REPORT AND RECOMMENDATION

DAVID A. BAKER, Magistrate Judge.

TO THE UNITED STATES DISTRICT COURT

This cause came on for consideration following the District Judge's March 17, 2014 referral of several motions (Doc. 62). Pursuant to the Court's direction (Doc. 63), the parties filed a Joint Status Report (Doc. 69), and the Court heard argument (Doc. 70). For the reasons that follow, the undersigned finds that: 1) with respect to the claims between Plaintiff Bigge Crane and Rigging Co. ("Bigge") and Defendant Siemens Energy, Inc. ("Siemens"), no case or controversy for this Court is presented, and 2) with respect to claims between Bigge and Defendants Entergy Operations, Inc. and Entergy Arkansas, Inc. (collectively "Entergy"), venue of this matter is more appropriately in the Arkansas District Court, and therefore transfer of the case is warranted. It is therefore respectfully recommended as follows:

Background

The following pertinent matters are taken from the papers filed by the parties. Plaintiff Bigge is a California corporation with its principal place of business in California. Bigge is in the business of providing crane services and related services. Siemens is a Delaware corporation with its principal place of business in Orlando, Florida. Defendant Entergy Arkansas, Inc. ("EAI") is an Arkansas Corporation with its principal place of business in Arkansas. Defendant Entergy Operations, Inc. ("EOI") is a Delaware Corporation with its principal place of business in Mississippi.

This action arises from a March 31, 2013 incident at Entergy's Arkansas Nuclear One facility ("ANO") during a stator replacement project in which a 500-ton stator being moved fell (the "Incident"), resulting in personal injury to third parties including one death, as well as damage to the nuclear plant building and equipment in the area. Entergy (EOI, the operator of the facility, as agent for EAI, the owner) had entered into a contract for the stator replacement with Siemens (the "Alliance Agreement" or "AA"). The Alliance Agreement (Doc. 38-1) provides that:

(AA ¶ 56.5; see also ¶ 56.4 ("binding arbitration . . . shall be the exclusive method of resolving . . . disputes" that cannot be resolved through mediation or negotiation).)

Siemens subcontracted Bigge to perform certain tasks which included moving the stator (the "Master Services Agreement" or "MSA") (Doc. 38-2). There is no arbitration clause in the Master Services Agreement, but there is a dispute resolution clause, which contemplates informal efforts to resolve disputes initially (which "may include use of a mutually agreed alternative dispute resolution mechanism") and, if the parties are unable to resolve the dispute by mutual agreement, any legal action is to be filed in the state or federal courts of Orlando, Florida.1

Following the incident, on July 12, 2013, Entergy sued Bigge, Bigge's employee, and others in Arkansas state court, asserting claims for negligence and gross negligence arising out of the collapse.2 Siemens is not a party to that action, which sounds in tort, not contract. Bigge and its employee filed a motion to compel arbitration of those claims as against them on November 26, 2013. The state court denied the motion on March 12, 2014. Bigge filed a notice of appeal of that order, which is pending. According to the Joint Status Report filed by the parties in this case, to date, three additional lawsuits have been filed in the Circuit Court of Pope County, Arkansas, relating to the Incident.3

Bigge filed its original Complaint in this case on August 30, 2013, seeking a declaratory judgment regarding the Alliance Agreement and the MSA (Doc. 1). In essence, Bigge argued that it is a third party beneficiary of the Alliance Agreement insurance provisions, and sought a declaration limiting its liability for the Incident under the AA and MSA. Entergy moved to dismiss the matter and for the Court to abstain from exercising jurisdiction, contending that Bigge was forum shopping, and "seeking to litigate the exact same issues presently being litigated in Arkansas." (Doc. 25). Alternatively, Entergy sought dismissal for lack of personal jurisdiction and improper venue. Id. Siemens moved to dismiss the case, pending arbitration (Doc. 30). In response to these motions, Bigge filed an Amended Complaint (Doc. 38), which, among other things, includes the following allegation:

(Doc. 38, ¶2).

The instant motions followed.

Issues and Analysis

As set forth at hearing and in the papers and responses, the overriding issue presented is where the merits of this litigation should be decided. The quagmire presented is as follows:

Under the forum selection clause in the MSA, Bigge was obliged to institute any suit against Siemens in Florida, although its counsel admitted at hearing that Florida has no real world connection with this dispute and Bigge does not object to transfer of venue to Arkansas. Further, as all parties conceded at hearing, any disputes between Siemens and Entergy with respect to the Alliance Agreement are subject to arbitration, and Siemens and Bigge agree that any claim Bigge has with respect to the Alliance Agreement is required to be arbitrated, as well. In the Agreed Motion and Bigge's response (Doc. 43), Bigge and Siemens agree that, to the extent the claims made by Bigge under the Master Services Agreement implicate Siemens' rights under the Alliance Agreement, they, too, are arbitrable.4

For its part, Entergy does not necessarily disagree that arbitration in one forum would be desirable, but notes that the state court recently denied Bigge's attempt to compel arbitration of that tort action. Siemens, who is not a party to Entergy's state court tort action against Bigge and is understandably not eager to litigate against its customer, has not instituted an arbitration against Entergy. Moreover, Entergy insists that only an Arkansas District Court can compel it to arbitrate in Arkansas. Too, although Siemens has moved to compel arbitration of Bigge's claims, it has not instituted any arbitration proceeding against Bigge to date — in Florida, Arkansas, or elsewhere.

As noted at hearing, while counsel seem to be in agreement that a single resolution of this matter would be beneficial to all concerned in terms of logistics, cost, and finality, it appears that the business realities of the dispute have caused counsel to conclude that, to borrow a phrase, "you can't get there from here." The Court finds that Bigge's claims against Siemens are either premature or moot and therefore do not present a case or controversy cognizable in this forum, and Bigge's claims against Entergy should proceed in Arkansas.

Lack of a case or controversy

Article III of the Constitution limits the jurisdiction of the federal courts to actual "Cases" or "Controversies." U.S. Const. art. III, § 2, cl. 1. This "requirement subsists through all stages of federal judicial proceedings . . .; it is not enough that a dispute was very much alive when suit was filed." Lewis v. Continental Bank Corp., 494 U.S. 472, 477, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990), see also Brooks v. Georgia State Bd. Of Elections, 59 F.3d 1114, 1119 (11th Cir.1995) (case must be viable at all stages of the litigation). A case is moot when the issue presented is no longer live, the parties lack a legally cognizable interest in its outcome, or a court decision could no longer provide meaningful relief to a party. Troiano v. Supervisor of Elections in Palm Beach County, 382 F.3d 1276, 1281 (11th Cir. 2004) (noting that mootness is jurisdictional). Similarly, claims that are premature do not present a ripe "case" for resolution. "A claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all." Atlanta Gas Light Co. v. FERC, 140 F.3d 1392, 1404 (11th Cir.1998) (quoting Texas v. United States, 523 U.S. 296, 300, 118 S.Ct. 1257, 1259, 140 L.Ed.2d 406 (1998)).

Applied here, to the extent Bigge presents claims as a purported third party beneficiary of the Alliance Agreement against Siemens, both of these parties agree that those claims are to be arbitrated. While the MSA does not contain an arbitration provision, both Bigge and Siemens agree that, to the extent Bigge's claims under the MSA "implicates, construes, or impacts Siemens' rights under the Alliance Agreement," that claim, too, is for the arbitrator.5 Finally, to the extent there is any ambiguity as to whether any claim under the MSA is a "claim, dispute or controversy arising out of or relating to [the Alliance] Agreement," both Bigge and Siemens acknowledge that "the Alliance Agreement clearly and unmistakably vests the arbitrator with exclusive jurisdiction to answer the threshold questions of arbitrability." (Doc. 41, p. 9, citing Am. Compl. ¶ 2.).6 Thus, as Bigge and Siemens, who both seek arbitration, agree that Bigge's claims are subject to arbitration and agree that "the question of whether Bigge's claims are arbitrable is a question for the arbitrator, and not this Court, to decide" (Doc. 38 ¶2), there is no present case or controversy as between Bigge and Siemens pending before this Court.7 The Court recommends that this claim be dismissed as moot.8

Abstention and Transfer of Venue

As for the claims against Entergy, as noted by Entergy in its motion (Doc. 42), this lawsuit is the only suit arising out of the Incident that has not been brought in Arkansas. To the extent the instant claims present Bigge's defenses to the Arkansas litigation, Entergy accuses Bigge of forum shopping and urges this Court to abstain from exercising jurisdiction over Entergy in this case. See, generally, Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976); Wilton v. Seven Falls Co., 515 U.S. 277, 115 S.Ct. 2137, 132 L.Ed.2d 214 (1995) (applying the abstention doctrine in a declaratory judgment context); and Ameritas Variable Life Insurance Co. v. Roach, 411 F.3d 1328 (11th Cir. 2005) (listing factors for consideration of application of the doctrine). Entergy also asserts that this Court is without personal jurisdiction over both non-resident Defendants (EOI and EAI). Further, Entergy urges dismissal of the action against it pursuant to Federal Rule 12(b)(3), because venue is improper. Upon review, the Court agrees with Entergy that venue is improper here and, absent objection from Bigge, recommends transfer of this action to the United States District Court in and for the Eastern District of Arkansas.

Title 28 U.S.C. § 1391(b) provides:

Bigge contends in its Amended Complaint that venue "is proper in this Court pursuant to 28 U.S.C. § 1391(b)(2) because `a substantial part of the events or omissions giving rise to the claim occurred' in Orange County, Florida, which is within this Court's jurisdiction. Alternatively, venue is proper under 28 U.S.C. § 1391(b)(1) or (3) because Siemens resides in Orange County, Florida, as does Entergy for purposes of venue." (Doc. 38, ¶11).

The undisputed facts cannot support a finding that a "substantial" portion of the events giving rise to a claim against Entergy occurred in Orange County, Florida. The project was in Arkansas, the parties were in Arkansas, and the Incident occurred in Arkansas. Indeed, Bigge conceded at hearing that, other than the forum selection clause in its subcontract with Siemens, there is no connection between its claim against Entergy and this Florida forum.

Nor can the Court agree that venue is alternatively proper under 28 U.S.C. § 1391(b)(1) or (3). Neither Entergy Defendant is a resident of the state of Florida, as Bigge concedes in its pleading. See Doc. 38, ¶¶ 7, 8 ("Defendant Entergy Arkansas, Inc. ("EAI") is an Arkansas Corporation with its principal place of business in Little Rock, Arkansas;" "Defendant Entergy Operations, Inc. ("EOI") is a Delaware Corporation with its principal place of business in Jackson, Mississippi."). Moreover, the availability and suitability of the Eastern District of Arkansas under § 1391(b)(2) preclude application of venue here under subsection three. Algodonera de las Cabezas, S.A. v. Am. Suisse Capital, Inc., 432 F.3d 1343, 1345 (11th Cir. 2005) (§ 1391(b)(3) is to be applied only when no other subsection of § 1391(b) applies). Bigge appropriately conceded as much at the hearing, in stating that it has no objection to transfer of this action to the Arkansas District Court.9 As venue of this claim is not proper in this Court, the issue of abstention should be determined by the appropriate Arkansas court. The issue of lack of personal jurisdiction is mooted, upon transfer.

Conclusion

The Amended Complaint presents no case or controversy cognizable in this Court against Siemens and this Court is not the appropriate venue for the claim asserted against Entergy. Consistent with the above, it is respectfully recommended that the Court dismiss the claim against Siemens, without prejudice, and transfer the action, to the extent claims against Entergy remain, to the Eastern District of Arkansas.

Failure to file written objections to the proposed findings and recommendations contained in this report within fourteen (14) days from the date of its filing shall bar an aggrieved party from attacking the factual findings on appeal.