been tantamount to granting the pending motion to dismiss. This court also notes
that in this case it has not scheduled any discovery dates before the court rules on
the defendant’s motion to dismiss.

Therefore, this court finds that the defendant’s motion to compel arbitration
and the appeal from the denial of such motion - a denial which was based upon the
fact that a motion to dismiss which included the arbitration agreement was already
pending before this court and ripe for a ruling - is superfluous. Defendant’s motion
to stay pending appeal is moot inasmuch as no discovery has been scheduled to be
stayed. In addition, in Bradford-Scott Data Corp. v. Physician Comp. Network, Inc,
128 F.3d 504, 506-507 (7th Cir. 1997), the Seventh Circuit stated “either the court of
appeals or the district court may declare that the appeal is frivolous, and if it is, the
district court may carry on with the case.” Even though this court has not found the
defendant’s appeal to be frivolous, it has found that the defendant’s motion to
compel arbitration and the appeal from the denial of such motion is superfluous.

Therefore, the defendant’s motion to stay is denied.



their Mot. to Dismiss p.’s 2-5. The defendant filed a motion to compel arbitration in
the state of Texas while this court was already set to rule on a motion to dismiss
which included the Defendant’s argument that the agreement of the parties contained
an arbitration clause in Texas.

On November 6, 2003, the defendant appealed this court’s decision to deny
the defendant’s motion to compel arbitration to the Seventh Circuit. On November
7, 2003, the defendant filed with this court a motion to stay pending the appeal to the

Seventh Circuit.

DISCUSSION

Generally, a denial of a motion to compel arbitration is appealable to the
Seventh Circuit and generally a motion to stay pending such an appeal may be
granted. However, the court finds that the defendant’s motion to compel arbitration
in the state of Texas was a superfluous action inasmuch as the defendant’s pending
motion to dismiss for improper venue already included the arbitration clause in
Texas. Def.’s Mot. to Dismiss p. 3; Def.’s Reply in Supp. of their Mot. to Dismiss
p.’s 2-5. This Court did not deny the Defendant’s motion to compel arbitration in
Texas on the merits, but ruled that it would not grant such a motion at that time
because the defendant already had a motion to dismiss before this court and a ruling
on the motion was scheduled which would have been dispositive of the issue on the

merits. A decision to grant the defendant’s motion to compel arbitration would have



Defendant’s motion to dismiss on the grounds, among others, that venue in
this case is in Texas and that the agreement of the parties provided for arbitration in
Texas is fully briefed before the court. This court is scheduled to rule on the motion

before February 2, 2004.

Samuel Der-Yeghiayan aU Y
United States District Court Judge

Dated: December 4, 2003



Minute Order Form (06/97)
+

United States District Court, Northern District of Mlinois

emesis soage | Samuel Der-Yeghiayan | Suneutee Over
CASE NUMBER 02 C 3047 DATE 12/4/2003
CASE Sharif vs. Wellness Int]
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:
qd) ao Filed motion of [ use listing in “Motion” box above.]
(2) ao Brief in support of motion due
(3) a Answer brief to motion due___. Reply to answer brief due___.
(4) Qo Ruling/Hearingon____sset for__at
(5) a Status hearing[held/continued to] [set for/re-set for]on__—_—setfor___—_at
(6) Oo Pretrial conference[held/continued to] [set for/re-set for]on__——ssetfor_——saat__
(7) Oo Trial[set for/re-set for]on__—_—at
(8) Oo (Bench/Jury trial] [Hearing] held/continued toa
(9) im} This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

QFRCP4(m) CO Local Rule 41.1 OOFRCP41(a)(1) OO FRCP41(a)(2).

qo) =x [Other docket entry] Status hearing held and continued to 02/02/04 at 9:00 a.m. For the reasons
stated on the attached memorandum opinion, the Court hereby denies defendants’ motion to stay. Enter
Memorandum Opinion.

(1) ff (For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required.

Notices mailed by judge’s staff,

Notified counsel by telephone.

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
RICHARD AND SOUZAN SHARIF, )
)
Plaintiffs, ) G ~
) =
v. ) Case No. 02 C 3047 %e ~ 2
) 95
WELLNESS INTERNATIONAL ) U
NETWORK, LTD., a/k/a WIN, et al., )
)
Defendants. )
Consolidated With
ROSEE TORRESS, et al., )
)
Plaintiffs, )
)
v. ) Case No. 02 C 5801
)
)
WELLNESS INTERNATIONAL )
NETWORK, LTD., a/k/a WIN, et al., )
)
Defendants. )
MEMORANDUM OPINION

SAMUEL DER-YEGHIAYAN, District Judge
Before this court is Defendant Wellness International Network, LTD.’s
(“Defendant”) motion to stay proceedings pending appeal in civil actions 02 C 3047

and 02 C 5801. For the forgoing reasons, we deny the Defendant’s motion.

BACKGROUND

Case 02 C 3047 Shariff, et al. v. Wellness International Network and case 02

yj



C 5801 Torres, et al. v. Wellness International Network were originally assigned to
Judge Manning. Judge Manning consolidated both of these cases and on January 9,
2003 Plaintiffs from both cases filed a consolidated and amended complaint against
the Defendants. Defendants filed a motion to dismiss this complaint on March 10,
2003, Plaintiffs responded on May 15, 2003, and Defendants filed their reply on
May 30, 2003. On August 5, 2003, case # 02 C 3047 was reassigned from Judge
Manning to the undersigned Judge. On October 29, 2003, case # 02 C 5801 was
reassigned from Judge Manning to the undersigned Judge.

On October 20, 2003, this court stated in a minute order following an initial
status hearing that the court would issue a ruling on Defendant’s motion to dismiss
by mail before February 2, 2004. On the same day this court issued that minute
order, the defendant filed with this court a motion to compel arbitration in the state
of Texas. Def.’s Mot. to Compel Arbitration p. 3,4. On October 23, 2003, during a
motion call, this court orally denied the defendant’s motion to compel arbitration in
the state of Texas stating that the defendant already had before this court a motion to
dismiss this action for lack of venue pursuant to 28 U.S.C. § 1406(a). This court
notes that in both defendant’s motion to dismiss and its reply brief, the defendant
presented to this court an agreement between the parties that provided that the
proper venue for the matter was in the state of Texas and that arbitration shall take

place in the state of Texas. Def.’s Mot. to Dismiss p. 3; Def.’s Reply in Supp. of