UNITED STATES DISTRICT COURT 

 FOR THE DISTRICT OF NEW JERSEY 

 

GLEN W. WEST, SR., 

 Plaintiff, 

v. 

GENERAL MOTORS, LLC, 

 Defendant. 

Civil Action No. 11-CV-819 (JAP)(DEA) 

 

PLAINTIFF GLEN W. WEST, SR.’S MEMORANDUM OF LAW IN OPPOSITION TO 

DEFENDANT GENERAL MOTORS LLC’S MOTION TO COMPEL ARBITRATION 

AND TO DISMISS PLAINTIFF’S VERIFIED COMPLAINT OR, IN THE 

ALTERNATIVE, STAY THE ACTION, AND IN SUPPORT OF PLAINTIFF’S CROSSMOTION FOR EXPEDITED DISCOVERY 

SAIBER LLC 

18 Columbia Turnpike, Suite 200 

Florham Park, New Jersey 07932 

Tel: (973) 622-3333 

Attorneys for Plaintiff 

Glen W. West, Sr. 

On the Brief, 

Marc E. Wolin 

Una Y. Kang 

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TABLE OF CONTENTS

PAGE

PRELIMINARY STATEMENT .......................................................................................................1 

PROCEDURAL HISTORY...............................................................................................................1 

FACTUAL BACKGROUND............................................................................................................2

The 2010 Dealer Sales and Service Agreement.....................................................................2 

The 2008 Stockholders Agreement and Arbitration Agreement ...........................................5 

The 2010 Stockholders Agreement........................................................................................5 

LEGAL ARGUMENT.......................................................................................................................6 

I. The Arbitration Agreement Does Not Govern West’s 

Claims Against GM ...................................................................................................6 

A. The Scope of West’s Claims Do Not Fall Within 

the Arbitration Agreement .............................................................................7 

 II. The Federal Arbitration Act Does Not Preclude This Court’s 

Ability to Consider and Grant Preliminary Injunctive Relief 

Under the NJFPA.......................................................................................................13 

III. West is Entitled to Expedited Discovery ...................................................................13 

CONCLUSION..................................................................................................................................20 

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TABLE OF AUTHORITIES

PAGE

AT & T Technologies, Inc. v. Communications Workers of America, 

 475 U.S. 643, 106 S. Ct. 1415 (1986).............................................................................................8 

Arciniaga v. General Motors Corp. 

 460 F.3d 231 (2d Cir. 2006)............................................................................................................12 

Atkinson v. Sinclair Refining Co., 

 370 U.S. 238, 82 S. Ct. 1318 (1962)...............................................................................................8 

Atlantic City Coin & Slot Service Co., Inc. v. IGT, 

 14 F. Supp. 2d 644 (D.N.J. 1998) ...................................................................................................19, 21 

Atlantic City Racing Association v. Sonic Financial Corp., 

 90 F. Supp. 2d 497 (D.N.J. 2000) ...................................................................................................16 

Beilowitz v. General Motors Corp., 

 233 F. Supp. 2d 631 (D.N.J. 2002) .................................................................................................19 

Better Packages, Inc. v. Zheng, 

 2006 WL 1373055 (D.N.J. May 17, 2006).....................................................................................19, 21 

Central Jersey Freightliner, Inc. v. Freightliner Corp., 

 987 F. Supp. 289 (D.N.J. 1997) ......................................................................................................17 

Darrick Enterprises v. Mitisubishi Motors Corporation, 

 2007 WL 2893366 (D.N.J. 2007) ...................................................................................................10 

Entertainment Tech., Corp. v. Walt Disney Imagineering,

 2003 WL 22519440 (E.D.Pa. Oct. 2, 2003)....................................................................................21 

First Options of Chicago, Inc. v. Kaplan, 

 514 U.S. 938, 115 S. Ct. 1920, 131 L. Ed. 2d 985 (1995)..............................................................8 

Fit Tech, Inc. v. Bally Total Fitness Holding Corp., 

 374 F.3d 1 (1st Cir. 2004)..............................................................................................................12, 14, 16 

Gelardi Corp. v. Miller Brewing Co., 

 421 F. Supp. 233 (D.N.J. 1976) ......................................................................................................24 

Gibbs ex Rel. Gibbs v. Carnival Cruise Lines, 

 314 F.3d 125 (3d Cir. (N.J.) 2002) .................................................................................................9 

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GucciAmerica, Inc. v. Daffy's, Inc., 

 2000 WL 1720738 (D.N.J. Nov. 14, 2000) ....................................................................................20

Instructional Systems, Inc. v. Computer Curriculum Corporation, 

 130 N.J. 324 (1992) ........................................................................................................................9 

Kavanaugh v. Ford Motor Co., 

 353 F.2d 710 (7th Cir.1965) ...........................................................................................................10 

Lanza v. New Global Communications, Inc., 

 2006 WL 2759215 (N.J. Super. Ch.. Oct. 21, 2005) ......................................................................23 

Merrill Lynch, Pierce, Fenner & Smith, Inc. v. O'Connor, 

 194 F.R.D. 618 (N.D.Ill. 2000).......................................................................................................20, 21 

Notaro v. Koch, 

 95 F.R.D. 403 (S.D.N.Y. 1982) .......................................................................................................19 

Ortho Pharmaceutical Corp. v. Amgen, Inc., 

 882 F.2d 806 (3d Cir. (Del.) Aug. 17, 1989) ..................................................................................17 

P.V. ex rel. T.V. v. Camp Jaycee, 

 197 N.J. 132 (2008) ........................................................................................................................9 

Philadelphia Newspapers Inc. v. Gannett Satellite Information Network., 

 1998 WL 404820 (E.D.Pa. July 15, 1998)......................................................................................21 

Penske Logistics, Inc. V. KLLM, Inc., 

 285 F. Supp. 2d 468 (D.N.J. 2003) .................................................................................................14 

Performance Unlimited, Inc. v. Questar Publishers, Inc., 

 52 F.3d 1373 (6th Cir. 1995) ..........................................................................................................17 

Perry v. Thomas, 

 482 U.S. 483, 107 S. Ct. 2520, 96 L. Ed. 2d 426 (1987)................................................................7 

Saturn of Denville v. General Motors Corp., 

 2009 WL 1545559 (D.N.J. May 29, 2009).....................................................................................24

Semmes Motors, Inc. v. Ford Motor Co., 

 429 F.2d 1197 (2d Cir. 1970)..........................................................................................................24 

Shell Oil Company v. Marinello, 

 63 N.J. 402 (1973) ..........................................................................................................................11 

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United Steelworkers v. Warrior and Gulf Navigation Co., 

 363 U.S. 574, 80 S. Ct. 1347 (1960)...............................................................................................8 

Verizon New Jersey, Inc. v. DMJM Harris, Inc., 

 2009 WL 1283173 (D.N.J. May 1, 2009).......................................................................................16 

Westfield Centre Serv. Inc v. Cities Serv. Oil Co., 

 86 N.J. 453 (1981) ..........................................................................................................................10 

STATUTES 

9 U.S.C. § 4 .......................................................................................................................................8 

Fed. R. Civ. P. 26...............................................................................................................................18 

Fed. R. Civ. P. 26(d) ..........................................................................................................................18 

Fed. R. Civ. P. 30(a) ..........................................................................................................................18 

Fed. R. Civ. P. 34(b) ..........................................................................................................................18 

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PRELIMINARY STATEMENT

Plaintiff Glen W. West, Sr. (“West” or “Plaintiff”) submits this brief in 

opposition to Defendant General Motors LLC’s (“GM” or “Defendant”) Motion to 

Compel Arbitration and to Dismiss Plaintiff’s Verified Complaint or, in the 

Alternative, Stay the Action (hereinafter, “Motion to Compel”), and in support of 

his Cross-Motion for Expedited Discovery. As set forth below, GM’s Motion to 

Compel should be denied because the scope of West’s claims do not fall within the 

arbitration agreement. Indeed, as set forth in more detail below, the Arbitration 

Agreement is in direct conflict with the parties’ Dealer Sales and Service 

Agreement, which controls the parties’ franchise relationship. Further, recent 

developments necessitate that West cross-move for expedited discovery, limited in 

scope to narrow issues relating to an application for preliminary injunction for 

reinstatement to the board of directors of Superior Chevrolet. 

PROCEDURAL HISTORY

 West commenced this action against GM by filing a Verified Complaint, in 

the Superior Court of New Jersey, Chancery Division, Mercer County, together 

with an application for an Order to Show Cause, seeking temporary restraints, on 

February 14, 2011. 

On February 15, 2011, GM filed a Notice of Removal based on diversity 

grounds (Dkt. No. 1). Upon removal of this matter to the District Court of New 

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Jersey, this Court scheduled a hearing on West’s application on February 18, 2011, 

after providing GM the opportunity to submit an opposition on or before February 

17, 2011. At the same time that GM filed its opposition papers to West’s 

application on February 17, 2011 (Dkt. Nos. 7, 9), GM also filed the present 

motion to compel arbitration and to dismiss West’s complaint or, in the alternative, 

stay the action (Dkt. Nos. 6, 8). 

After the temporary restraints hearing, the Court entered an Order on 

February 25, 2011, granting in part and denying in part West’s application for a 

temporary restraining order. Specifically, the Court ordered that GM was enjoined 

from: selling or transferring West’s stock in Superior Chevrolet, or otherwise 

terminating or modifying the existing dealership agreement, or entering into a new 

dealer sales and service agreement with any third party regarding the Superior 

Chevrolet dealership, or changing the ownership of Superior Chevrolet, or 

engaging in any conduct that would frustrate the intent of the Court’s ruling on 

February 18, 2011. Further, the Court ordered GM to produce to West a complete 

copy of the Dealer Sales and Service Agreement. See Certification of Marc E. 

Wolin (“Wolin Cert.”), Esq., Exhibit A. 

FACTUAL BACKGROUND

This Court is already familiar with the factual background of West’s claims 

in this action, which have been previously discussed in detail in West’s application 

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for the Order to Show Cause. In addition to the relevant factual background 

discussed therein, the following additional relevant information is relevant to the 

Court’s consideration of GM’s Motion to Compel and West’s Cross-Motion for 

Expedited Discovery. 

The 2010 Dealer Sales and Service Agreement 

West asserts claims, inter alia, based on the New Jersey Franchise Practices 

Act which arise out of a GM Dealer Sales and Service Agreement (“Dealer 

Agreement”) executed effective November 1, 2010, which is the most recent 

agreement between the parties and governs the franchise relationship between 

them. Nowhere does the 2010 Dealer Agreement mention a mandatory arbitration 

agreement or provision. In fact, while the 2010 Dealer Agreement incorporates 

Standard Provisions and Related Addenda, as set forth below, it does not

incorporate by reference the 2008 Arbitration Agreement. Paragraph 5 of the 

Dealer Agreement, titled “Additional Agreements and Understandings”, provides 

that “[t]he following agreement(s) are hereby incorporated by reference into this 

Agreement”, yet identifies no other agreements or understandings whatsoever. See

2010 Dealer Agreement at ¶5. 

In contrast, the Dealer Agreement specifically incorporates by reference 

“Standard Provisions and Related Addenda”. See Wolin Cert., Exh. A., p. 1 (“The 

Standard Provisions and all of the related Addenda are hereby incorporated as part 

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of this Agreement.”). These Standard Provisions and Related Addenda are 

appended to the Dealer Agreement (collectively, the “Dealer Agreement”). Id. 

Nothin in the Standard Provisions mandates that this mater be arbitrated. 

Moreover, several of the Standard Provisions support that GM’s conduct here was 

in violation of the Dealer Agreement and the New Jersey Franchise Practices Act. 

For example, Article 13 of the Standard Provisions of the Dealer Agreement, 

“Breaches and Opportunity to Remedy,” describes fourteen actions that constitute 

breaches of the Dealer Agreement. It further provides that a dealer “will be given 

the opportunity to respond in writing within 30 days of receipt of the notice, 

explaining or correcting the situation to General Motors satisfaction.” Id. at 18. 

Only if the [d]ealer’s response does not demonstrate that the breach has been 

corrected, or explain the circumstances to General Motors satisfaction” is 

termination warranted, “upon written notice to [d]ealer” and “effective 60 days

following [d]ealer’s receipt of the notice.” Id. at 19 (emphasis added). Article 14 

of the Standard Provisions of the Dealer Agreement similarly identifies certain acts 

or events which permit GM to terminate the Dealer Agreement, such as the 

dealer’s insolvency, felony conviction, or submission of false applications or 

claims for payment, credit, discount, or allowance. Id. at 19-20. GM did not 

follow the procedure outlined in the Dealer Agreement, including the notice, 

opportunity to cure, and 60 day written notice. Notwithstanding the foregoing, 

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West addressed the overwhelming majority of the allegations against him by GM 

prior to the February 8, 2011 constructive termination. 

As to arbitration, Article 16 of the 2010 Standard Provisions of the Dealer 

Agreement directly conflicts with the 2008 Arbitration Agreement. Specifically, 

Article 16 requires mandatory mediation under the General Motors Dispute 

Resolution Process and expressly provides for the filing of an action in court.

1

 Id. 

at 25. In relevant part, it states as follows: 

Dealer and General Motors recognize that it is desirable 

to resolve disputes in a fair, prompt, and cost efficient 

manner. Therefore, except for the matters specified 

below, and except as otherwise specifically agreed upon 

in writing between Dealer and General Motors, Dealer 

and General Motors agree to mediate any dispute arising 

under this Agreement or applicable law using the General 

Motors Dispute Resolution Process then in effect... 

*** 

Dealer or GM may file simultaneously with a court or 

administrative agency if necessary to retain its rights 

under applicable law. 

*** 

Mediation under the General Motors Dispute Resolution 

Process is mandatory, but mediation is not binding on the 

parties unless the parties agree upon a solution. If a 

dispute is not resolved through mediation, Dealer and 

General Motors may agree to resolve this dispute through 

 

1 Article 16 excludes certain matters from mandatory mediation; however, none of 

those matters apply here.

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voluntary binding arbitration available under the General 

Motors Dispute Resolution Process. 

Id. at 25 (emphasis added). The express terms of the 2010 Dealer Agreement 

specifically permit a party to file any matter in court and do not require arbitration. 

This provision is irreconcilable with the 2008 Arbitration Agreement and further 

demonstrates that the 2010 Dealer Agreement was intended to supersede the 2008 

Arbitration Agreement. 

The 2008 Stockholders Agreement and Arbitration Agreement 

 In or about 2008, Superior Chevrolet began experiencing a decline in 

profitability like many automobile dealerships throughout the country as a result of 

the unprecedented economic downturn. This decline intensified as a result of 

GM’s well-documented financial difficulty and eventual bankruptcy and 

reorganization. To inject additional capital into Superior Chevrolet, West 

contributed substantial personal funds. Despite West’s efforts, on December 17, 

2008, he surrendered his 100% ownership of the dealership and agreed to sell a 

portion of the shares in Superior Chevrolet to GM to raise capital for the dealership 

(the “2008 Stockholders Agreement”). A copy of the 2008 Stockholders 

Agreement is attached as Exhibit B to the Wolin Cert. In connection with that 

transaction, GM directed West to sign an Arbitration Agreement or lose GM’s 

participation in the stock investment. Accordingly, on December 17, 2008, West 

signed the Arbitration Agreement, which is referenced in the 2008 Stockholders 

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Agreement at ¶2.2(e). A copy of the 2008 Arbitration Agreement is attached as 

Exhibit C to the Wolin Cert. 

The 2010 Stockholders Agreement 

Subsequently, on January 28, 2010, West agreed to enter into a new 

Stockholders Agreement which terminated the first Stockholder Agreement. A 

copy of the 2010 Stockholders Agreement is attached as Exhibit D to the Wolin 

Cert. The 2010 Stockholders Agreement expressly supersedes the 2008 

Stockholders Agreement. Id. at §10.1 (stating “[t]his Agreement comprises the 

complete and entire understanding between the parties with respect to the subject 

matter of this Agreement and supersedes any and all prior written or oral, or 

contemporaneous oral, agreements between or among them.”). Unlike the 2008 

Stockholders Agreement which contained an arbitration provision, the 2010 

Stockholders Agreement does not refer to the 2008 Arbitration Agreement and is 

silent on the issue, as is the 2010 Dealer Agreement. 

LEGAL ARGUMENT

I. The Arbitration Agreement Does Not Govern West’s Claims 

Against GM 

The Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1-16, governs the 

application and interpretation of arbitration clauses in commercial contracts for 

both state and federal courts. Perry v. Thomas, 482 U.S. 483, 489, 107 S.Ct. 2520, 

2525, 96 L.Ed.2d 426 (1987). The FAA provides that “a party aggrieved by the 

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alleged ... refusal of another to arbitrate under a written agreement for arbitration 

may petition [a] United States district court ... for an order directing that such 

arbitration proceed in the manner provided for in such agreement.” 9 U.S.C. § 4. 

The FAA directs federal courts to stay legal proceedings when a particular dispute 

is found to be subject to contractual arbitration. Id. § 3. 

While there is generally considered to be a strong federal policy favoring 

arbitration, that policy is tempered by the principle that the law does not compel a 

party to submit a dispute to arbitration unless he has contractually agreed to do so. 

United Steelworkers v. Warrior and Gulf Navigation Co., 363 U.S. 574, 582, 80 S. 

Ct. 1347, 1353 (1960). A court also may not expand the application of an 

arbitration clause beyond its intended scope. First Options of Chicago, Inc. v. 

Kaplan, 514 U.S. 938, 943, 115 S.Ct. 1920, 1923, 131 L.Ed.2d 985 (1995). 

Moreover, the issue of arbitrability is “a matter to be determined by the 

courts on the basis of the contract entered into by the parties.” Atkinson v. Sinclair 

Refining Co., 370 U.S. 238, 241, 82 S. Ct. 1318, 1320 (1962). Thus, when 

presented with a question of arbitrability, the court will defer to the parties' intent 

to determine: (1) whether a valid arbitration agreement exists; and (2) whether the 

scope of the parties' dispute falls within that agreement. AT & T Technologies, Inc. 

v. Communications Workers of America, 475 U.S. 643, 649, 106 S.Ct. 1415, 1418 

(1986). 

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As set forth below, GM’s Motion to Compel Arbitration should be denied 

because West’s claims do not fall within the scope of the 2008 Arbitration 

Agreement. For that same reason, GM’s Motion to Dismiss West’s claims, or in 

the alternative, to stay the action, should be denied as well. 

A. The Scope of West’s Claims Do Not Fall Within the 

Arbitration Agreement 

The heart of West’s claims arise from GM’s improper constructive 

termination of the franchise relationship in violation of the New Jersey Franchise 

Practices Act and in breach of the 2010 Dealer Agreement.2

 Even though Superior 

Chevrolet is technically still operating, there was undoubtedly a constructive 

termination of the franchise relationship of which West was an integral component, 

and it is undisputed that he has standing under the New Jersey Franchise Practices 

Act because his injuries are separate and distinct from Superior. See Darrick 

 

2 In determining whether a choice-of-law provision in a contract is enforceable, 

federal courts sitting in diversity apply the choice-of-law rules of the forum state. 

Gibbs ex Rel. Gibbs v. Carnival Cruise Lines, 314 F.3d 125, 131 (3d Cir. (N.J.) 

2002). Regardless of any contractual choice of law provisions, it is clear that New 

Jersey law applies under the “most significant relationship” test. See P.V. ex rel. 

T.V. v. Camp Jaycee, 197 N.J. 132, 136 (2008) (utilizing the Second Restatement’s 

“most significant relationship” test to determine what law should apply); 

Instructional Systems, Inc. v. Computer Curriculum Corporation, 130 N.J. 324, 

341-42 (1992) (relying on Second Restatement and applying New Jersey franchise 

law despite a contractual choice of law provision.). In addition, it is well-settled 

that a choice of law provision alone will not abrogate the right of a franchisee 

located in New Jersey to invoke the protections of the Franchise Practices Act. See

Instructional Systems, Inc., 130 N.J. at 343-45. Plaintiff will submit supplemental 

briefing on the choice of law issue if the Court believes it would be helpful to its 

consideration of this motion. 

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Enterprises v. Mitisubishi Motors Corporation, 2007 WL 2893366 (D.N.J. 2007). 

In addition, because GM held a majority share of the dealership and improperly 

ousted West, it would be absurd for the GM-controlled dealership to initiate a 

Franchise Practices Act (or other) claim against itself. See Kavanaugh v. Ford 

Motor Co., 353 F.2d 710 (7th Cir.1965) (holding that because Ford owned all of 

the voting stock in the dealership corporation, the only way for the dealership to 

avail itself of the protections of the Automobile Dealers Day in Court Act would 

be to “pierce the corporate veil” and allow the individual dealer/operator to protect 

the dealership’s interests). 

When GM constructively, circuitously and indirectly terminated West’s 

franchise relationship and took away his dealership by relying upon the 2010 

Stockholders Agreement, GM was not insulated from the requirements of the 2010 

Dealer Agreement and the Franchise Practices Act, both of which required, among 

other things, 60 day written notice in advance of termination. Indeed, a 

franchisor’s capricious termination of a franchise is the primary concern of the Act, 

which is remedial in purpose and focuses on the need to protect franchisees from 

inequitable treatment by economically more powerful franchisors. See Westfield 

Centre Serv. Inc v. Cities Serv. Oil Co., 86 N.J. 453, 464-465 (1981). 

As this Court recognized at the hearing on West’s temporary restraining 

order, Shell Oil Company v. Marinello, 63 N.J. 402 (1973) is a leading Supreme 

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Court of New Jersey case on franchise law. Shell Oil held that a franchisor cannot 

rely upon an ancillary agreement to circumvent the Franchise Practices Act’s 

requirements. Id. at 410-11. But this is exactly what GM is trying to do. The 

Supreme Court flatly rejected Shell’s argument that its termination of a lease 

agreement with Marinello, a franchisee, was independent of its dealer agreement 

with Marinello, calling it “pure sophistry” because the two agreements were “part 

of an integrated business relationship.” Id. at 407. Thus, when the Court 

concluded that Shell had not complied with the provisions of the Franchise 

Practices Act, it also held that Shell did “not have the unilateral right to terminate, 

cancel or fail to renew . . . the lease.”3

 Id. 

The core of GM’s argument for its constructive termination of West’s 

franchise relationship is that West engaged in fraud, self-dealing and other 

misconduct. However, GM’s own documents confirm that the overwhelming 

majority of the alleged irregularities underlying these allegations were, in fact, 

remedied prior to the February 8, 2011 constructive termination. See, e.g., January 

21, 2011 Letter from GM to West, attached as Exhibit D to the Verified 

Complaint; Affidavit of Tim Rinke to Defendant’s Opposition to Plaintiff’s Order 

 

3 While the Court noted that the lease between the parties antedated the effective 

date of the New Jersey Franchise Practices Act, the Court concluded that the Act 

“merely put into statutory form the extant public policy of this State” and 

accordingly held, inter alia, that such public policy required that a requirement of 

termination for good cause (identical to the Act’s requirement) be read into the 

lease and franchise agreements. Shell Oil, 63 N.J. at 410-411.

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to Show Cause Application, Exh. B, December 14, 2010 Special Meeting Minutes 

at 5 (wherein GM conceded that West “was able to verbally explain most of the 

expenses presented”). The 2010 Dealer Agreement addresses the requirement that 

notice and an opportunity to cure certain acts be provided before GM can proceed 

with termination. Wolin Cert., Exh. A, Standard Provisions at 18-19. GM’s efforts 

to divert the Court’s attention away from the 2010 Dealer Agreement despite its 

clear application is yet another example of its improper attempt to carve itself out 

of the enforceable provisions of the 2010 Dealer Agreement, and to instead rely 

upon a document that was not part of the Dealer Agreement.4

In Fit Tech, Inc. v. Bally Total Fitness Holding Corp., 374 F.3d 1, 9-10 (1st 

Cir. 2004), the court refused to apply a general arbitration clause in an employment 

contract to claims made under an asset purchase agreement between same parties. 

In that case, the arbitration clause in the employment contract provided that “[a]ny 

controversy or claim arising out of or relating to the [employment agreement], or 

the breach thereof, shall be settled by arbitration.” Id. at 9. Bally argued that this 

clause extended to claims made under the asset purchase agreement because the 

employment agreements were referenced in, and required by, the purchase 

 

4 Unlike the plaintiff in the inapposite case cited by GM, Arciniaga v. General 

Motors Corp., 460 F.3d 231 (2d Cir. 2006), who conceded that his claims arose out 

of only the amended stockholders agreement and not the dealer sales and service 

agreement, the heart of West’s claims arise from the 2010 Dealer Agreement. Id. at 

235. 

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agreement; certain provisions in the purchase agreement were related to the 

plaintiff's continued employment; and the integration clause in the purchase 

agreement referred “to the purchase agreement and documents referred to in it as 

comprising the complete and exclusive agreement between the parties.” Id. at 10. 

The court recognized that there were inter-relationships between the agreement and 

found that they related to the same business sale and one document provided 

context for the other. 

Significantly, however, the court found that the two documents dealt with 

different aspects of the sale, one addressed asset purchase and the other addressed 

subsequent employment. As the court explained, “[n]o one can seriously argue that 

clauses can be plucked at random from one agreement and inserted into the other.” 

Id. The court found that the general arbitration clause appeared only in the 

employment agreements, and referred to disputes arising under or related to that 

agreement. Further, the court explained, not only was an arbitration clause omitted 

from the purchase agreement (“although it would have been child's play to insert it 

there”), but also the purchase agreement contained a different, and narrower, 

dispute resolution process, that was inconsistent with the arbitration clause in the 

employment agreement. Id. The court thus rejected Bally's argument that the 

arbitration clause in the employment contract covered claims brought under the 

asset purchase agreement. Id. at 10-11. 

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The sound reasoning in Fit Tech should be applied to the case sub judice. As 

in Fit-Tech, the 2010 Dealer Agreement and the 2008 Arbitration Agreement 

contain separate dispute resolution processes – the recent 2010 Dealer Agreement 

requires mandatory nonbinding mediation before engaging in any arbitration, and 

expressly provides that either party to that agreement may simultaneously file an 

action in court to preserve their rights, while the 2008 Arbitration Agreement 

requires mandatory binding arbitration. If the 2008 Arbitration Agreement governs 

disputes arising out of the 2010 Dealer Agreement, then the mandatory mediation 

provision and the provision permitting the parties to raise disputes in Court in the 

2010 Dealer Agreement would be superfluous. See Fit Tech, 374 F.3d at 10-11. 

In determining the clarity or ambiguity of the contract terms, however, a court 

should avoid interpreting contractual language so that a term of the contract is 

rendered meaningless or superfluous. Penske Logistics, Inc. V. KLLM, Inc., 285 

F.Supp.2d 468, 474 (D.N.J. 2003) (“[u]nder the principles of contract 

interpretation, a contract should not be given an interpretation which renders a term 

or terms superfluous or meaningless....”) (internal citation omitted). See also 

Restatement (Second) of Contracts, § 203 (“[A]n interpretation which gives a 

reasonable, lawful, and effective meaning to all the terms is preferred to an 

interpretation which leaves a part unreasonable, unlawful, or of no effect....”). The 

only reasonable interpretation of the 2010 Dealer Agreement is to give meaning to 

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its dispute resolution provisions, which call for mandatory mediation and permit 

either party to simultaneously file a court proceeding. 

Additionally, the more recent 2010 Dealer Agreement does not contain any 

references to the 2008 Arbitration Agreement, nor does it incorporate any of the 

arbitration provisions contained in that Agreement. In fact, Section Five of the 

Dealer Agreement provided GM with such an opportunity, yet no “Additional 

Agreements and Understandings” were included. When GM demanded that West 

execute the Dealer Agreement in 2010, it was free to add a provision which would 

have directed that any disputes under the Dealer Agreement would be submitted to 

arbitration. Had GM intended to submit to arbitration any disputes arising out of 

the 2010 Dealer Agreement under the 2008 Arbitration Agreement, it could have 

simply inserted either in Paragraph 5 of the 2010 Dealer Agreement or in the 

Standard Provisions. GM did neither, and having failed to do so, GM cannot rely 

on the 2008 Arbitration Agreement for authority to submit the present disputes to 

arbitration. 

Similarly, even if West’s claims are deemed to arise out of the 2010 

Stockholders Agreement in addition to the 2010 Dealer Agreement, the 2008 

Arbitration Agreement does not apply. Like the 2010 Dealer Agreement, the 2010 

Stockholders Agreement is silent as to the application of any arbitration provision 

or agreement. Moreover, unlike the 2008 Stockholders Agreement, which 

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expressly incorporated language from the 2008 Arbitration Agreement, the 2010 

Stockholders Agreement omits any reference to arbitration, which suggests that 

GM did not intend for it to apply to thereto. See Verizon New Jersey, Inc. v. 

DMJM Harris, Inc., 2009 WL 1283173, *4 (D.N.J. May 1, 2009) (stating that 

under New Jersey law, “[t]he general rule is that a subsequent contract covering 

the same subject matter and made by the same parties, but containing terms 

inconsistent with the former contract so that the two cannot stand together, 

rescinds, supersedes and substitutes for the earlier contract and becomes the only 

agreement on the part of the parties on the subject matter.”) (internal citation 

omitted). To the extent there is any ambiguity, it should be construed against the 

drafter. Atlantic City Racing Ass’n v. Sonic Financial Corp., 90 F.Supp.2d 497, 

506 (D.N.J. 2000) (internal citation omitted). In addition, the 2010 Stockholders 

Agreement contains a merger clause. Under basic contract interpretation 

principles, when a contract has a merger clause stating that the agreement between 

the parties is the final agreement, the prior contract is superseded by the later 

contract and is unenforceable. See Verizon New Jersey, Inc., supra. 

Under these circumstances, as a matter of law, the 2008 Arbitration 

Agreement is not controlling with respect to either the 2010 Dealer Agreement or 

the 2010 Stockholders Agreement. See Fit Tech, 374 F.3d at 9-10. Accordingly, 

the Court should deny GM’s Motion to Compel. Finally, even if, arguendo, all but 

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one of West’s claims were governed by the arbitration agreement, the action 

cannot be dismissed, as GM seeks. Courts may enter a stay where the complaint 

alleges causes of action that are not subject to arbitration in addition to those that 

the court concludes must be arbitrated. See Central Jersey Freightliner, Inc. v. 

Freightliner Corp., 987 F.Supp. 289, 300 (D.N.J. 1997). Requiring West to 

arbitrate all of his causes of action, including his claims for injunctive relief, runs 

afoul of well-established Third Circuit law. See, e.g., Ortho Pharmaceutical Corp. 

v. Amgen, Inc., 882 F.2d 806, 811-13 (3d Cir. (Del.) Aug. 17, 1989). 

II. The Federal Arbitration Act Does Not Preclude This Court’s Ability 

to Consider and Grant Preliminary Injunctive Relief Under the NJFPA 

As set forth above, the 2008 Arbitration Agreement is not enforceable and 

therefore, this Court may enter preliminary injunctive relief. See Ortho, 882 F.2d 

at 811-13. In addition, as this Court has already determined, even if the 2008 

Arbitration Agreement is deemed enforceable (which it is not), the Court still has 

the authority to enter preliminary injunctive relief under well-established Third 

Circuit authority, which holds that the existence of an arbitration agreement alone 

does not displace the Court’s jurisdiction to consider and award preliminary 

injunctive relief. See Ortho, 882 F.2d at 811-813. See also Performance 

Unlimited, Inc. v. Questar Publishers, Inc., 52 F.3d 1373 (6th Cir. 1995). Indeed, 

the Court has already granted the present temporary restraining order pursuant to 

this authority. 

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III. West is Entitled To Expedited Discovery 

West seeks limited expedited discovery from GM with respect to his 

forthcoming application for a preliminary injunction. Specifically, the following is 

requested in connection with the events of February 8, 2011: (i) documents 

including meeting minutes and communications of the Motors Holding Investment 

and Finance Committees regarding GM’s decision to provide no advance notice to 

West and forcibly remove him from the premises on February 8, 2011; (ii) GM’s 

policies or procedures with respect to impaired dealerships that were in effect 

during the applicable time period; (iii) deposition(s) of the GM individuals who 

were involved in the decision to take the above actions; and (iv) a subpoena for 

Superior Chevrolet’s Wachovia Bank records regarding the September 2010 

working capital loan account transactions and deposition of the bank representative 

involved in the transactions. See Proposed Expedited Document Requests, attached 

as Exhibit E to the Wolin Cert. This information is particularly critical given that 

most of the alleged allegations against West were resolved and therefore, moot, by 

February 8, 2011, when GM constructively terminated West’s franchise. Thus, the 

pretextual nature of the termination further demands limited, narrowly tailed 

discovery to permit West to make his application for preliminary injunctive relief 

for reinstatement to the board of directors, as discussed below. 

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The Federal Rules of Civil Procedure authorize a court to permit parties to 

depart from the usual schedule and sequence of discovery where, as here, a party 

will be prejudiced by the normal pace of pretrial procedures. Fed. R. Civ. P. 26(d), 

30(a), and 34(b). Such discovery “will be appropriate in some cases, such as those 

involving requests for a preliminary injunction.” Fed. R. Civ. P. 26 Advisory 

Committee Note (emphasis added). In addition, the District Court has routinely 

permitted expedited discovery to permit the parties to prepare for a hearing on a 

preliminary injunction in order to prevent further injury to the plaintiff in cases 

involving violations of the Franchise Practices Act. See eg., Atlantic City Coin & 

Slot Service Co., Inc. v. IGT, 14 F.Supp.2d 644, 646 (D.N.J. 1998) (referencing the 

parties’ engagement in expedited discovery); Beilowitz v. General Motors Corp., 

233 F.Supp.2d 631, 632 (D.N.J. 2002) (same). 

As stated in Better Packages, Inc. v. Zheng, 2006 WL 1373055, at *2 

(D.N.J. May 17, 2006), there are two standards used to determine whether 

expedited discovery is appropriate. Id. The first is the so-called “reasonableness 

standard,” which “requires the party seeking the discovery to prove that the 

requests are reasonable under the circumstances.” Id. The second standard is a 

multi-part test set forth in Notaro v. Koch, 95 F.R.D. 403 (S.D.N.Y. 1982) and 

requires a plaintiff seeking expedited discovery to show: (1) irreparable injury; (2) 

some probability of success on the merits; (3) some connection between the 

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expedited discovery and the avoidance of irreparable injury, and (4) some evidence 

that the injury that will result without expedited discovery looms greater than the 

injury the defendant will suffer if the expedited relief is granted. Id. at 405; 

GucciAmerica, Inc. v. Daffy’s, Inc., 2000 WL 1720738, at *5-6 (D.N.J. Nov. 14, 

2000) (applying Notaro factors in denying a request for Gucci’s expedited 

discovery because the request for expedited discovery was not in aid of an 

anticipated application for preliminary injunctive relief and because the expedited 

discovery would provide Gucci with the information it desired as the ultimate goal 

of its litigation). As set forth below, West satisfies either standard for obtaining 

expedited discovery but the reasonableness test is applicable here. 

The reasonableness test is appropriate where, as here, “a plaintiff seeks 

expedited discovery in order to prepare for a preliminary injunction hearing”. See 

Merrill Lynch, Pierce, Fenner & Smith, Inc. v. O'Connor, 194 F.R.D. 618, 

624 (N.D.Ill. 2000) (internal citation omitted) (emphasis in the original); Daffy’s, 

Inc., 2000 WL 1720738, at *6 (noting that some courts have found Notaro’s fourfactor test inappropriate where the discovery was sought only to gather evidence to 

support preliminarily injunctive relief.) Where the expedited discovery is sought 

for the purpose of making an application for preliminary injunction, it “does not 

make sense to use preliminary injunction analysis factors to determine the 

propriety of an expedited discovery request. Rather..., it makes sense to examine 

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the discovery request, as we have done, on the entirety of the record to date and the 

reasonableness of the request in light of all of the surrounding circumstances.” 

Merrill Lynch, 194 F.R.D. at 624. Courts have been similarly guided by a “good 

cause” test akin to the reasonableness inquiry made in Merrill Lynch, which 

weighs the need for expedited discovery by considering the overall administration 

of justice against the prejudice to the responding party. Better Packages, Inc., 

2006 WL 1373055, at *3 (internal citations omitted). 

Here, West is seeking the expedited discovery to support his application for 

preliminary injunctive relief to be reinstated to the Superior Chevrolet board of 

directors. In addition, the narrow scope of the proposed expedited discovery, 

together with the absence of any prejudice to GM, weigh in favor of West. 

Further, courts have held that “[e]xpedited discovery is appropriate where it would 

‘better enable the Court to judge the parties' interests and respective chances for 

success on the merits at a preliminary injunction hearing.” Philadelphia 

Newspapers Inc. v. Gannett Satellite Information Network., 1998 WL 404820 at *2 

(E.D.Pa. July 15, 1998) (internal citation omitted). If narrowly tailored to fit the 

needs of a preliminary injunction hearing, leave to conduct expedited discovery 

should be granted. Entertainment Tech., Corp. v. Walt Disney Imagineering, 2003 

WL 22519440 at *3 (E.D.Pa. Oct. 2, 2003). For these reasons, expedited 

discovery is reasonable in this matter and should be permitted. 

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Even if the Notaro standard applies to West’s request for expedited 

discovery, West has satisfied its requirements. Irreparable harm will result if 

expedited discovery is not granted. It is evident that normal discovery procedures 

are inadequate at this time because all of the information central to West’s claims 

is entirely within GM’s possession, custody and control and can easily be lost, 

especially during this transition period at the dealership in West’s forced absence. 

Without an independent accounting at the present time, it will be impossible for 

anyone to be able to compare the status quo as it existed on February 7, 2011 

before GM constructively terminated the franchise relationship and removed West, 

with any post-hoc determination of the state of the dealership. It is essential that 

the records be preserved and not lost or altered or destroyed, inadvertently or 

otherwise, and that West have expedited access to these records for the limited 

purpose of making an application for preliminary injunctive relief. Prompt access 

to these records is particularly critical given the abrupt circumstances of West’s 

termination, which deprived him of access to any of the records of the dealership 

or the ability to obtain essential information in connection with the dealership, 

leaving him at a singular disadvantage. Such rank inequity cannot be permitted to 

stand, where the prejudice to GM is nonexistent and the prejudice to West is 

extreme. 

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In addition, if this Court compels arbitration, West may not be afforded 

complete discovery as he would under the Federal Rules of Civil Procedure, or be 

protected by the Federal Rules’ document preservation obligations imposed upon 

GM, which further highlight the need of preserving the documents and providing 

West with access now. Indeed, the loss of documents relevant to West’s claims 

would constitute irreparable harm, in and of itself. See Lanza v. New Global 

Communications, Inc., 2006 WL 2759215, at * 4 (N.J. Super. Ch.. Oct. 21, 2005) 

(ordering the continuation of temporary restraints to preserve and provide access to 

records where defendant had control of all of the records relevant to plaintiff’s 

claims). Thus, there is similarly a connection between the documents requested 

and the avoidance of irreparable injury. 

Plaintiff satisfies the second prong of the Notaro test in that he has shown 

some probability of success on the merits. It is undisputed that GM failed to 

provide the 60 day written notice of termination as required by both the New 

Jersey Franchise Practices Act and the 2010 Dealer Agreement. In addition, as will 

be demonstrated in West’s application for preliminary injunctive relief, it is 

evident that the status quo cannot be maintained at this time unless, inter alia, 

West is permitted to attend the meetings of the Board of Directors of Superior 

Chevrolet. This is the only way to ensure that GM does not take any actions that 

jeopardize West’s interests, such as the inadvertent loss of records that pertain to 

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West’s claims, or taking steps to sell or transfer the dealership or the dealership 

property by considering offers from prospective buyers and/or franchisees. 

West’s reinstatement is necessary injunctive relief from the irreparable harm 

resulting from his loss of the franchise relationship in violation of GM’s 

compliance with statutory and contractual obligations. It is well-settled that the 

loss of a franchise may constittue irreparable injury justifying the issuance of 

injunctive relief. See Gelardi Corp. v. Miller Brewing Co., 421 F.Supp. 233, 236 

(D.N.J. 1976) (“[T]he loss of business and good will, and the threatened loss of the 

enterprise itself, constitute irreparable injury to the plaintiff sufficient to justify the 

issuance of a preliminary injunction.”); See also Saturn of Denville v. General 

Motors Corp., 2009 WL 1545559, at *6 (D.N.J. May 29, 2009); Semmes Motors, 

Inc. v. Ford Motor Co., 429 F.2d 1197, 1205 (2d Cir. 1970) (“[T]he right to 

continue a business in which [plaintiff] had engaged for twenty years ... is not 

measurable in monetary terms.”); Atlantic City, 14 F.Supp.2d at 667 (noting with 

approval that “in the Third Circuit, Semmes has given rise to a significant progeny 

of courts following its lead in concluding that the termination of a long-standing 

business relationship can result in irreparable harm.”). 

West did not simply lose his employment as a result of GM’s actions. West 

lost much more – his livelihood, his business, and his ability to continue making a 

living as a GM dealer – all of which constitute irreparable harm. See Gelardi 

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Corp.; Saturn of Denville; Semmes Motors, Inc.; Atlantic City, supra. For the past 

decade, West has been a GM dealer exclusively. GM unilaterally ousted West and 

constructively terminated his franchise relationship without the 60 day notice 

mandated under both the 2010 Dealer Agreement and the New Jersey Franchise 

Practices Act – provisions that were intended to protect him as a franchisee from 

such capricious action. Unlike an employee who is terminated and can seek 

similar employment elsewhere, West does not have the ability to simply enter into 

a new franchise with another automobile manufacturer, especially while GM’s 

meritless allegations of West’s misconduct remain unredressed. Absent this 

Court’s intervention, West will remain without relief and without any ability to 

monitor his significant interest in the dealership that was improperly stripped by 

GM, for the duration of the adjudication of his claims against GM. 

By contrast, West’s reinstatement as a board member will have no effect on 

GM or the day-to-day operations of the dealership. In fact, GM will suffer no 

prejudice or inconvenience from West being permitted to monitor and participate 

as a board member because GM will exercise its two votes against West’s one 

vote, thereby permitting GM to do whatever the board deems is in the best interest 

of the dealership. GM’s ability to continue making board decisions will remain 

unaffected. The only thing that will change will be West’s ability to monitor the 

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decisions that impact his interest in the dealership, which are taking place in his 

prolonged absence from the day-to-day operations of the dealership. 

Finally, there is no harm or prejudice to GM if the expedited discovery is 

granted in this matter. In fact, the prejudice runs the other way, to West, who was 

deprived of relevant records during his forcible removal from Superior Chevrolet 

and has been forced to rely upon the intervention of this Court to access even the 

most fundamental document governing the franchise relationship between the 

parties, the 2010 Dealer Agreement. 

For all of these reasons, West respectfully requests that this Court grant his 

application for limited, expedited discovery for the purpose of West’s application 

for a preliminary injunction to be reinstated to the Superior Chevrolet Board of 

Directors. 

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CONCLUSION

 For all of the reasons set forth herein, Glen W. West, Sr. respectfully 

requests that this Court deny General Motors, LLC’s Motion to Compel 

Arbitration and to Dismiss the Complaint or, in the Alternative, Stay the Motion, 

and grant West’s Cross-Motion for Expedited, Limited Discovery. 

Dated: March 9, 2011 Respectfully submitted, 

 SAIBER LLC 

 By: /s/ Marc E. Wolin 

 Marc E. Wolin (mew@saiber.com) 

 Una Y. Kang (ukang@saiber.com)

 18 Columbia Turnpike, Suite 200 

 Florham Park, NJ 07932 

 Tel: (973) 622-3333 

 Fax: (973) 622-3349 

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