This case was last updated from U.S. District Courts on 03/28/2022 at 08:38:17 (UTC).

Nalco Company LLC v. MLN Company

Case Summary

On January 27, 2022, Nalco Company, LLC (“Nalco” or “Plaintiff”), represented by Brian E. Mason of Dorsey & Whitney LLP, filed a contract lawsuit against MLN Company (“MLN” or “Defendant”), seeking declaratory and injunctive relief, for resolving the alleged actual and justiciable controversy between Nalco and MLN over Nalco’s performance of services under the unsigned Purchase Order. This case was filed in U.S. District Court in the Southern District of Texas with Judge George C Hanks, Jr presiding

 

In the complaint, the Plaintiff alleged that, “On December 8, 2021, MLN filed a demand for arbitration with the American Arbitration Association (“AAA”) purporting to arise from a Purchase Order providing for Nalco to furnish certain water treatment services for MLN on a construction project in Spring, Texas. The demand for arbitration states that the Purchase Order contains a valid and enforceable arbitration provision governing the parties’ dispute relating to the work referred to in the Purchase Order. MLN’s arbitration demand purports to rely upon a reference in the Purchase Order to certain remote terms and conditions appearing on MLN’s website, including a provision purporting to give MLN the unilateral option to arbitrate disputes.”

 

The Plaintiff further alleged that, “Contrary to MLN’s representation to the AAA, a valid and enforceable agreement to arbitrate does not exist. To begin with, the Purchase Order upon which MLN relies was not signed by either party so, regardless of whether the remote terms and conditions posted on MLN’s website were incorporated by reference in the Purchase Order, the fact that the Purchase Order was not signed renders those terms and conditions invalid, unenforceable, and void. Moreover, MLN did not furnish Nalco with a copy of the Purchase Order purporting to incorporate the remote terms and conditions until several months after Nalco had performed the work referenced in the Purchase Order and had submitted the second of its two invoices to MLN.”

 

The Plaintiff also alleged that, “Nalco files this action seeking (1) a declaration that the purportedly incorporated terms and conditions that MLN seeks to rely upon—including the arbitration provision contained therein—are not enforceable as a matter of law, and (2) a Temporary Restraining Order staying the prosecution of the arbitration, before Nalco’s deadline of February 1, 2022 to respond to MLN’s claim in the arbitration and to engage in the selection of an arbitrator, until the Court can rule upon whether Nalco agreed to arbitrate with MLN.”

 

The Plaintiff lists out three claims for relief. The first claim alleged is for a declaratory judgment. The second claim alleged is for an application for a temporary restraining order, and the third claim alleged is for the application of preliminary and permanent injunctions.

 

In their prayer for relief, the Plaintiff requested that the Court declare that the terms and conditions referenced in the unsigned Purchase Order that MLN seeks to rely upon in prosecuting its Arbitration Demand—including the unilateral option arbitration provision contained therein—are not valid and enforceable as a matter of law, and, therefore, there is not a valid and enforceable agreement to arbitrate the claim asserted in MLN’s Arbitration Demand against Nalco. The Plaintiff further requested the Court for a temporary restraining order followed by a preliminary and permanent injunction prohibiting MLN from continuing to prosecute its Arbitration Demand against Nalco. 

 

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Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    4:22-CV-00267

  • Filing Date:

    01/27/2022

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

Judge Details

Presiding Judge

George C Hanks, Jr

 

Party Details

Plaintiff

Nalco Company LLC

Defendant

MLN Company

Attorney/Law Firm Details

Plaintiff Attorney

Brian Edward Mason

Attorney at Dorsey & Whitney LLP

300 Crescent Ct, Ste 400

Dallas, TX 75201

Defendant Attorney

Jim D. Aycock

Attorney at Andrews Myers, P.C.

1885 Saint James Place, 15Th Floor

Houston, TX 77056

 

Court Documents

#13

(#13) STIPULATION AND ORDER granting #12 Stipulation. Nalco and MLN have agreed to further extend the time for Nalco to respond to the Motion to Dismiss until April 12, 2022. Nalco shall file its response to the Motion on or before April 12, 2022. (Signed by Judge George C Hanks, Jr) Parties notified. (bthomas, 4) (Entered: 03/22/2022)

#12

(#12) STIPULATION re: Extend Time for Nalco's Response to Motion Until April 12, 2022 by Nalco Company LLC, filed.(Mason, Brian) (Entered: 03/21/2022)

#11

(#11) STIPULATION AND ORDER granting #10 Stipulation. MLN to file an answer or otherwise respond to the Original Complaint by March 1, 2022. Nalco and MLN have agreed to extend the time for Nalco to respond to the Motion to Dismiss until March 22, 2022. Nalco shall file its response to the Motion on or before March 22, 2022. (Signed by Judge George C Hanks, Jr) Parties notified.(bthomas, 4) (Entered: 03/09/2022)

#10

(#10) STIPULATION re: Motion to Dismiss and [Proposed] Order by Nalco Company LLC, filed.(Mason, Brian) (Entered: 03/08/2022)

9 #9

Proposed Order

9 #8

Exhibit H

9 #7

Exhibit G

9 #6

Exhibit F

9 #5

Exhibit E

9 #4

Exhibit D

9 #3

Exhibit C

9 #2

Exhibit B

9 #1

Exhibit A

9 #9

Main Document

2 #10

Proposed Order

#2

(#2) MOTION for Temporary Restraining Order by Nalco Company LLC, filed. Motion Docket Date 2/17/2022. (Attachments: #1 Exhibit A, #2 Exhibit A-1, #3 Exhibit A-2, #4 Exhibit B, #5 Exhibit C, #6 Exhibit D-1, #7 Exhibit D-2, #8 Exhibit E, #9 Exhibit F, #10 Proposed Order)(Mason, Brian) (Entered: 01/27/2022)

1 #1

Civil Cover Sheet

#1

(#1) COMPLAINT against MLN Company (Filing fee $ 402 receipt number 0541-27668811) filed by Nalco Company LLC. (Attachments: #1 Civil Cover Sheet)(Mason, Brian) (Entered: 01/27/2022)

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Docket Entries

  • 03/21/2022
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  • Docket(#13) STIPULATION AND ORDER granting #12 Stipulation. Nalco and MLN have agreed to further extend the time for Nalco to respond to the Motion to Dismiss until April 12, 2022. Nalco shall file its response to the Motion on or before April 12, 2022. (Signed by Judge George C Hanks, Jr) Parties notified. (bthomas, 4) (Entered: 03/22/2022)

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  • 03/21/2022
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  • Docket(#12) STIPULATION re: Extend Time for Nalco's Response to Motion Until April 12, 2022 by Nalco Company LLC, filed.(Mason, Brian) (Entered: 03/21/2022)

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  • 03/09/2022
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  • Docket(#11) STIPULATION AND ORDER granting #10 Stipulation. MLN to file an answer or otherwise respond to the Original Complaint by March 1, 2022. Nalco and MLN have agreed to extend the time for Nalco to respond to the Motion to Dismiss until March 22, 2022. Nalco shall file its response to the Motion on or before March 22, 2022. (Signed by Judge George C Hanks, Jr) Parties notified.(bthomas, 4) (Entered: 03/09/2022)

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  • 03/08/2022
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  • Docket(#10) STIPULATION re: Motion to Dismiss and [Proposed] Order by Nalco Company LLC, filed.(Mason, Brian) (Entered: 03/08/2022)

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  • 02/15/2022
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  • Docket(#9) MOTION to Dismiss #1 Complaint Pursuant to FRCP 12(B)(1) for Lack of Subject Matter Jurisdiction by MLN Company, filed. Motion Docket Date 3/8/2022. (Attachments: #1 Exhibit A, #2 Exhibit B, #3 Exhibit C, #4 Exhibit D, #5 Exhibit E, #6 Exhibit F, #7 Exhibit G, #8 Exhibit H, #9 Proposed Order)(Aycock, Jim) (Entered: 02/15/2022)

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  • 02/02/2022
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  • Docket(#8) ORDER granting #7 Stipulation Staying Arbitration. IT IS HEREBY STIPULATED AND AGREED, by and between the parties undersigned counsel, that Nalcos application for the issuance of a temporary restraining order #2 shall be and hereby is resolved as follows: 1. The Arbitration shall be and hereby is stayed pending further Order of this Court; 2. MLN and Nalco reserve their respective rights and positions with respect to whether the Terms and Conditions (including, but not limited to, the arbitration provision contained within such Terms and Conditions) are valid and enforceable as against Nalco; 3. MLN shall file an answer or otherwise respond to the Original Complaint by March 1, 2022. 4. MLN may move to vacate this Stipulation staying the Arbitration upon ten (10) business days written notice to Nalcos undersigned counsel. 5. MLN also reserves the right to challenge the Courts jurisdiction to enter this Order or to hear this case, including on the basis that diversity jurisdiction does not exist. (Signed by Judge George C Hanks, Jr) Parties notified.(bthomas, 4) (Entered: 02/02/2022)

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  • 02/01/2022
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  • Docket(#7) STIPULATION re: Arbitration Stay by Nalco Company LLC, filed.(Mason, Brian) (Entered: 02/01/2022)

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  • 01/28/2022
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  • Docket(#6) Summons Issued as to MLN Company. Issued summons delivered to plaintiff by NEF, filed.(ShannonHolden, 4) (Entered: 01/28/2022)

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  • 01/28/2022
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  • Docket(#5) ORDER for Initial Pretrial and Scheduling Conference and Order to Disclose Interested Persons. Initial Conference set for 6/29/2022 at 09:00 AM in Courtroom 600 in Houston before Magistrate Judge Andrew M Edison. (Signed by Judge George C Hanks, Jr) Parties notified.(RachelSalazaradi, 4) (Entered: 01/28/2022)

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  • 01/27/2022
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  • Docket(#4) Request for Issuance of Summons as to MLN Company, filed.(Mason, Brian) (Entered: 01/27/2022)

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  • 01/27/2022
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  • Docket(#3) Amended Civil Cover Sheet by Nalco Company LLC, filed.(Mason, Brian) (Entered: 01/27/2022)

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  • 01/27/2022
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  • Docket(#2) MOTION for Temporary Restraining Order by Nalco Company LLC, filed. Motion Docket Date 2/17/2022. (Attachments: #1 Exhibit A, #2 Exhibit A-1, #3 Exhibit A-2, #4 Exhibit B, #5 Exhibit C, #6 Exhibit D-1, #7 Exhibit D-2, #8 Exhibit E, #9 Exhibit F, #10 Proposed Order)(Mason, Brian) (Entered: 01/27/2022)

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  • 01/27/2022
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  • Docket(#1) COMPLAINT against MLN Company (Filing fee $ 402 receipt number 0541-27668811) filed by Nalco Company LLC. (Attachments: #1 Civil Cover Sheet)(Mason, Brian) (Entered: 01/27/2022)

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