Wouldn't it be ironic, If the lawyer went on extended memorial day holiday Friday-Thursday and came back on late June 2 only to find out that hearing was not cancelled and they were no show and your MTC was granted.
P.S. did letter have a tracking number? were you able to get tracking information?
@BulldogerI did, I e-filed because that way I could ask the court to email it to the plaintiff plus I mailed them a copy just in case. Fingers crossed that this will work and the 6/2 hearing will be held. Thank you again for all your help!
From my first Memorandum of Points:
A party may waive its right to insist on arbitration if the party `so substantially utiliz[es] the litigation machinery that to subsequently permit arbitration would prejudice the party opposing the stay.'" Id. at 250 (quoting Maxum Founds., Inc. v. Salus Corp., 779 F.2d 974, 981 (4th Cir.1985)). "But even in cases where the party seeking arbitration has invoked the `litigation machinery' to some degree, `[t]he dispositive question is whether the party objecting to arbitration has suffered actual prejudice.'" Id. (quoting Fraser v. Merrill Lynch Pierce, Fenner & Smith, Inc., 817 F.2d 250, 252 (4th Cir.1987)). Neither the mere filing of pleadings nor delay will suffice by themselves to establish waiver; instead, the opposing party has to show some real, tangible prejudice.
United States Court of Appeals, Fourth Circuit
Apr 28, 1987
817 F.2d 250 (4th Cir. 1987)
Holding that the defendant had waived arbitration after "eight discovery motions, four of which were made by [the defendant,] . . . two motions in limine, one motion for partial summary judgment, . . . three motions to dismiss, . . . four status conferences, five hearings on pending motions, . . . two pretrial conferences [t]wo trial dates [which] were cancelled prior to the arbitration motion hearing date"
here are some other summaries finding prejudice:
Summary of this case from Connell v. Apex Sys., LLC
Finding actual prejudice when the party opposing arbitration had to respond to multiple dispositive motions and "prepare repeatedly for trial rather than for arbitration"
Summary of this case from Forrester v. Penn Lyon Homes
Finding prejudice arising from the fact that non-movant "had to respond to a number of potentially damaging motions, including a motion for partial summary judgment and three motions to dismiss"
Summary of this case from Patten Grading & Paving, Inc. v. Skanska USA Bldg., Inc.
Finding default where the nonmoving party was required to make, argue, or defend against at least eight discovery motions
Summary of this case from Capps v. Harris
Finding prejudice when the party opposing arbitration "had to respond to . . . a motion for partial summary judgment and three motions to dismiss"
Summary of this case from Smiley v. Forcepoint Fed., LLC
Finding that the defendant's four-and-one-half year delay in moving to compel arbitration supported a finding of actual prejudice
Summary of this case from Innotec LLC v. Visiontech Sales, Inc.
Finding prejudice where three motions to dismiss and a motion for summary judgment had been filed
Summary of this case from Bronco Constr., Inc. v. Schotten Fenster, LLC
Finding sufficient prejudice to support waiver where brokerage firm delayed four-and-one-half years before seeking arbitration, two trial dates passed, and opposing party was required to respond to two motions for partial summary judgment and three motions to dismiss
Summary of this case from Haddock v. Quinn
Affirming district court's denial of motion to compel arbitration when Merrill Lynch waited over four years before seeking to compel arbitration; the district court had considered eight discovery motions, four of which were made by Merrill Lynch; and Merrill Lynch had filed two motions in limine, one motion for partial summary judgment, which was granted, and three motions to dismiss
Summary of this case from Rota-McLarty v. Santander Consumer USA, Inc.
Reaching the same conclusion where several of the plaintiff's claims were defeated on summary judgment over two years before the defendant demanded arbitration
This verdict appears to correct an error made by lower court of appeals, IMO, nothing really has changed. Credit card companies were aware of this as in my current suit the contract specified a 90 day window after being served wherein you can file a motion to compel arbitration. Thus eliminating any need to consider prejudice.
It has and is still the advice here to file MTC as early as possible with the answer if possible.