UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _________________________________________ ) EIG ENERGY FUND XIV, L.P., et al., ) ) Plaintiffs, ) ) v. ) Case No. 16-cv-00333 (APM) ) PETRÓLEO BRASILEIRO S.A., et al., ) ) Defendants. ) _________________________________________ ) MEMORANDUM OPINION AND ORDER Before the court is Defendant Petrόleo Brasileiro S.A.’s Motion to Stay Pending Arbitration. See Def.’s Mot. to Stay, ECF No. 100 [hereinafter Def.’s Mot. to Stay]. For the reasons that follow, Defendant’s Motion is denied as untimely and on the merits. I. A litigant cannot sit on its right to arbitrate. In this Circuit, “[a] defendant seeking a stay pending arbitration under Section 3 [of the Federal Arbitration Act] who has not invoked the right to arbitrate on the record at the first available opportunity, typically in filing his first responsive pleading or motion to dismiss, has presumptively forfeited that right.” Zuckerman Spaeder LLP v. Auffenberg, 646 F.3d 919, 922 (D.C. Cir. 2011). To overcome this presumption, a defendant must show “his delay did not prejudice his opponent or the court.” Id. at 923. A. Defendant here did not invoke its right to arbitrate at the “first available opportunity.” That would have been when Defendant filed its motion to dismiss nearly three years ago, on August 12, 2016. See Def.’s Mot. to Dismiss, ECF No. 58. Defendant moved to dismiss on multiple grounds, but mandatory arbitration was not one of them. See generally Def.’s Mem. of P. & A. in Supp. of Def.’s Mot. to Dismiss, ECF No. 58-1 [hereinafter Def.’s Mot. to Dismiss Mem.]. Defendant only asserted its right to arbitrate for the first time more than 30 months later, on December 4, 2018, by identifying “mandatory arbitration pursuant to an agreement” as one of its affirmative defenses in its Answer. See Def.’s Answer and Affirmative Defenses, ECF No. 91, at 18. Defendant did not, however, actually move to compel arbitration for another four months, filing its Motion to Stay on April 5, 2019. See Def.’s Mot. to Stay. Zuckerman Spaeder’s presumption of forfeiture therefore applies here. See Kelleher v. Dream Catcher, LLC, 729 Fed. Appx. 4, 6 (D.C. Cir. 2018) (finding that the presumption of forfeiture applied when the defendant moved to stay proceedings and compel arbitration six months after it removed the case to federal court and after it filed an answer that did not invoke its right to arbitrate). Defendant’s attempt to avoid the presumption is unpersuasive. Defendant argues that it invoked its right to arbitrate at the “first available opportunity” when it filed its Answer and then moved to vindicate that right “just weeks” after the Supreme Court denied its petition for writ of certiorari. See Def.’s Mem. of P&A in Supp. of its Mot. to Stay, ECF No. 100-1 [hereinafter Def.’s Mem.], at 1, 16–18. The Supreme Court’s decision ended more than two years of litigation over whether Defendant was completely immune from suit under the Foreign Sovereign Immunities Act. This court and the D.C. Circuit held that it ...
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