The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge
Before this Court are motions to dismiss filed by third-party defendants USA Parking, LLC, ("USA Parking") and Solomon Arega ("Arega") in response to the third-party complaint filed by Whole Foods Market Group, Inc. ("WFM"). For the reasons explained herein, the Court will grant Arega's motion, grant USA Parking's motion in part, and hold the third-party claims in abeyance pending arbitration.
Plaintiff Marion Kindig initially filed this suit in the Superior Court of the District of Columbia, alleging that she slipped and fell as a result of WFM's negligence and seeking compensation for the injuries that she sustained in the parking lot of the WMF Georgetown store.
WFM removed the instant action to federal district court pursuant to 28 U.S.C. §§ 1332 (a), 1441(a).*fn1 Some months later, WFM filed a third-party complaint against U.S.A. Parking and Arega seeking indemnification and/or contribution. Third-party defendants filed motions to dismiss for lack of jurisdiction*fn2 based on the existence of an arbitration agreement between USA Parking and WFM. Arega additionally disputes liability in his individual capacity.
When reviewing a motion to dismiss pursuant to Rule 12(b)(1), a court must accept as true all factual allegations contained in the complaint and afford the plaintiff the benefit of all favorable inferences that can be drawn from the alleged facts. Leatherman v. Tarrant Cnty Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993). However, "plaintiff's factual allegations in the complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion' than in resolving a 12(b)(6) motion for failure to state a claim." Grand Lodge Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13-14 (D.D.C. 2001) (internal quotation omitted); see also Citizens for Responsibility & Ethics in Washington v. Cheney, 593 F. Supp. 2d 194, 209-10 (D.D.C. 2009). A court may consider materials outside the pleadings to determine whether it has jurisdiction. Jerome Stevens Pharms., Inc. v. Food & Drug Admin., 402 F.3d 1249, 1253 (D. C. Cir. 2005); Amons v. District of Columbia, 231 F. Supp. 2d 109, 113 & n.5 (D.D.C. 2002) (noting that "the court may take judicial notice of matters of a general public nature, such as court records, without converting the motion to dismiss into one for summary judgment") (citation omitted).
"When considering a motion to stay proceedings and/or compel arbitration, the appropriate standard of review for the district court is the same standard used in resolving summary judgment motions" pursuant to Federal Rule of Civil Procedure 56(a). Sheet Metal Workers' Int'l Ass'n v. United Transp. Union, 767 F. Supp. 2d 161, 167-68 (D.D.C. 2011) (internal quotation marks omitted) (citing Brown v. Dorsey & Whitney, LLP, 267 F. Supp. 2d 61, 67 (D.D.C. 2003)). It is therefore appropriate to grant a motion to stay proceedings or compel arbitration when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). In this situation, the movant (the party seeking summary judgment or arbitration) bears the initial responsibility of demonstrating the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Sheet Metal Workers' Int'l Ass'n, 767 F. Supp. 2d at 161.
When a cause of action in federal court is based on state law, as where a court sits in diversity, the court must apply the law of the forum state. See Van Gemert v. Boeing Co., 553
F.2d 812, 813 (2d Cir. 1977) ("It is the source of the right, not the basis of federal jurisdiction, which determines the controlling law."); see also Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). As this case is before the Court pursuant to diversity jurisdiction, the law of the District of Columbia shall govern all substantive issues. See A.I. Trade Fin., Inc. v. Petra Int'l Banking Corp., 62 F.3d 1454, 1458 (D.C. Cir. 1995); see also Schleier v. Kaiser Found. Health Plan of the Mid-Atl. States, Inc., 876 F.2d 174, 180 (D.C. Cir. 1989) ("Although the Rules of Decision Act, and hence Erie Railroad v. Tompkins, 304 U.S. 64 (1938), do not strictly apply with respect to D.C. law, we apply D.C.'s substantive law analogously for reasons of uniformity and respect for the D.C. Court of Appeals."). However, non-forum law will be applied where otherwise specified by contractual agreement. Norris v. Norris, 419 A.2d 982, 984 (D.C. 1980) (applying Florida law per the parties' contractual specification).
III. LIABILITY OF SOLOMON AREGA
In its Amended Third-Party Complaint, WFM seeks to hold Arega liable as owner and operator of USA Parking. (Am. Third-Party Compl. at ¶¶ 21, 26.) Arega moved to dismiss suit against him because the agreement with WFM was made with USA Parking, which, he asserts, ...