Summary
finding that Congress intended to preclude binding arbitration of express and written warranty claims under the MMWA; relying on the reasoning in Waverlee Homes, infra, which states in part that arbitration is precluded because the MMWA grants access to a judicial forum
Summary of this case from Walton v. Rose Mobile Homes LLCOpinion
Case No. 00-D-824-N
March 5, 2001.
MEMORANDUM OPINION AND ORDER
On January 26, 1998, Plaintiffs Gary and Penny Yeomans (the "Yeomans" or "Plaintiffs") purchased a manufactured home, constructed by Defendant Home of Legend, Inc. ("HOL"), from First American Homes, Inc. ("First American"). Plaintiffs allege that they have discovered multiple defects, for which HOL is responsible, and that HOL has failed to correct the problems. On June 26, 2000, Plaintiffs filed this action asserting claims for breach of express and implied warranties, including a violation of the Magnuson-Moss warranty-Trade Commission Act ("Magnuson-Moss Act"), 15 U.S.C. § 2301, et seq., as well as claims for breach of oral contract, and negligent and wanton manufacturing.
Plaintiffs have attached to their Complaint a copy of an inspection report, itemizing over 30 defects. The laundry list of defects includes loose carpeting and vinyl, mismatched paint, patched shingles, uneven shutters, and dented siding.
In lieu of an Answer, HOL filed a Motion To Stay And Compel Arbitration ("Mot.") on July 31, 2000. This Motion is the subject of this Memorandum Opinion And Order. After careful consideration of the arguments of counsel, relevant law, and the record as a whole, the court finds that HOL's Motion is due to be granted in part and denied in part.
I. JURISDICTION
The court exercises jurisdiction over this action pursuant to 28 U.S.C. § 1331, 28 U.S.C. § 1332, and the Magnuson-Moss Act, 15 U.S.C. § 2310(d).
II. FACTUAL BACKGROUND
In connection with the purchase of the Yeomans' manufactured home, Gary Yeomans signed three documents, a Manufactured Home Retail Installment Contract and Security Agreement ("the Agreement"), an Arbitration Agreement, and HOL's Limited One Year Service Warranty (the "Warranty"). (HOL's Exs. A, B, C.) Each of the three documents contained a provision regarding arbitration.
The Agreement, which was executed by Gary Yeomans and First American and assigned to Green Tree Financial Corporation ("Green Tree"), contains "ARBITRATION" and "WAIVER OF JURY TRIAL" provisions, which provide as follows:
14. Arbitration: All disputes, claims or controversies arising from or relating to this contract or the parties thereto shall be resolved by binding arbitration by one arbitrator selected by (assignee] with my consent. This agreement is made pursuant to a transaction in interstate commerce and shall be governed by the Federal Arbitration Act at 9 U.S.C. § 1. Judgment upon the award rendered may be entered in any court having jurisdiction. The parties agree and understand that they choose arbitration instead of litigation to resolve disputes. The parties understand that they have a right to litigate disputes in court, but that they prefer to resolve their disputes through arbitration, except as provided herein. The parties voluntarily and knowingly waive any right they have to a jury trial either pursuant to arbitration under this clause or pursuant to a court action by [assignee) (as provided herein). The parties agree and understand that all disputes arising under case law, statutory law, and all other laws including, but not limited to, all contract, tort and property disputes will be subject to binding arbitration in accord with this contract. The parties agree that the arbitrator shall have all powers provided by law, the contract and the agreement of the parties. These powers shall include all legal and equitable remedies including, but not limited to, money damages, declaratory relief and injunctive relief . . .
15. Waiver of Jury Trial: I hereby waive any right to a trial by jury that I have in any subsequent litigation between me and the seller, or me and any assignee of the seller, where such litigation arises out of, is related to, or is in connection with any provision of this contract whether the contract is asserted as the basis for a claim, counterclaim, or cross claim, or a defense to a claim, counterclaim, or cross claim.
(HOL's Ex. A.)
The Arbitration Agreement, signed by Gary Yeomans and First American, provides for arbitration of all disputes, claims or controversies in any way related to the sale or service of the manufactured home. In addition, the Arbitration Agreement contains the following provision, relating to HOL:
It is further agreed by the parties that all rights, privileges and responsibilities under this agreement shall expressly inure to the benefit of the manufacturer of the said mobile home insofar as any claims may exist or hereafter arise against the manufacturer, including but not limited to, enforcement of warranties, whether express or implied. It is further acknowledged, agreed and stipulated to by the parties hereto that each of them acknowledges the benefit of including any and all claims which might be asserted against the said manufacturer in relation hereto in any arbitration proceeding contemplated hereby and, as such, each part shall, for purposes of judicial economy, decreased expense and justice expressly acquiesce in and be bound to settle such claims against the manufacturer by arbitration.
(HOL's Ex. B.) The Warranty agreement issued by HOL and signed by Gary Yeomans also contains a "LIMITATION OF REMEDIES" provision, which provides that mediation shall be the preferred method of resolving any and all disputes, but, in the event the dispute is not resolved through mediation, all disputes will be referred to arbitration. (HOL's Ex. C.)
In its present Motion, HOL contends that Gary Yeomans, by virtue of his having signed these agreements to arbitrate, and Penny Yeomans, by virtue of her third-party beneficiary status under these contracts, are required to submit their claims to arbitration. Plaintiffs argue that HOL's Motion To Compel is due to be denied based on the authority of Wilson v. Waverlee Homes, Inc., 954 F. Supp. 1530 (M.D. Ala. 1997) (Thompson, J.).
The court agrees that Penny Yeomans claims relate to her third-party beneficiary status under the contracts signed by Gary Yeomans. Infinity of Mobile v. Office, 727 So.2d 42, 46 (Ala. 1999) (nonsignatory wife required to arbitrate where claims were based on status as third-party beneficiary to contract); see also Ex Parte Warren, 718 So.2d 45, 47 (Ala. 1998) (wife's concession that she is neither party nor third-party beneficiary precluded her recovery). Therefore, if the claims made by Gary Yeomans are subject to being submitted to arbitration, likewise, all claims being made by Penny Yeomans are also subject to being submitted to arbitration. Accordingly, the court will jointly address Gary and Penny Yeomans' claims.
III. DISCUSSION
Section 2 of the Federal Arbitration Act ("FAA") provides that a written agreement to arbitrate in a contract involving interstate commerce "shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C. § 2. The effect of § 2 is "to create a body of federal substantive law of arbitrability, applicable to any arbitration agreement within the coverage of the Act." Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983). Section 3 provides for the stay of proceedings in federal district courts when an issue in the proceedings is referable to arbitration. 9 U.S.C. § 3. Section 4 provides for orders compelling arbitration when one party has failed, neglected, or refused to comply with an arbitration agreement. 9 U.S.C. § 4.
Plaintiffs do not contest that the contracts in this action satisfy the interstate commerce requirement of the FAA. (See Resp. at 1-2.) Further, after an independent review of the record, the court finds that HOL has set out sufficient facts to demonstrate this requirement is satisfied. (Mot. at 6-7.) Accordingly, the court finds that, for the purposes of this Memorandum Opinion and Order, Plaintiffs' contracts satisfy this jurisdictional prerequisite of the FAA. See generally, Allied-Bruce Terminix Cos., Inc. v. Dobson, 513 U.S. 265 (1995); Staples v. Money Tree, Inc., 936 F. Supp. 856 (M.D. Ala. 1996).
Whether an arbitration provision is enforceable, is a question for the court. Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 218 (1985);Kelly v. Merrill Lynch, Pierce, Fenner Smith, Inc., 985 F.2d 1067 (11th Cir. 1993). Any doubts about the scope of arbitrable issues should be resolved in favor of arbitration, even if the result is piecemeal litigation. See Byrd, 470 U.S. at 218-21; Moses H. Cone, 460 U.S. at 24;Kelly, 985 F.2d at 1069.
In enacting the FAA, Congress manifested a "liberal federal policy favoring arbitration agreements." Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 25 (1991) (quoting Moses H. Cone, 460 U.S. at 24). The Act's purpose "was to reverse the longstanding judicial hostility to arbitration agreements that had existed at English common law and had been adopted by American courts, and to place arbitration agreements upon the same footing as other contracts." Id. at 24. Therefore, "questions of arbitrability must be addressed with a healthy regard for the federal policy favoring arbitration," Moses H. Cone, 460 U.S. at 24, and courts must "rigorously enforce agreements to arbitrate." Byrd, 470 U.S. at 221.
Even with this strong federal policy in mind, however, arbitration is a matter of contract, and a party cannot be compelled to arbitrate any claims which he or she has not agreed to submit to arbitration. AT T Technologies, Inc. v. Communications Workers of Am., 475 U.S. 643, 648 (1986). Accordingly, "as with any other contract, the parties' intentions control, but those intentions are generously construed as to issues of arbitrability." Mitsubishi Motors Corp. v. Soler ChrYsler-Plymouth, Inc., 473 U.S. 614, 627 (1985).
Guided by these principles, the court must initially determine whether HOL has standing to compel arbitration of Plaintiffs' claims. If the court concludes that Plaintiffs have agreed to submit their claims against HOL to arbitration, then the burden shifts to Plaintiffs to demonstrate why the arbitration agreement in this action should not bind the parties. See Shearson/American Express, Inc. v. McMahon, 482 U.S. 220, 225-26 (1987).
A. HOL's Standing To Compel Arbitration
Plaintiffs have not specifically challenged HOL's standing to compel arbitration. Plaintiffs simply contend in a 2-page brief, without any legal analysis, that HOL's Motion is "due to be denied based upon the authority of Wilson v. Waverlee Homes, Inc." (Resp. at 1.) However, with regard to the issue of standing, the court finds that Waverlee is inapposite. In the instant case, the court finds that HOL does have standing to compel arbitration.
In Waverlee, the "main question" was "whether a warrantor who is a nonsignatory to a commercial sales and financing contract containing an arbitration clause may use contract principles, such as equitable estoppel, to apply the FAA and so compel buyers complaining of breach of warranty to arbitrate their claims." 954 F. Supp at 1533. The sales and financing contracts between the plaintiffs and the seller were the "sole agreements governed by an arbitration clause," and thus the single basis for Waverlee's motion to compel arbitration. Id. at 1536. The agreements made "absolutely no reference to Waverlee," and "none of the duties the plaintiffs [claimed) that Waverlee breached arose under" the agreements.Id. at 1534, 1536. Instead, the plaintiffs brought their claims under a separate and distinct warranty agreement that contained no arbitration clause. Id. at 1536. Thus, the court concluded that Waverlee was not entitled to compel the plaintiffs to arbitrate their claims. Id. at 1537.
Unlike the manufacturer in Waverlee, HOL does not have to look to the installment contract executed between the Yeomans and First American for standing to compel arbitration. Both the Arbitration Agreement and the Warranty provide a basis for HOL to compel arbitration. The Warranty issued by HOL and signed by Gary Yeomans contains a clause which provides for arbitration of any controversy, claim, or dispute, which cannot be resolved through negotiation or mediation. (Def.'s Ex. C.) Thus, the Warranty explicitly provides for arbitration of the Yeomans' claims against HOL.
HOL also has standing to compel arbitration under the Arbitration Agreement, which was executed between Plaintiffs and First American. Although the general rule is that one "who is not a party to a contract has no standing to compel arbitration," Waverlee, 954 F. Supp at 1534, "both Federal courts and Alabama courts have enforced exceptions to this rule, so as to allow a nonsignatory, and even one who is not a party, to a particular contract, to enforce an arbitration provision within that same contract." Ex parte Stamey, 2000 WL 869577 *2 (Ala. 2000). One of those recognized exceptions — third-party beneficiary — is applicable here.
The third-party beneficiary exception may arise under two different sets of facts. The first situation arises when one who is a nonsignatory to the contract containing the arbitration provision, but who has received benefits under the contract, seeks to avoid arbitration. See id. at *6; see also supra note 3. The second situation, and the one present in this case with regard to the Arbitration Agreement and HOL, occurs when a "nonsignatory third-party beneficiary attempts to enforce the arbitration provision against a signatory to the contract." Id.
"A party claiming to be a third-party beneficiary, 'must establish that the contracting parties intended, upon execution of the contract, to bestow a direct, as opposed to an incidental, benefit upon the third party.'" Id. (quoting Weathers Auto Glass, Inc. v. Alfa Mut. Ins. Co., 619 So.2d 1328, 1329 (Ala. 1993)). At the time of their purchase, the Yeomans and First American signed an Arbitration Agreement wherein they agreed to arbitrate "any and all controversies or claims arising out of or in any way relating to the sale of the mobile home," as well as "any and all disputes, controversies, and cases arising out of the negotiations for and the sale and service of the mobile home, whether in the nature of contract, warranty, or tort . . ." (Def.'s Ex. B.) The Arbitration Agreement expressly states that "[i]t is further agreed by the parties that all rights, privileges and responsibilities under this agreement shall expressly inure to the benefit of the manufacturer, including but not limited to, enforcement of the warranties, whether express of implied." (Id.)
The intent of the parties to a contract is determined by looking to the language used. Ex Parte Stamey, 2000 WL 869577 at *6. Here, the language of the Arbitration Agreement clearly demonstrates that the Yeomans and First American contemplated HOL as a third party beneficiary. Thus, the court finds that HOL has met its burden of demonstrating that HOL was an intended third-party beneficiary of the Arbitration Agreement. With third-party beneficiary status, comes the power to enforce the contract. Therefore, the court finds that HOL has standing to compel arbitration of the Yeomans' claims.
B. The Magnuson-Moss Act
The Magnuson-Moss Act, 15 U.S.C. § 2301-2312, was enacted to "improve the adequacy of information available to consumers, (and] prevent deception." 15 U.S.C. § 2302 (a). The Act delineates clear and comprehensive requirements regarding disclosures, duties and remedies associated with warranties on consumer products. Waverlee, 954 F. Supp at 1537. Under the Act, a consumer may "bring suit for damages and other legal and equitable relief" if a warrantor fails to satisfy obligations owed under a written or implied warranty or service contract. 15 U.S.C. § 2310 (d)(1).
1. The Applicability of the Magnuson-Moss Act
The Magnuson-Moss Act applies to warranties on consumer products. A "consumer product" is defined by the Act as "any tangible personal property which is distributed in commerce and which is normally used for personal, family, or household purposes (including any such property intended to be attached to or installed in any real property without regard to whether it is so attached or installed)." 15 U.S.C. § 2301 (1). HOL argues that a manufactured home is not a "consumer product" as defined in the Magnuson-Moss Act. (Mot. at 19-30.) The court disagrees.
HOL relies upon Clark v. Jim Walters Homes, Inc., 719 F. Supp. 1037, 1043 (M.D. Ala. 1989), for the proposition that a manufactured home falls outside the purview of the Act. HOL's reliance, however, is misplaced.
Clark speaks only to the Act's applicability with regard to contracts for the on-site construction of prefabricated homes. Id. at 1044. In determining whether a prefabricated home was covered under the Act, the court first looked to the regulations promulgated by the Federal Trade Commission. Id. at 1043-44. The regulations provide in pertinent part that "in the case where a consumer contracts with a builder to construct a home, . . . the building materials to be used are not consumer products. Although the materials are separately identifiable at the time the contract is made, it is the intention of the parties to the contract for the construction of the realty which will integrate the component materials." 16 C.F.R. § 700.1 (f). Reviewing this language, the court found that the regulations "clearly posit that warranties issued in the type of construction contract entered into by the parties in this case do not fall within the coverage of the Magnuson-Moss Warranty Act." Id.
The Clark court also distinguished between movable goods and stationary goods, and concluded that, once built, a prefabricated home is stationary. Id. at 1043-44. Drawing analogies for the consumer-oriented Magnuson-Moss Act from the article 9 "consumer good" definition, the court concluded that a stationary dwelling did not qualify as a consumer product for purposes of the Magnuson-Moss Act. Id. at 1044 ("[N]o court has yet considered a stationary house to be a consumer product for purposes of article 9."). Based on this conclusion and its interpretation of the applicable regulations, the court held that Congress did not intend for the Magnuson-Moss Act to apply to contracts for the construction of prefabricated homes. Id. at 1044.
In contrast, the FTC has specifically listed manufactured homes among the items considered to be consumer products. See 40 Fed. Reg. 25721, 27722 (1975). Although HOL contends that this non-binding opinion is outdated, the agency's consistent interpretation of the Act for more than 25 years is persuasive evidence of sound, careful reflection on the point in question. Indeed, recent regulations governing the manufactured home industry explicitly provide that warranties issued must comply with the Magnuson-Moss Act. 61 Fed. Reg. 10864 (1996) ("Any such written warranties must comply with the Magnuson Moss requirements."). Moreover, the court finds that "unlike a prefabricated home that is stationary once attached to land, a mobile home is by its very nature a movable dwelling." In re VanBlarcum, 19 S.W.3d 484, 491-92 (Tex.Ct.App. 2000);see also 24 C.F.R. § 3280.903 (2001). Furthermore, if there is any doubt about whether the definition encompasses manufactured homes, the "FTC rules interpreting the Act state that any ambiguity about whether a product is covered under a definition should be 'resolved in favor of coverage.'" In re VanBlarcum, 19 S.W.3d at 491-92. Thus, given the broad scope of the Act, the sound applicable agency regulations, and the moveable nature of manufactured homes, the court finds that a manufactured home remains "tangible personal property" within the definition of the Act even though it may in fact be attached to real property. Id. (citing 16 C.F.R. § 700.1(a)-(f)).
3280.903 General requirements for designing the structure to withstand transportation shock and vibration.
(a) The cumulative effect of highway transportation shock and vibration upon a manufactured home structure may result in incremental degradation of its designed performance in terms of providing a safe, healthy and durable dwelling. Therefore, the manufactured home shall be designed, in terms of its structural, plumbing, mechanical and electrical systems, to fully withstand such transportation forces during its intended life.
2. The Effect of the Magnuson-Moss Act
The FAA's mandate that agreements to arbitrate statutory claims must be enforced may be overridden by a statute evincing a contrary congressional mandate. McMahon, 482 U.S. at 226. "If Congress did intend to limit or prohibit waiver of a judicial forum for a particular claim, such an intent 'will be deductible from [the statute's) text or legislative history,' . . . or from an inherent conflict between arbitration and the statute's underlying purpose." Id. at 227 (citing Mitsubishi Motors, 473 U.S. at 632-37; Byrd, 470 U.S. at 217).
In Waverlee Homes, Judge Thompson concluded that Congress intended to preclude binding arbitration of written and express warranty provisions under the Act, and that any attempt to include a provision calling for binding arbitration within a written warranty would be a "clear and direct violation of the Magnuson-Moss Act." 954 F. Supp. at 1537-39. The court based its conclusion upon the language of the Act, the Act's legislative history, the Act's governing regulations, and the history surrounding those regulations.
First, the court noted that the language of the Act explicitly provides for consumer access to a judicial forum.
The Act provides that 'a consumer who is damaged by the failure of a supplier, warrantor, or service contractor to comply with an obligation under this title or under a written warranty, implied warranty, or service contract, may bring suit for damages and other legal and equitable relief.'Id. at 1537 (quoting 15 U.S.C. § 2310(d)). A warrantor may require a consumer to initially engage in an informal dispute settlement procedure, but the dispute procedure must be in compliance with FTC requirements and be non-binding. 15 U.S.C. § 2310 (a). "In other words, the procedures are a prerequisite, not a bar, to relief in court."Waverlee, 954 F. Supp. 1537.
Second, the court examined the legislative history of the Act and found support for its interpretation in the comments of one of the bill's sponsors and the bill's corresponding House report. In explaining the bill's provisions and its purpose, Congressman Moss noted
[T]he bill is further refined so as to place a minimum extra burden on the courts bu requiring as a prerequisite to suit that the purchaser give the (warrantor] reasonable opportunity to settle the dispute out of court, including the use of a fair and formal dispute settlement mechanism.
199 Cong. Rec. 972 (Jan. 12, 1973). Congressman Moss' remarks lend credence to Judge Thompson's finding that informal dispute mechanisms are a "prerequisite, not a bar, to suit in court." Waverlee, 954 F. Supp. at 1538. Likewise, the House report on the bill expressly provides that "'[a] n adverse decision in any informal dispute settlement proceeding would not be a bar to a civil action on the warranty involved in the proceeding.'" Id. (quoting H.R. Rep. 93-1107, 93d Cong., 2d Sess. 41, reprinted in 1974 U.S.C.C.A.N. 7702, 7723).
Third, the regulations adopted pursuant to the Act "mirror the Act's command that consumers should have full and final access to the courts."Id. The FTC regulations set out the "minimum requirements" for the informal dispute procedures that may be incorporated into a written warranty. 16 C.F.R. § 703.3-703.8. In accordance with Judge Thompson's finding that any such procedure would serve only as a prerequisite to judicial relief, the regulations provide that "decisions of the mechanism shall not be legally binding on any person." 16 C.F.R. § 703.5 (j). Furthermore, one of the minimum requirements for an alternative dispute mechanism is that "[t]he mechanism shall inform the consumer . . . that . . . [i]f he or she is dissatisfied with its decision or warrantor's intended actions, or eventual performance, legal remedies, including use of small claims court, may be pursued." 16 C.F.R. § 703.5 (g).
Finally, the court explained that if there is "any remaining doubt" that Congress intended the Magnuson-Moss Act to prevent binding arbitration of express warranty claims, "that doubt is fully dispelled by the history of the regulations." Waverlee, 954 F. Supp. at 1538. Upon adoption of the regulations, the FTC responded to public comments regarding the provision 16 C.F.R. § 703.5 (j), which provides that the alternative dispute mechanism "shall not be legally binding," as follows:
Several industry representatives contended that warrantors should be allowed to require consumers to resort to mechanisms whose decisions would be legally binding (e.g., binding arbitration). The Rule does not allow for this for two reasons. First, Congressional intent was that Section 110 Mechanisms not be legally binding. Second, even if binding Mechanisms were contemplated by Section 110 of the Act, the Commission is not prepared, at this point in time, to develop guidelines for a system in which consumers would commit themselves, at the time of product purchase, to resolve any difficulties in a binding, but nonjudicial, proceeding. The Commission is not now convinced that any guidelines which it would set out could ensure sufficient protection for consumers against warrantors, even if the Congressional report had not made clear, as it did, that it wished for such mechanisms to be nonbinding.Id. at 1539 (quoting 40 Fed. Reg. 60168, 60210 (1975)). After the foregoing analysis of the Magnuson-Moss Act, its legislative history, its accompanying regulations, and the history surrounding those regulations, Judge Thompson ultimately concluded that Congress intended to preclude binding arbitration of written or express warranty claims arising under the Act. Other federal courts to address this issue have reached the same conclusion. See Pitchford v. Oakwood Mobile Homes, Inc., 124 F. Supp.2d 958, 964 (W.D. Va. 2000)("[T]he court holds that there can be no agreement at the time of sale to enter into binding arbitration on a written warranty."); Raesly v. Grand Housing, Inc., 105 F. Supp.2d 562, 573 (S.D. Miss. 2000) ("binding arbitration of written warranties, in transactions to which the Magnuson-Moss Warranty Act applies, is forbidden by the Act"); Rhode v. ET Investments, Inc., 6 F. Supp.2d 1322, 1331 (M.D. Ala. 1998) (DeMent, J.). Today, although the Supreme Court of Alabama has recently interpreted the Magnuson-Moss Act to permit binding arbitration of written warranty claims, Southern Energy Homes, Inc. v. Ard, 2000 WL 709500 (Ala. 2000), this court remains convinced that the reasoning of Waverlee is sound.
Two months ago, the Supreme Court of Virginia dismissed the reasoning in Ard summarily. See Philyaw v. Platinum Enterprises, Inc., 2001 WL 112107 *2 (Va. 2001) ("Some courts have reached a contrary result, reasoning that the Act contains no language clearly evincing a Congressional intent to prohibit arbitration of warranty claims. See e.g., Southern Energy Homes v. Ard, — So.2d — (Ala. 2000). However, this court is of the opinion that Pitchford expresses the better view.").
Thus, in light of Waverlee, the court finds that the arbitration provision contained in the Warranty violates the Magnuson-Moss Act. 954 F. Supp at 1539. Whether this violation renders the arbitration provision in the Warranty invalid and unenforceable in its entirety, or only invalid as to Plaintiffs' express warranty claims, need not be addressed by the court because there remains a valid arbitration agreement.Compare In Re VanBlarcum, 19 S.W.3d at 494-96. In accordance with the Magnuson-Moss Act and the Waverlee decision, the court finds that HOL, as a third-party beneficiary of the Arbitration Agreement, may compel arbitration of Plaintiffs' implied warranty and nonwarranty claims. 954 F. Supp at 1537-39.
VI. ORDER
Based on the foregoing, it is CONSIDERED and ORDERED that HOL's Motion To Stay And Compel Arbitration be and the same is hereby GRANTED in part and DENIED in part as follows:
(1) HOL's Motion To Compel Arbitration is DENIED with respect to Plaintiffs' claim against HOL for breach of express warranties under the Magnuson-Moss Act (Claims 1 2).
(2) HOL's Motion To Compel Arbitration is GRANTED with respect to Plaintiffs' remaining claims against HOL.
(3) The parties are DIRECTED to proceed to arbitration on said claims in accordance with the terms of the Arbitration Agreement.
(4) Pursuant to 9 U.S.C. § 3, HOL's Motion To Stay is GRANTED as to Plaintiffs' implied warranty and non-warranty claims, pending the outcome of arbitration.
(5) HOL's Motion To Stay is DENIED as to Plaintiffs' claim for breach of express warranties under the Magnuson-Moss Act.