UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 09-21522-CIV-GOLD/McALILEY

MANUEL VIAMONTE, JR., M.D.,

Plaintiff,

vs.

BIOHEALTH TECHNOLOGIES, INC.,

Defendant.
_____________________________________/

DEFENDANT’S REPLY
TO PLAINTIFF’S RESPONSE (DE 25) TO DEFENDANT’S MOTION TO DISMISS
OR IN THE ALTERNATIVE STAY PROCEEDINGS (DE 21)

BioHealth Technologies, Inc., by and through undersigned counsel, respectfully files its

Reply to the Plaintiff’s Response to Defendant’s Motion to Dismiss or in the Alternative Stay

Proceedings and states:

BioHealth does not dispute Viamonte’s contentions that the Federal Arbitration Act

creates a policy favoring arbitration (Resp. at p.4); that there must be an agreement to arbitrate

SINCLAIR, LOUIS, HEATH, NUSSBAUM & ZAVERTNIK, P.A.

for a party to be compelled to arbitrate (id.); or, that under Florida Law, contractual provisions

should be given their plain and ordinary meaning. (Id. at pp.8-9.) BioHealth does dispute that

these general legal principles mandate any result other than a stay of the proceedings or dismissal

of the lawsuit.

While the first paragraph of Section 16 of the contract at issue could have been better

written, its operation remains clear: The first sentence gives the parties the option of arbitrating a

dispute without involving the American Arbitration Association (“AAA”). The second sentence

provides consequences of a failure to agree. That is, that “AAA jurisdiction automatically shall

be invoked.” The contrary interpretation suggested by Viamonte would vitiate the plain

language of the paragraph.1

WHEREFORE, BioHealth, by and through undersigned counsel respectfully requests this

Honorable Court enter an Order dismissing this cause of action with prejudice, or in the

alternative enter an Order pursuant to 9 U.S.C. § 3, staying these proceedings in favor of

arbitration.

Respectfully Submitted,

s/ Marshall Dore Louis

Marshall Dore Louis

Florida Bar No. 512680
SINCLAIR, LOUIS, HEATH,
NUSSBAUM & ZAVERTNIK, P.A.
1
Unlike many of the statements contained in, and attachments to, the Plaintiff’s Response, which have
nothing to do with the issue before the Court, one does require brief comment. The suggestion by Viamonte that
BioHealth has “refused to submit the action to arbitration…” in an attempt to delay this proceeding is preposterous.
(Plaintiff’s Resp. at p.9.) BioHealth continues to assert its rights under the arbitration clause in the contract at issue.
What is clear from a review of “Exhibit E” of the Plaintiff’s Response is that the proposal to mediate was an attempt
to resolve this matter prior to the November 20, hearing which had been set by this Court.

2 SINCLAIR, LOUIS, HEATH, NUSSBAUM & ZAVERTNIK, P.A.

 Alfred I. duPont Building
169 East Flagler Street, Suite 1125
Miami, FL 33131
TEL: (305) 374-0544
FAX: (305) 381-6869
E-MAIL: mdl@sinclairlouis.com

3 SINCLAIR, LOUIS, HEATH, NUSSBAUM & ZAVERTNIK, P.A.

 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on November 9, 2009, I filed the foregoing document with

the Clerk of the Court. I also certify that the foregoing document is being served this day on all

counsel of record identified on the attached Service List in the manner specified, either via

transmission of Notices of Electronic Filing generated by CM/ECF or in some other authorized

manner for those counsel or parties who are not authorized to receive electronically Notice of

Electronic Filing.

s/ Marshall Dore Louis

Marshall Dore Louis

Florida Bar No. 512680
SINCLAIR, LOUIS, HEATH,
NUSSBAUM & ZAVERTNIK, P.A.
Alfred I. duPont Building
169 East Flagler Street, Suite 1125
Miami, FL 33131
TEL: (305) 374-0544
FAX: (305) 381-6869
E-MAIL: mdl@sinclairlouis.com

4 SINCLAIR, LOUIS, HEATH, NUSSBAUM & ZAVERTNIK, P.A.

 SERVICE LIST

James A. Gale, Esq.

Richard Guerra, Esq.
Feldman Gale, P.A.
One Biscayne Tower, 30th Floor
2 South Biscayne Boulevard
Miami, FL 33131-1806
(Via CM/ECF Electronic Notification)

5 SINCLAIR, LOUIS, HEATH, NUSSBAUM & ZAVERTNIK, P.A.