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kittycat last won the day on May 21

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About kittycat

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  1. It can matter. Jurisdiction to vacate can be lost if the dismissal is done by notice rather than motion. See: Goodman v. Gordon, 447 P. 2d 230 - 1968 - ‎Ariz: Supreme Court google scholar or justia I'll resist the temptation to set in boldface the key passages in the above. The gist is that because a dismissal by notice is self-executing and involves no discretion of the court, the court loses jurisdiction upon its filing. Whereas a dismissal by motion is discretionary, and therefore jurisdiction for modification is retained. This can be important when sol is close. It is also why the court has jurisdiction and can use its discretion to vacate the motion in Billy's case. That wasn't one of the assumptions in my hypothetical. But it doesn't matter. Billy isn't participating in this thread, so I'm just getting tag-teamed by those that have done incomplete readings or have misunderstood my posts.
  2. Because my last few replies to you involved addressing questions that you had just posed but that I had already asked Billy previously in the thread, and that Billy had already answered. For example, in your most recent reply, you stated: "This is why i want to see the wording of the Motion to Dismiss and Motion to Vacate" But I had already asked Billy about the contents of those motions on the same day that he posted about them. And he replied with the details of the contents of those motions shortly thereafter. So, I added emphasis when I copy and pasted those prior forum posts that contained my inquiry to Billy and his response, because you were asking about them now, when answers had already been provided. I just wanted to be sure that you didn't miss them. Sorry. The efforts that were related by Billy in the post of his that I quoted in my previous reply to you. It is at the very end of the post, I won't quote it again. Perhaps you'll say that the actions taken by PRA as described by Billy aren't efforts consistent with an intention to dismiss the court case and settle the claims. It's fine if we disagree.
  3. This is why i want to see the wording of the Motion to Dismiss and Motion to Vacate. OP said the Motion to Dismiss didn't say anything about the court case or arbitration, which would be very odd if the MTD was intentional. Inadvertently filing a MTD in the wrong case wouldn't be unheard of and is a perfectly justifiable reason to request a Motion to Vacate. In your above quote from Billy's "5/18/2020 at 3:34PM" post, the rest of that sentence makes it less mysterious: In the run-up to the filing of the motion to dismiss with prejudice, all of their other efforts at the time were consistent with trying to kill the court case. And at that time they were doing nothing in AAA. They did not elaborate and I filed an opposition to their motion to vacate this afternoon. I argued that they had a deliberate change of strategy rather than having made a mistake, and included 3 exhibits. I was able to demonstrate that they made multiple attempts to dismiss the case (they mailed me a stipulated offer to dismiss without prejudice a few days before filing their motion to dismiss with prejudice), and this was weeks before they made their initial payment to AAA. So I feel confident their motion to vacate will be denied, though I could be wrong of course.
  4. You've typed "voluntarily" in boldface in several of your prior posts. Do you mean to imply that retraxit (or voluntary dismissal with prejudice, if you like) is somehow not equivalent to a verdict and judgment on the merits of the case, and doesn't bar another action for the same cause between same parties? That somehow the "voluntarily" nature of the motion to dismiss with prejudice is lesser than a verdict and judgment on the merits of the case? It isn't entirely voluntary in az, at least in the sense that PRA had to make a motion to the court. They couldn't do it unilaterally without court approval. Billy had already answered. And it probably never would. The purpose of that particular hypothetical was to flesh out your opinion of the effect of a verdict and judgment (on the merits of the case) on further attempts to pursue the very same claims, in whatever forum. Apparently your view is that there is no finality. I will pause posting about this topic now. Apparently no one here finds my posts of any value. They'll also be moot if the court grants the the motion to vacate the dismissal with prejudice ("Motion to Reinstate Dismissed Case"). Since Billy doesn't have an attorney, this may very well happen. I'll chime back in if the court denies the "motion to reinstate dismissed case". There is no sense in spinning my wheels on this subject any more right now.
  5. No. That's in the May 12th "Motion to Reinstate Dismissed Case" (Motion to Vacate), not in the Feb 11th motion to dismiss with prejudice. All of the information below appeared earlier in this thread. Billy filed a motion to compel arbitration sometime between September and December 2019. The court granted the motion in December 2019. PRA's original in-house attorney filed the motion to dismiss with prejudice on February 11th, 2020. (in the interim between Dec. and Feb., PRA apparently also sent settlement correspondence). There was no reference to arbitration in the Feb. 11th motion to dismiss with prejudice. PRA changed the in-house attorney on the case. The court granted the motion to dismiss with prejudice on April 22nd. On May 12th, PRA filed an expedited "Motion to Reinstate Dismissed Case" (Motion to Vacate the April 22nd order [dismissing with prejudice])
  6. When they filed the motion to dismiss with prejudice. My reasoning is based on the modern law interpretations of the effect of filing such a motion (as explained in the previously linked pdf), combined with the common law definition of retraxit, some of which has been incorporated into modern civil jurisprudence.
  7. Consider the follow hypothetical: 1. PRA brings claims against Billy in az justice court. 2. Billy prevails at bench trial in az justice court. 3. PRA doesn't appeal to az superior court within the time allowed, but instead files a case for the same claims in arbitration. 4. Billy ignores all of the correspondence from the arbitration forum, believing that the court adjudication was final. 5. PRA could file its own "MTC arbitration" in order to get Billy to participate in the arbitration proceedings, but since PRA has paid all of the arbitration costs, the arbitration forum allows PRA to proceed with the arbitration case against Billy in absentia. The arbitration is held without Billy being present, and the arbiter issues an award against Billy. As you've said, "The dismissal does not deprive the court of jurisdiction to confirm an award": If Billy were to oppose confirmation of the award, would "waiver" be the sole basis that Billy could use in opposition of the award being confirmed?
  8. And not whether the specific claims at issue have already been adjudicated? Or, is final adjudication only a form of waiver in your view, and not an independent obstacle to arbitration in its own right? Final adjudication of claims by a court is only a factor to be considered in the determination of whether or not that party has waived some right to pursue the very same claims in arbitration, and may not be considered for anything other than the determination of waiver?
  9. All that would matter is an evaluation of waiver? It wouldn't matter that the very same claims had already been finally adjudicated in a form equivalent to a bench or jury trial? It might be useful for Billy to describe the history of events in the arbitration filing/case I'm assuming that Billy is the claimant, and filed with either no claims or vague claims. And that respondent PRA filed counterclaims (in the arbitration case) some time subsequent. I'm wondering if the respondent's counterclaims where filed after they filed the motion to dismiss with prejudice.
  10. Of course it doesn't "nullify" the arbitration provision. For other claims. What has been dismissed in court is not as much the "case", but the claims. What you seem to be saying is that PRA can make a public renunciation in open court of the alleged claim(s), have a court render final judgment and adjudication of those particular claim(s), and all PRA loses is access to the courts? PRA is not estopped from pursing (or continuing pursuit of) the very same claims for which they have just made a public renunciation? And if the arbitration case continues to the end, two separate forums (the court and the arbitration forum) may have each, fully and independently, rendered inconsistent final determinations about identical claims.
  11. This is not a dismissal of any kind, it is a dismissal of a particular kind: If you accept that the filing of a dismissal with prejudice is retraxit, and has the same force as having a count render a final judgement on the merits, which in turn constitutes an absolute bar to a subsequent action involving the same claim(s) or cause of action, then how would you distinguish any other final judgment on the merits from preventing a party from pursing the same claims in arbitration after that final judgment? All court orders prior to the final judgment are interim orders that are subject to revision prior to final judgment. The final judgment usually extinguishes the prior orders unless they are restated again in the final judgment. For example, had the court granted a motion by the defendant to compel discovery prior to the court granting the plaintiff's motion to dismiss the claims with prejudice, the defendant would not likely be able to still seek enforcement of that discovery order after final judgment. My view is that order granting the motion to compel was a interim order that was not incorporated into the final judgment, and therefore was extinguished when the final judgment on the merits was rendered. I believe that this is especially true since the plaintiff's motion to dismiss with prejudice was filed subsequent to the court's decision on the compel motion, and there was no motion pending before the court about arbitration when the plaintiff later filed the motion to dismiss with prejudice What appears to distinguish the above cases from Billy's case is that the court's dismissal order was intertwined with it's decision ordering arbitration. In other words, the motion before the court, respective to the rendered order, was the compel motion. The court (in essence, of its own motion) was deciding how to dispense with any remaining issues in the case given that it was ordering arbitration as its primary decision in regard to the compel motion. That is not what happened in Billy's case. I don't know what the court ordered at the time it granted the compel motion in regard to any stay or other disposition of the court case. But at that time, there was no motion before the court from the plaintiff asking the court to dismiss the plaintiff's claims with prejudice. It was subsequent to all of that the plaintiff filed the motion to dismiss with prejudice. If you don't accept the tenets of retraxit (the the motion to dismiss with prejudice was a public renunciation in open court of an alleged claim of action and had the effect of forever estopping the plaintiff of raising the same cause of action), then what effect do you believe that such a motion has? What is missing in the above cases is a subsequent public renunciation in open court of the alleged claim of action in the form of a separate and subsequent motion to dismiss with prejudice that was entirely unconnected to any pending motion, response, or reply in regard to the motion to compel arbitration.
  12. The motion to dismiss with prejudice seems like textbook retraxit to me. Especially since PRA filed it with the court in mid February, before paying the case management fee and before AAA sent the initiation email on March 9. The Retraxit Trap
  13. The "bad standing with AAA" circumstance is overridden in a particular case by a court order compelling PRA to arbitration, which happened in your case, and as far as AAA currently knows, is still in force. When AAA does send a notice about bad standing, it is soon after the filing. Not after there has been a court order and PRA has already paid some money.
  14. Why not? Specifically. Plaintiff moved to dismiss with prejudice. My understanding is that, unless otherwise stated by the court, this terminates prior orders of the court finally, including the order compelling Plaintiff to arbitrate. Assuming that the court denies the motion to vacate the dismissal with prejudice, what's your reasoning that Billy must continue with the arbitration? What remedy would Plaintiff have if the court denies the motion to vacate and Billy does not continue with the arbitration? There isn't really an equivalent to a default judgment in an arbitration case, especially of the consumer variety. PRA wouldn't be asking for an expedited motion to vacate the dismissal with prejudice, and to proceed in arbitration, if they didn't think that if the court's order of dismissal with prejudice stands, then both avenues are sunk.
  15. This is pretty strong evidence against any claim based on any of the four (mistake, inadvertence, surprise, or excusable neglect). I'd like to think that your chances are good, but Arizona (JP).