howsam v. Dean Witter Reynolds, 537 U.S. 79, 84 (2002) (holding that arbitrator 

must decide whether a party's demand to arbitrate was time-barred); John Wiley & Sons, 

Inc. v. Livingston, 376 U.S. 543, 557 (holding that an arbitrator should decide whether the 

first two steps of a grievance procedure were completed, where these steps are 

prerequisites to arbitration); see also Capitol Indem. Corp. v. Dayton Bd. of Educ., 492 F. 

Supp. 2d 829, 835 (S.D. Ohio 2006) (“An arbitrator, rather than a court, however, must
12

decide the antecedent procedural questions, such as whether conditions precedent to 

arbitration have been met.”). 

Accordingly, the Court finds that whether Gemma met the conditions precedent of 

the Arbitration Provision is for the arbitrator to determine, not the Court.

D. Ohio R.C. § 4113.62 does not void the Arbitration Provision

Next, Kramig contends that the Arbitration Provision is void and unenforceable 

under Ohio law, which law governs the Insulation Subcontract. (Doc. 24-1, Ex. 1 at 

Article 24.2). Ohio Revised Code § 4113.62 provides:

Any provision of a construction contract ... for an 

improvement, or portion thereof, to real estate in this state 

that requires any litigation, arbitration, or other dispute 

resolution process provided for in the construction contract, 

subcontract, agreement, or understanding to occur in another 

state is void and unenforceable as against public policy ....” 

O.R.C § 4113.62(D)(2). Kramig argues that the Arbitration Provision is void because it 

states that, unless the parties otherwise agree, the arbitration will take place in Hartford, 

Connecticut. However, Kramig is unable to identify any case law where an arbitration 

provision in a construction contract has been voided in its entirety due to a forum 

selection clause outside of Ohio. Instead, Kramig only cites cases in which courts have 

found forum selection clauses requiring dispute resolution outside of Ohio to be 

unenforceable. See, e.g., Michels Corp. v. Rockies Express Pipeline, L.L.C., 2015-Ohio2218, 34 N.E.3d 160, ¶ 44 (7th Dist.) (finding that § 4113.62 renders foreign forum 

selection and choice of law clauses in construction contracts void and unenforceable); 

Univ. Hospitals Health Systems, Inc. v. Pohl, Inc., 2016 WL 1389608 (N.D. Ohio Apr. 7, 
13

2016) (denying defendant’s motion to dismiss or transfer an action because the choice of 

law and forum selection provisions in the underlying contract were void pursuant to 

§ 4113.62).

Here, Gemma has expressly agreed to arbitrate the dispute in Ohio (Doc. 18 at 

¶ 2); it no longer seeks to arbitrate the disputes in Connecticut. Accordingly, because 

Gemma seeks to compel arbitration in Ohio, and does not seek to enforce the 

Connecticut-venue clause, the Court need not address whether the Connecticut-venue 

provision affects the enforceability of the Arbitration Provision. See Taylor Bldg. Corp. 

v. Benfield, 117 Ohio St.3d 352, ¶ 64 (declining to determine whether a Kentucky-venue 

provision affects the enforceability of an arbitration provision where party did not seek to 

enforce the Kentucky-venue provision). 

E. The Kramig Entities are bound to arbitrate

Having found that Kramig Industrial’s claims against Gemma are arbitrable under 

the Arbitration Provision, the Court must determine if the other Kramig Entities that are 

not signatories to the Insulation Subcontract can be compelled to arbitrate. The Kramig 

Entities argue that, because only Kramig Industrial is a signatory to the Insulation 

Subcontract, only Kramig Industrial can be compelled to arbitrate the disputes at issue. 

Gemma emphasizes that the parties’ stipulation that permitted the Kramig Entities to 

intervene in this action provided that this Court would determine whether all parties 

either arbitrate before the AAA or litigate before this Court. (Doc. 28 at 8–9). The Court 

finds Gemma’s argument persuasive and agrees that the Kramig Entities can be 

compelled to arbitrate as signatories to the joint stipulation. (Doc. 18)
14

Moreover, within the Sixth Circuit, nonsignatories may be bound to an arbitration 

agreement under ordinary contract and agency principles. Arnold v. Arnold Corp., 920 

F.2d 1269, 1281 (6th Cir. 1990). “Five theories for binding nonsignatories to 

arbitration agreements have been recognized: (1) incorporation by reference, 

(2) assumption, (3) agency, (4) veil-piercing/alter ego, and (5) estoppel.” Javitch, 315 

F.3d at 629 (citing Thomson–CSF, S.A. v. Am. Arbitration Ass'n, 64 F.3d 773, 776 (2d 

Cir. 1995)). 

Here, the Court finds that the Kramig Entities can be compelled to arbitrate their 

disputes with Gemma under an equitable estoppel theory. “A nonsignatory may be 

bound to an arbitration agreement under an estoppel theory when the nonsignatory seeks 

a direct benefit from the contract while disavowing the arbitration provision.” Mac Tools 

v. Diaz, 2012 WL 1409395, at *5 (S.D. Ohio Apr. 23, 2012) (citing Javitch, 315 F.3d at 

629). In Mac Tools, the court found that a wife who was not a signatory to an agreement 

between her husband and Mac Tools was bound by an arbitration provision in the 

agreement because she sought and expected benefit from her husband’s agreement with 

Mac Tools and their fraudulent inducement claims against Mac Tools were substantively 

the same. Id. at *5. The court found that it would be “inequitable” to permit the wife to 

litigate her claims in court when her husband, whose claims were indistinguishable from 

his wife’s, was bound to arbitrate his claims against Mac Tools. Id. at *6.

First, both Kramig, Inc., as the securing principal under the Bond that guaranteed 

Kramig Industrial’s performance on the Insulation Subcontract, and R.E. Kramig & Co., 
15

as an entity that submitted invoices to Gemma for work under the Insulation Subcontract, 

clearly sought a direct benefit from the Insulation Subcontract. Moreover, similar to 

Mac Tools, each of the Kramig Entities seeks to make claims against Gemma that are 

substantively identical to Kramig Industrial’s. All of the claims of the Kramig Entities 

included in the intervening complaint (Doc. 19) are alleged collectively and are the same 

claims as the Court has concluded that Kramig Industrial is bound to arbitrate. Although 

the Kramig Entities do not bring claims for breach of the Insulation Subcontract against 

Gemma, their claims would not exist but for the existence of the Industrial Subcontract 

between Gemma and Kramig Industrial. See Int'l Paper Co. v. Schwabedissen 

Maschinen & Anlagen, 206 F.3d 411, 418 (4th Cir. 2000) (nonsignatory could not avoid 

contractual arbitration provision where the contract “provide[d] part of the factual 

foundation for every claim asserted” against defendant). Accordingly, the parties’ 

stipulation and the doctrine of equitable estoppel require the Kramig Entities to arbitrate 

their claims against Gemma.

F. A stay of the proceedings is warranted

Section 3 of the FAA “requires” a court in which suit has been brought “upon any 

issue referable to arbitration under an agreement in writing for such arbitration to stay the 

court action pending arbitration once it is satisfied that the issue is arbitrable under the 

agreement.” See, e.g., Prima Paint Corp., 388 U.S. at 400 (emphasis added). Here, the 

Court has found that the claims between Gemma and the Kramig Entities are arbitrable 

under the Arbitration Provision and that the parties have stipulated that Great American is
16

permitted to intervene in the arbitration between Gemma and the Kramig Entities; and 

Great American represented in Court that it would participate. 

Accordingly, a stay of all claims in this action is appropriate pending arbitration.

IV. CONCLUSION

For these reasons, Gemma’s motion to compel arbitration (Doc. 24) is 

GRANTED, and this civil action is STAYED. The parties shall jointly notify the Court 

promptly upon conclusion of the arbitration with respect to how they intend to proceed.

IT IS SO ORDERED.

Date: 

Timothy S. Black

United States District Judge

11/15/19