OPINION & ORDER This litigation stems from a related arbitration proceeding (the “Arbitration”) between Plaintiffs Enel Green Power North America, Inc. and Enel Kansas, LLC and Defendant Geronimo Energy, LLC currently pending with the American Arbitration Association. Plaintiffs, claimants in the Arbitration, seek in this Court a declaratory judgment, damages for breach of contract, and specific performance of indemnity obligations arising from Defendant’s assertion of a counterclaim in the Arbitration (the “Arbitration Counterclaim”). Now before the Court is Plaintiffs’ motion for judgment on the pleadings, as well as Defendant’s motions to compel arbitration or, in the alternative, to dismiss and to amend its answer. For the reasons set forth below, Plaintiffs’ motion is DENIED, Defendant’s motion to compel arbitration or, in the alternative, to dismiss is DENIED, and Defendant’s motion to amend its answer is GRANTED. I. BACKGROUND On November 6, 2009, EGP Geronimo Holding Company, Inc. and Geronimo Wind Energy, LLC entered into a Project Investment Agreement by which Geronimo Wind Energy, a predecessor to Defendant, Am. Compl. 74; Second Am. Ans. 10, granted to EGP Geronimo Holding Company and its affiliates a first option to invest in Geronimo Wind Energy’s projects. The provision reads: “Geronimo hereby grants to [EGP Geronimo Holding Company and its affiliates], the right, but not the obligation,…to acquire from Geronimo 100 percent of the membership interests…in any and all respective Project Entities which own projects….” Project Investment Agreement §1.1 (Dkt. No. 40-2). By the terms of this agreement, Geronimo Wind Energy was “primarily responsible for performing all reasonable and necessary activities relating to the development of its wind energy projects…with the goal of having such projects meet [EGP Geronimo Holding Company's and its affiliates'] investment criteria.” Id. Third Whereas Clause. At the same time, EGP Geronimo Holding Company and Geronimo Wind Energy also entered into a Membership Interest Purchase Agreement. Membership Interest Purchase Agreement (Dkt. No. 40-1). Plaintiffs characterize these transactions as initiating a “global deal” between “entities related to the parties in this action.” Am. Compl. 73. The Project Investment Agreement remained in effect until February 27, 2015, when it was terminated by a Termination agreement. Am. Compl. 82; Second Am. Ans. 11. Following the termination, Defendant and other entities were involved in several restructuring transactions, Second Am. Ans. 12, out of which Defendant, Geronimo Energy, LLC, and Plaintiff, Enel Minnesota Holdings, LLC (“Enel Minnesota Holdings”), were born, see Legacy Release Agreement Preamble (Dkt. No. 17-2). Defendant is a successor to Geronimo Wind Energy, and Plaintiff Enel Minnesota Holdings is affiliated with Plaintiffs Enel Green Power North America, Inc. and Enel Kansas, LLC. Contribution Agreement 1.1 (Dkt. No. 17-1). Following the termination and restructuring, the two agreements at issue in this case — the Legacy Release Agreement and the Contribution Agreement — were executed. See Dkt. Nos. 17-1, 17-2. A. Relevant Provisions of the Governing Agreements 1. Legacy Release Agreement The Legacy Release Agreement was entered into by Defendant, GWE Legacy, LLC, and Plaintiff Enel Minnesota Holdings on March 24, 2015. It provides, in relevant part, that Defendant releases, acquits and forever discharges each Released Party of and from any and all manner of Claims which such Releasor Party ever had, now has, or hereafter may or shall have against any Released Party arising out of any matters, causes, acts, conduct, claims, circumstances or events occurring or failing to occur to the day of the date of this Agreement, other than the Retained Obligations. Legacy Release Agreement §2(a) (Dkt. No. 17-2). “Releasor Party” is defined to include Defendant, and “Released Party” includes [Enel Minnesota Holdings], its Affiliates and subsidiaries and each present or former director, officer, employee, managing member, or manager of any such Person, and each of their respective subsidiaries and Affiliates, attorneys, agents, representatives, trustees, and employees, and each of their respective heirs, executors, administrators, successors and assigns, in each case, excluding any Releasor Party. Id. §1. By the terms of this agreement, Defendant does not release claims arising out of the “Retained Obligations,” which are defined as “(a) all obligations of any kind under the Option Documents, other than this Agreement, and (b) in the case of the New GWE Releasors, the Enel Post-Closing Obligations (as defined in the Contribution Agreement).” Id. 2. Contribution Agreement The Contribution Agreement was entered into by Defendant’s predecessor, New GWE, LLC, and Plaintiff Enel Minnesota Holdings’ predecessor, Geronimo Wind Energy, LLC, on February 27, 2015. It provides, in relevant part, that Defendant’s predecessor will assume certain liabilities of Plaintiff Enel Minnesota Holding’s predecessor and “will indemnify, defend and hold harmless each GWE Indemnified Person for any and all Damages incurred by a GWE Indemnified Person to the extent based upon, arising from, with respect to, by reason of, or in connection with…(ii) all Assumed Liabilities.” Contribution Agreement §4.1(a) (Dkt. No. 17-1). “GWE Indemnified Person” is defined as “(i) GWE, (ii) each Affiliate of GWE, and (iii) each Representative of GWE or any Affiliate of GWE, excluding in each case, from and after the Effective Time, New GWE, any Affiliate of New GWE, and any Representatives of GWE or any such Affiliate.” Id. §1.1. As such, GWE Indemnified Persons include Plaintiff Enel Minnesota Holdings, successor to Geronimo Wind Energy, as well as Plaintiffs Enel Green Power North American and Enel Kansas, which are affiliates of Enel Minnesota Holdings. The liabilities assumed by Defendant’s predecessor under this agreement include “all Liabilities under, based upon, arising from, with respect to, by reason of, or in connection with any Assumed Contract,” which in turn are defined as “all Contracts of GWE [Plaintiff Enel Minnesota Holding's predecessor], in each case, excluding any Retained Assets, individually or collectively as the context requires.” Id. Retained Assets are not at issue in this case. Damages for which Defendant’s predecessor, and therefore Defendant, must indemnify Plaintiffs under this agreement include all losses, Liabilities, Claims, damages, obligations, fines, payments, Actions, causes of action, assessments, judgments, amounts paid in settlement and other costs and expenses (including reasonable costs of investigation and defense and reasonable fees and expenses of legal counsel, accountants and other professional advisors) of any kind, so long as such damages arise from the Assumed Liabilities. Id. B. Procedural Background This litigation was precipitated by the Arbitration Counterclaim, which was filed by Defendant in the Arbitration initiated by Plaintiff Enel Kansas prior to Plaintiffs filing this action. Am. Compl. 87; Second Am. Ans. 13. Plaintiff Enel Kansas initiated the Arbitration, claiming that it was entitled to a payment from Defendant under agreements related to a solar energy project called the “Aurora Project,” which was developed while the “global deal” between the parties remained in effect. Am. Compl.
85-86. They claim entitlement to this payment based on agreements related to the Aurora Project, including a Membership Interest Purchase Agreement entered into by Enel Kansas, Geronimo Wind Energy, and Aurora Distributed Solar, LLC on June 13, 2014. See Dkt. No. 17-3 at 11. Defendant then asserted the Arbitration Counterclaim, requesting that the demand for arbitration be dismissed and seeking further relief. Id. at 9. Count I of the Arbitration Counterclaim seeks relief for breach of a partnership agreement that allegedly existed between the parties during the time the “global deal” was in effect; Count II seeks relief for a breach of fiduciary duties allegedly owed to Defendant as Plaintiffs’ partner; and Count III seeks relief for breaches of agreements related to the Aurora Project. Id. at 7-9. Plaintiff initiated this action on June 29, 2018. The Complaint alleges that Defendant’s assertion of the Arbitration Counterclaim breached the Release Agreement between the parties, whereby Defendant released Plaintiffs from the claims Defendant now asserts in the Arbitration Counterclaim, and triggered indemnity obligations under the Contribution Agreement between the parties, such that Defendant is now obligated to indemnify Plaintiffs for any damages, costs, and expenses related to Defendant’s Arbitration Counterclaim. Dkt. No. 1. On August 20, 2018, Plaintiffs amended their complaint. Dkt. No. 17. Defendant then filed an answer with affirmative defenses on August 27, 2019, Dkt. No. 20, which it amended on August 28, 2018, Dkt. No. 21. Defendant moved to amend its answer once again on December 3, 2018. Dkt. No. 42. The Court hereby grants that motion, which is unopposed; the Second Amended Answer is therefore the operative answer in this matter. See Dkt. No. 44-1. On October 24, 2018, Plaintiffs filed a motion for judgment on the pleadings, seeking a declaratory judgment that the Arbitration Counterclaim was released by the Legacy Release Agreement, damages related to Defendant’s alleged breach of the Legacy Release Agreement, and specific performance of indemnity obligations that exist under the Contribution Agreement. Dkt. No. 22. Defendant filed its opposition on November 21, 2018, Dkt. No. 37, and at the same time filed its own motion to compel arbitration or, in the alternative, to dismiss, Dkt. No. 39. Plaintiffs filed both their reply in further support of their motion for judgment on the pleadings, Dkt. No. 46, and their opposition to Defendant’s motion to compel arbitration, or in the alternative, to dismiss, Dkt. No. 47, on December 7, 2018. Defendant filed its reply in further support of its motion to compel arbitration or, in the alternative, to dismiss, on December 14, 2018. Dkt. No. 49. On March 15, 2019, after these motions were fully briefed, Plaintiffs filed a letter with the Court to advise it that the arbitration panel dismissed Counts I and II of the Arbitration Counterclaim for lack of jurisdiction. See Dkt. Nos. 69, 69-1. According to Plaintiffs, Defendant agreed in the Legacy Release Agreement to release Plaintiffs from any claims arising out of the Project Investment Agreement, any alleged partnership between the parties, and agreements related to the Aurora Project. Am. Compl.
