ATI Urges Court to Deny Remand Motion of Project Codu Plaintiffs

Defendant American Tower International’s removal of a state court breach of contract complaint to U.S. District Court for Southern Florida in Miami based on the New York Convention “should be sustained,” said ATI’s opposition Thursday (docket 1:23-cv-20009) to the plaintiffs’ motion to remand (see 2302030003).

Plaintiffs Terra Towers, TBS Management and DT Holdings allege ATI improperly withdrew from an $800 million Latin American telecom tower project contract called Project Codu (see 2301030035). They want the case remanded to the 11th Judicial Circuit Court in Miami-Dade County where it originated because the parties stipulated to facts during their underlying arbitration proceedings that negate “the existence of subject matter jurisdiction in this cause.”

The “underlying and ongoing arbitration” before the American Arbitration Association’s International Centre for Dispute Resolution (case 01-21-0016-8070) “involves many of the same facts and circumstances as the complaint in this case,” said ATI’s response in opposition. “The forthcoming arbitral award” will address, concern and relate to the proposed Project Codu transaction at the center of the plaintiffs’ complaint, it said.

Contrary to the plaintiffs’ representations, the parties haven't stipulated to facts in the arbitration that negate the existence of subject-matter jurisdiction in this cause, said ATI. In the arbitration, DTH argues it was defrauded by ATI in connection with the proposed Project Codu transaction. In the case before the Miami federal court, DTH argues ATI breached a Project Codu contract, it said. To “summarize,” DTH is arguing fraud in the arbitration forum, and breach of contract in the Miami forum, “both of which arise from the same exact facts and circumstances involving the same proposed transaction."

The plaintiffs don't contest that the New York Convention “applies” here or “is a proper basis for removal,” said ATI. They instead assert two grounds for remand, “neither of which has merit,” it said. They first assert ATI waived its right to remove this case “based on a vague and undefined ‘stipulation’ entered into” during the arbitration, it said. “This argument fails because there was no stipulation between the parties, let alone a clear and unequivocal waiver.”

Their secondary argument that removal is precluded based on the judicial estoppel doctrine “is also without merit and factually inapplicable,” said ATI’s opposition. “ATI offered to withdraw its objection to DTH’s contract-based counterclaim pertaining to Project Codu in the arbitration,” it said. “DTH, on its own and without any stipulation from ATI, unilaterally withdrew its contract claim from the arbitration.”

ATI denies the plaintiffs’ assertions that ATI will derive an unfair advantage if the case remains in Miami federal court, said its opposition. “To the contrary, DTH, who unilaterally withdrew its contract claim from the arbitration, will derive an unfair advantage if the case is remanded because it is clearly attempting to forum-shop its spinoff claim,” said ATI. “If it were up to ATI, DTH’s claim would have been included in the arbitration, as ATI suggested.”