Case 3:17-cv-01953-PAD Document 80 Filed 11/20/18 Page 1 of 9

IN THE UNITED STATES DISTRIC COURT

FOR THE DISTRICT OF PUERTO RICO

AUSTIN TROUT CIVIL NO.: 17-1953 (PAD)

Plaintiff
VIOLATION OF THE MUHAMMAD ALI
Vs. ACT; BREACH OF CONTRACT;
FRAUD; DAMAGES
ORGANIZACIÓN MUNDIAL DE BOXEO,
INC. PLAINTIFF DEMANDS TRIAL BY
JURY
Defendant

REPLY TO OPPOSITION TO MOTION FOR RECONSIDERATION

MAY IT PLEASE THE COURT:

COMES NOW, the Plaintiff, Mr. Austin Trout (hereinafter

referred to as “Plaintiff”), through the undersigned attorneys,

and very respectfully States and Prays:

I. INTRODUCTION

Plaintiff Austin Trout hereby submits his reply to

Defendant WBO’s opposition contained in Docket No. 77. The

appearing party hereby fully adopts and incorporates the facts,

arguments and case law cited in his motion for reconsideration

contained in Docket No. 73 and will address solely certain

points brought by Defendant WBO in Docket No. 77.

The WBO made factual and legal averments when it requested

the case to be transferred to this District that amount to a

waiver of any arbitration proceedings. The appearing party

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respectfully submits that, because of these factual and legal

averments made by the WBO itself, if the ruling on the

controversy stands, it will amount to a manifest error of fact

and law, warranting the reconsideration.

II. DISCUSSION

A. Defendant WBO waived any right to arbitration.

In it opposition, the WBO mischaracterizes the transfer of

the present case to this district as a mere request for a proper

venue in which to ask for arbitration. See, Docket 77, page 3 at

Paragraph 1 “…the WBO filed its motion to compel arbitration as

soon as was practicable once this matter was brought to the

proper forum”. This statement is simply not true. If, arguendo,

one would agree that the arbitration clause was not waived and

was mandatory, which is denied, then the arbitration proceeding

was the proper forum. If the arbitration clause was valid and

not waived, this District was not more proper than the State

court of New Mexico or the Federal District of New Mexico.

Therefore, the WBO could have request to compel arbitration

since November 2015 at the New Mexico State Court, and at the

Federal District of New Mexico, either in its Motion to Dismiss

(Docket No. 4) or its Amended Motion for Transfer of Venue

(Docket No. 11). The WBO elected not to request the case to be

sent to arbitration in any of those instances.

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In its opposition, defendant WBO goes further to aver that

“Plaintiff argues that the WBO spent 21 months invoking the

jurisdiction of the federal court (Mot. At 8), but wholly

overlooks that the purpose of this was to move the Complaint to

a proper forum so that the correct court could evaluate whether

the matter was subject to arbitration”. See, Docket No. 77, page

3 at Paragraph 2. This last representation made to the Honorable

Court grossly contradicts all the arguments made in the state

and federal courts of New Mexico as to why the case shall be

transferred to Puerto Rico. These arguments were adopted by the

Honorable Court in the Federal District Court of New Mexico in

ruling in favor of transferring the case to this federal

district.

Not once did the WBO express to the Court that the reason

for the transfer of venue was so that the Honorable Court in

this district could rule upon arbitration. To the contrary, the

WBO unequivocally and solely expressed that the parties were

required to litigate the case in the courts of Puerto Rico.

Plaintiff Trout hereby fully adopts and incorporates the direct

references made to the WBO’s averments in the courts of New

Mexico contained in Docket No. 73. However, and for the benefit

of the Honorable Court, the appearing party will further quote

from the pleadings filed by the WBO to request this case to be

transferred to this district.

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In its Defendant Organizacion Mundial de Boxeo, Inc.’s

Fed.R.Civ. P12(b)(3) Motion to Dismiss for Improper Venure

(Docket No. 4), the WBO states:

The very same WBO Regulations upon which

Plaintiff bases his Complaint contain a mandatory
dispute resolution procedure with an unambiguous venue
selection clause (the “Contract Venue Provision”),
which provides in pertinent part:

These Regulations are to be interpreted in

conformity with the Laws of the Commonwealth of
Puerto Rico. All WBO Participants agree and
consent that the exclusive venue for any or all
action in which the WBO is made a party, whether
it is to enforce, interpret or declare the
application of these Regulations or to appeal
from any determination of the WBO…may be
maintained only in the Superior Court of the
Commonwealth of Puerto Rico, or, if applicable,
in the U.S. District Court for the Commonwealth
of Puerto Rico.
Defendant WBO’s Exhibit A, Section 35(d). This
lawsuit arises out of and relates to the WBO
Regulations, and is inextricably linked to those
Regulations. (See Compl. ¶¶ 33, 36, 37, 41, 42 where
Plaintiff alleges the WBO violated the Regulations).
Because Plaintiff made the WBO a party to this
lawsuit, and because the basis of his lawsuit turns
upon the WBO Regulations, the Court should enforce the
Contract Venue Provision and dismiss the Complaint for
improper venue.

See, Docket No. 4, page 2, paragraph 3 (our emphasis)

It should be noted, that the WBO specifically alleges that

the Contract Venue Provision (Section 35d) governs the

controversy because Plaintiff made the WBO a party to this

lawsuit, precisely the point Plaintiff has invited the Honorable

Court to reconsider.

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The Contract Venue Provision here is mandatory.

In clear language, the Contract Venue Provision
provides that “exclusive venue… may be maintained only
in” the Commonwealth of Puerto Rico for actions
concerning enforcement or interpretation of the WBO
Regulations. See Defendant WBO’s Exhibit A, Section
35(d) (emphasis added). This provision does not merely
permit the parties to litigate in the Commonwealth of
Puerto Rico, it requires it. K & V Scientific, 314
F.3d at 500 (explaining that the use of the exclusive
term ‘only’ is evidence that the parties intended to
limit jurisdiction to a particular forum.) This
lawsuit clearly arises out of the Regulations because
Plaintiff contends that the WBO violated certain
provisions of the Regulations. See Compl. ¶¶ 33, 36,
37, 41, 42. Therefore the Contract Venue Provision
governs this dispute. The WBO Regulations’ provision
is analogous to the clause at issue in K & V
Scientific where the agreement specified venue and was
written in obligatory language, rather than merely
specifying jurisdiction. As was the case in K & V
Scientific, the selection clause here is unambiguous
and enforceable.
See, Docket No. 4, page 5, paragraph 2 (our emphasis)

In Defendant Organizacion Mundial de Boxeo, Inc.’s Amended

Motion For Transfer of Venue to the District Of Puerto Rico

(Docket No. 11) the WBO re-states its argument as to the

dispositive nature of Section 35(d). However, in its argument,

the WBO transcends the binding nature of Section 35(d) and

further argues that the interests of justice warrant that the

case be litigated in the District of Puerto Rico:

The interests of justice require transfer of this

action to the District of Puerto Rico. If this action
is transferred to Puerto Rico, it will ensure speedy
judicial process and a judge who is familiar with the
law governing the dispute. Similarly, the operative
events underlying Mr. Trout’s dispute with the WBO
took place within the District of Puerto Rico.

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See, Docket No. 11, page 8, paragraph 2 (our emphasis)

It is worth noting how the WBO argues how the

interests of justice will benefit and how a speedy judicial

process will be ensured should the case be transferred to the

District of Puerto Rico. Now, after arguing in favor of a speedy

judicial process, the WBO intends to further delay a 3 year case

by transferring it to arbitration and have Plaintiff start his

claim from square one.

The WBO Regulations contain a choice-of-law

provision that specifies they are “to be interpreted
in conformity with the Laws of the Commonwealth of
Puerto Rico.” WBO’s Exhibit A, § 35(d). Puerto Rico
law thus governs this dispute to the extent Mr. Trout
claims the WBO deviated from the Regulations in
depriving him of a lucrative fighting opportunity.
Id.; See also Compl. ¶¶ 33, 37, 41 (where Plaintiff
alleges the WBO breached the Regulations). A federal
judge sitting within the District of Puerto Rico would
surely be most familiar with the laws of Puerto Rico.
There is strong public interest in litigating in a
forum that is at home with the law. Navajo Health
Found., 86 F.Supp.3d at 1237. Thus, this factor weighs
strongly in favor of transfer.
See, Docket No. 11, page 9, paragraph 2 (our emphasis)

As the Honorable Court can readily see, the argument

brought by the WBO to the effect that the purpose for asking the

transfer to this district was solely so this Honorable Court

could rule on arbitration holds no water and finds no support in

the Docket. The WBO not only argued that Section 35(d) is

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controlling, but that justice was best served if the parties

litigate the claim in the Federal District of Puerto Rico.

In its Memorandum Opinion and Order (Docket No. 15) the

Honorable Court in the District of New Mexico noted the WBO’s

expressed intention and ruled upon it:

Defendant responded by filing its Amended Motion

for Transfer of Venue to the District of Puerto Rico
under § 1404(a) (ECF No. 11). Defendant contends the
forum selection clause is valid and enforceable and
requires Plaintiff to litigate his claims, which arise
out of and are inextricably linked to the Regulations,
in the District of Puerto Rico. Def.’s Am. Mot. 2, ECF
No. 11. Defendant asserts that, because Plaintiff has
invoked the Regulations to support his position, he
cannot now ignore the forum selection clause. Id. at
5. The WBO additionally argues that Mr. Trout cannot
meet his burden of establishing extraordinary
circumstances to overcome the enforceability of the
mandatory forum selection clause, because the
interests-of-justice factor favors litigation in the
District of Puerto Rico where the court will be
familiar with the applicable law, where the events
underlying the dispute arose, where the majority of
evidence and witnesses are located, and which has a
less congested docket than this Court. See id. at 6-
11. Finally, Defendant contends that, even if the
forum selection clause is not valid, the Court should
transfer the action for convenience, efficiency, and
the interests of justice. See id. at 11-14.

See, Docket No. 15, pages 3-4.

Evidently, the Honorable Court’s ruling was based on the

nature of Section 35(d) and the best interests of justice, as

unequivocally averred by the WBO. Simply put, the WBO had the

chance and the choice to demand the case to be sent to

arbitration since November 2015. The WBO did not do so. Instead,

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the WBO opted to aggressively argue that Section 35(d) was

controlling and that the best interests of justice warranted the

case to be litigated in the Federal District of Puerto Rico. The

belated request for arbitration is nothing but a dilatory tactic

on a 3 year old case.

B. Plaintiff suffered prejudice.

In its opposition, the WBO argues that the set standard for

showing prejudice in the context of opposing arbitration somehow

do not apply to this case:

Although Plaintiff cites authority stating that

the required showing of prejudice is “tame at best”
(Mot. at 13), the authority is inapposite. In JocaRoca
Real Estate, LLC v. Brennan, 772 F.3d 945, 949 (1st
Cir. 2014), the plaintiff sought arbitration in a
lawsuit that the plaintiff filed.

The appearing party stands by its averment that, regardless

of who seeks arbitration, the party opposing it is required a

showing that is "tame at best." Joca-Roca Real Estate, LLC v.

Brennan, 772 F.3d 945 (1st Cir. 2014). In the controversy at

hand, Plaintiff is required to demonstrate a "modicum of

prejudice". Tyco Int'l (U.S.) Ltd. v. Swartz (In re Tyco Int'l

Ltd. Sec. Litig.). Furthermore, the appearing party hereby fully

incorporates the arguments raised on this regard in Docket No.

73.

RESPECTFULLY SUBMITTED.

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I HEREBY CERTIFY that on this same date I electronically

filed the foregoing with the Clerk of the Court using the CM/ECF

system which will send notification of such filing to the

attorneys of record.

In San Juan, Puerto Rico, this 20th day of November, 2018.

/S MIGUEL J. ORTEGA NÚNEZ
Miguel J. Ortega Núnez
USDC 220609
CANCIO, NADAL, RIVERA & DÍAZ, PSC
PO Box 364966
San Juan, PR 00936-4966
403 Ave. Muñoz Rivera
Hato Rey, PR 00918-3345
Tel. (787) 767-9625
Fax (787) 622-3461
Email: mortega@cnrd.com

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