Reply Re Motion To Dismiss

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

CASE NO. 09-21522-CIV-GOLD/McALILEY

MANUEL VIAMONTE, JR., M.D.,

Plaintiff,

vs.

BIOHEALTH TECHNOLOGIES, INC.,

Defendant. _____________________________________/

DEFENDANT’S REPLY TO PLAINTIFF’S RESPONSE (DE 25) TO DEFENDANT’S MOTION TO DISMISS OR IN THE ALTERNATIVE STAY PROCEEDINGS (DE 21)

BioHealth Technologies, Inc., by and through undersigned counsel, respectfully files its Reply to the Plaintiff’s Response to Defendant’s Motion to Dismiss or in the Alternative Stay Proceedings and states: BioHealth does not dispute Viamonte’s contentions that the Federal Arbitration Act creates a policy favoring arbitration (Resp. at p.4); that there must be an agreement to arbitrate

SINCLAIR, LOUIS, HEATH, NUSSBAUM & ZAVERTNIK, P.A.

for a party to be compelled to arbitrate (id.); or, that under Florida Law, contractual provisions should be given their plain and ordinary meaning. (Id. at pp.8-9.) BioHealth does dispute that these general legal principles mandate any result other than a stay of the proceedings or dismissal of the lawsuit. While the first paragraph of Section 16 of the contract at issue could have been better written, its operation remains clear: The first sentence gives the parties the option of arbitrating a dispute without involving the American Arbitration Association (“AAA”). The second sentence provides consequences of a failure to agree. That is, that “AAA jurisdiction automatically shall be invoked.”

The contrary interpretation suggested by Viamonte would vitiate the plain

language of the paragraph.1 WHEREFORE, BioHealth, by and through undersigned counsel respectfully requests this Honorable Court enter an Order dismissing this cause of action with prejudice, or in the alternative enter an Order pursuant to 9 U.S.C. § 3, staying these proceedings in favor of arbitration. Respectfully Submitted, s/ Marshall Dore Louis Marshall Dore Louis Florida Bar No. 512680 SINCLAIR, LOUIS, HEATH, NUSSBAUM & ZAVERTNIK, P.A. 1 Unlike many of the statements contained in, and attachments to, the Plaintiff’s Response, which have nothing to do with the issue before the Court, one does require brief comment. The suggestion by Viamonte that BioHealth has “refused to submit the action to arbitration…” in an attempt to delay this proceeding is preposterous. (Plaintiff’s Resp. at p.9.) BioHealth continues to assert its rights under the arbitration clause in the contract at issue. What is clear from a review of “Exhibit E” of the Plaintiff’s Response is that the proposal to mediate was an attempt to resolve this matter prior to the November 20, hearing which had been set by this Court.

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SINCLAIR, LOUIS, HEATH, NUSSBAUM & ZAVERTNIK, P.A.

Alfred I. duPont Building 169 East Flagler Street, Suite 1125 Miami, FL 33131 TEL: (305) 374-0544 FAX: (305) 381-6869 E-MAIL: [email protected]

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SINCLAIR, LOUIS, HEATH, NUSSBAUM & ZAVERTNIK, P.A.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on November 9, 2009, I filed the foregoing document with the Clerk of the Court. I also certify that the foregoing document is being served this day on all counsel of record identified on the attached Service List in the manner specified, either via transmission of Notices of Electronic Filing generated by CM/ECF or in some other authorized manner for those counsel or parties who are not authorized to receive electronically Notice of Electronic Filing.

s/ Marshall Dore Louis Marshall Dore Louis Florida Bar No. 512680 SINCLAIR, LOUIS, HEATH, NUSSBAUM & ZAVERTNIK, P.A. Alfred I. duPont Building 169 East Flagler Street, Suite 1125 Miami, FL 33131 TEL: (305) 374-0544 FAX: (305) 381-6869 E-MAIL: [email protected]

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SINCLAIR, LOUIS, HEATH, NUSSBAUM & ZAVERTNIK, P.A.

SERVICE LIST James A. Gale, Esq. Richard Guerra, Esq. Feldman Gale, P.A. One Biscayne Tower, 30th Floor 2 South Biscayne Boulevard Miami, FL 33131-1806 (Via CM/ECF Electronic Notification)

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SINCLAIR, LOUIS, HEATH, NUSSBAUM & ZAVERTNIK, P.A.