In order to be arbitrable, a dispute must fall within the scope of the parties’ operative arbitration agreement. Here, a non-signatory to the relevant agreement was seeking to “invoke an arbitration provision that was not expressly incorporated into a contract to which the non-signatory is a party”. Finding that authority for this proposition was absent from the movant’s papers, a federal court denied a party’s motion to compel.

The co-surety non-signatories were defendants in the action by way of their nonpayment of a payment bond, the amount of which was undisputed. The service agreement which addressed the work to be performed, for which the co-sureties issued a payment bond, contained an arbitration provision to which they were not parties. Ultimately, the Court determined the “arbitration provision cannot be read to encompass a dispute of this nature” and that there was no evidence at the time the service agreement was executed that the parties “intended for the arbitration provision to cover an unnamed surety’s failure to perform under a yet-to-be-secured payment bond” for an undisputed sum. Thus, the co-sureties’ motion to dismiss or in the alternative stay litigation and compel arbitration was denied.

Aztech Engineering Group, Inc. et al. v. Liberty Mut. Ins. Co., et al., 1:16-cv-01657 (USDC S.D. Ind. Oct. 1, 2016)