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Case 3:12-cv-04292-L Document 21 Filed 09/20/13 Page 1 of 2 PageID 209









§ Civil Action No. 3:12-CV-04292-L


Before the court is Digital Display Networks, Inc.’s (“Defendant”) Motion to Dismiss or, in

the Alternative, Motion to Compel Arbitration and for a Stay of the Litigation (Doc. 13), filed

December 28, 2012. The motions were referred to Magistrate Judge Irma C. Ramirez, who entered

Findings, Conclusions, and Recommendation of the United States Magistrate Judge (“Report”), on

September 4, 2013, recommending that the court deny Defendant’s motions but dismiss the suit

without prejudice. No objections to the Report were filed.

On or about October 28, 2008, 7-Eleven, Inc. (“Plaintiff”) and Defendant entered into a

Digital Signage Agreement (“DSA”), which stated that Defendant would “provide a turn-key

network of high definition digital video monitors, digital media players and related components in

7-Eleven retail outlets located in the United States and Canada, as well as provide digital content for

display on such network primarily consisting of in-store and third-party advertisements.” Pl.’s

Original Compl. 3. The DSA contained an arbitration clause. Pl.’s Ex. A 25. On or about October

1, 2009, Plaintiff and Defendant also entered into a Network Services Agreement (“NSA”), which

was ancillary to the provision of services set forth in the DSA. Id.

Order - Page 1

Case 3:12-cv-04292-L Document 21 Filed 09/20/13 Page 2 of 2 PageID 210

On October 24, 2012, Plaintiff filed this suit against Defendant, alleging that it breached the

NSA. Pl.’s Original Compl. 5. On December 28, 2012, Defendant moved to dismiss or, in the

alternative, to compel arbitration and for a stay of the litigation. On May 2, 2013, Defendant filed

a notice explaining to the court that Plaintiff filed an arbitration claim. Defendant asserted that

Plaintiff’s claim of breach of the NSA in this lawsuit is “virtually identical to its claim in the

arbitration.” Id. at 2. Defendant stated that the “allegations that form the basis for 7-Eleven’s claim

in arbitration that [Defendant] breaches the Digital Signage Agreement are exactly the same as the

allegations that [sic] for the basis of its claim for breach of the Network Services Agreement.” Id.

Having reviewed the pleadings, file, and record in this case, and the findings and conclusions

of the magistrate judge, the court accepts the magistrate judge’s findings and conclusions.

Accordingly, the court denies with prejudice Defendant’s motion to dismiss, denies as moot

Defendant’s motion to compel arbitration, and denies the motion to stay the proceedings. The court,

however, does not agree with the magistrate judge’s recommendation that the action be dismissed

without prejudice. The court agrees that all claims are subject to arbitration. When a court

determines that all claims are subject to arbitration, dismissal of the action with prejudice is

appropriate and within the court’s discretion. See Alford v. Dean Witter Reynolds, Inc., 975 F.2d

1161, 1164 (5th Cir. 1992). Therefore, the court dismisses this action with prejudice.

It is so ordered this 20th day of September, 2013.

Sam A. Lindsay
United States District Judge

Order - Page 2