1In its response, Presstek raises a new theory to support

its previously-denied motion to dismiss. That argument is not

considered here. 

UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Marks 3-Zet-Ernst Marks GMBH & Co.KG

v. Civil No. 05-cv-121-JD

Presstek, Inc.

O R D E R

Marks 3-Zet-Ernst Marks GmbH & Co.KG filed a petition to

compel Presstek, Inc., to arbitrate their dispute under the terms

of their agreement, the New York Convention, and the Federal

Arbitration Act. Presstek moved to dismiss the petition,

pursuant to Federal Rule of Civil Procedure 12(b)(1), contending

that the court lacks subject matter jurisdiction over the case

based on Marks’s previous attempt to arbitrate before the

Permanent Court of Arbitration (“PCA”) at The Hague. The court

denied Presstek’s motion on the grounds it had raised but found

that the PCA’s initial ruling raised an issue of the

justiciability of Marks’s petition. The court ordered Marks to

show cause why its petition should not be dismissed as moot and

provided Presstek an opportunity to respond.1

This court must resolve an issue of subject matter

Case 1:05-cv-00121-JD Document 17 Filed 09/20/05 Page 1 of 5
2

jurisdiction before reaching the merits of a case. Steel Co. v.

Citizens for a Better Env’t, 523 U.S. 83, 101 (1998). Once

jurisdiction is at issue, the party invoking federal

jurisdiction, which is Marks in this case, bears the burden of

showing that it exists. United Parcel Serv. v. Flores-Galarza,

385 F.3d 9, 15 (1st Cir. 2004); Destek Group, Inc. v. N.H. Pub.

Util. Comm’n, 318 F.3d 32, 37 (1st Cir. 2003). 

A federal court is not authorized to issue advisory

opinions. See Mangual v. Rotger-Sabat, 317 F.3d 45, 60 (1st Cir.

2003). The court avoids advisory opinions by only adjudicating

cases that present a live controversy between the parties. See

Steir v. Girl Scouts of U.S.A., 383 F.3d 7, 16 (1st Cir. 2004). 

“Another way of putting this is that a case is moot when the

court cannot give any effectual relief to the potentially

prevailing party.” Horizon Bank & Trust Co. v. Massachusetts,

391 F.3d 48, 53 (1st Cir. 2004); see also Hewitt v. Helms, 432

U.S. 755, 761 (1987) (“[W]hat makes [a decision] a proper

judicial resolution of a ‘case or controversy’ rather than an

advisory opinion [] is the settling of some dispute which affects

the behavior of the defendant towards the plaintiff.”) Whether

the jurisdictional issue in this case is characterized as

mootness or the lack of a justiciable case or controversy, it is

an issue that must be resolved before the court proceeds. 

Case 1:05-cv-00121-JD Document 17 Filed 09/20/05 Page 2 of 5
2UNCITRAL is the acronym for the United Nations Commission

on International Trade Law which has issued arbitration rules. 

See Mitsubishi Motor Corp. v. Soler Chrysler-Plymouth, Inc., 473

U.S. 614, 633 n.17 (1985); Karaha Bodas Co. v. Perusahaan

Pertambangan Minyak Dan Gas Bumi Negara, 364 F.3d 274, 282 (5th

Cir. 2004).

3

Marks’s previous attempt at arbitration ended when the PCA

issued its letter on October 21, 2003. That letter notified the

parties that the Secretary-General of the PCA could designate an

Appointing Authority under the UNCITRAL Arbitration Rules only if

the parties had agreed to arbitration under those rules and that

he was “not satisfied, on the basis of a prima facie screening of

the documentation submitted by the parties, that he is competent

to act in this matter.2 The parties remain free to seek the

interpretation of their arbitration agreement from any court

having jurisdiction.”

It appears from that letter that the PCA will designate an

“Appointing Authority” and proceed with arbitration only if the

parties have agreed to arbitrate under the UNCITRAL Arbitration

Rules. Marks does not even suggest that the parties agreed to

the UNCITRAL Arbitration Rules. Instead, Marks asserts that its

failure to designate the governing rules in the arbitration

agreement is not fatal to enforcement of the agreement to

arbitrate and that this court must “specify the controlling rules

for the arbitrate [sic]” and order arbitration before the PCA. 

Case 1:05-cv-00121-JD Document 17 Filed 09/20/05 Page 3 of 5
3Presstek states that the arbitration agreement in the

parties’ contract specified the use of “International Arbitration

4

Response at 7.

Marks is proceeding in this court under a “Petition to

Compel Arbitration Pursuant to the New York Convention and the

Federal Arbitration Act.” In the Petition, Marks alleged that it

requested the PCA to designate an appointing authority in order

to begin arbitration proceedings but that “[t]he President of the

PCA subsequently concluded that the application of the Uncitral

Rules to the Agreement was not appropriate and gave no further

opinion with respect to the Agreement.” Pet. ¶ 14. Marks did

not include any allegations as to the meaning of the parties’

agreement with respect to which arbitration rules would apply. 

Marks also did not plead a claim seeking to interpret the

agreement to determine which arbitration rules would apply. In

the demand for relief, however, Marks requested that the court

“order such arbitration to proceed under the American Arbitration

Act’s International Rules.” Pet. ¶ A. Given the PCA’s

determination that it will proceed with arbitration only if the

parties have agreed to the UNCITRAL arbitration rules, the relief

Marks seeks, an order requiring Presstek to arbitrate their

dispute at the PCA under the American Arbitration Act’s

International Rules, is unavailable.3

Case 1:05-cv-00121-JD Document 17 Filed 09/20/05 Page 4 of 5
rules.” Presstek represents that it has researched the issue of

international arbitration rules and has found many different sets

of rules but none that were titled “American Arbitration Act’s

International Rules” or merely “International Arbitration rules.” 

The court’s own review of case law found no reference to the

“American Arbitration Act’s International Rules.”

5

Because the court cannot provide any effectual relief in

this case, the court lacks subject matter jurisdiction to

proceed.

Conclusion

For the foregoing reasons, the case is dismissed for lack of

subject matter jurisdiction. The clerk of court shall enter

judgment accordingly and close the case. 

SO ORDERED.

Joseph A. DiClerico, Jr.

United States District Judge

September 20, 2005

cc: Kevin M. Fitzgerald, Esquire

John E. Friberg, Esquire

James D. Rosenberg, Esquire

Arpiar G. Saunders, Jr.

Case 1:05-cv-00121-JD Document 17 Filed 09/20/05 Page 5 of 5