kittycat

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Everything posted by kittycat

  1. "With prejudice" as compared to "without prejudice" is pretty different, as you say. One way they demonstrate consistent intention is that both were done at the time that PRA was sending draft release agreements to dispose of the claims in their entirety. So, if PRA had filed a motion to dismiss without prejudice (perhaps even the exact copy that they had sent Billy with the settlement agreement document), they what PRA would have filed would've been entirely consistent with Billy's case. The "lawfirm" handling the case is PRA themselves. All of the attorneys listed on the documents Billy uploaded have 10+ years experience in-house at PRA and lots of staff and monetary resources. They also have automated systems in place that use AI to flag inappropriate filings. All of them also have lots of experience with the arbitration defense. That is not to say that a mistake is impossible, but it seems unlikely to me. I find Billy's guess, that they decided to change strategy after filing the motion to dismiss with prejudice, to be more likely than it being a mistake. Maybe some discovery with the lead attorney of record when the motion was filed could uncover the actual intention at the time. If the court would ever allow it, but they likely wouldn't. Did the stipulated agreement, notwithstanding the motion document included, have language that described a mutual release? Was it in the boilerplate form, entitled with something like "Stipulated Agreement and Mutual Release". Perhaps, since you didn't accept it, you can upload a redacted copy of the stipulated agreement. If the stipulated agreement had effective language for a mutual release, you should've jumped on it, regardless if the motion document attached was without prejudice.
  2. You had noted my references to “voluntary”. I explained why I included that term. It was a voluntary rather than involuntary dismissal. Then you state that it wasn’t entirely voluntary. Well, according to AZ rules of civil procedure, voluntary dismissal includes a motion to dismiss after an answer is filed. My response was only in regard to what is considered a voluntary dismissal. That’s all. It had nothing to do with the court’s discretion or anything else. Let's set aside whether or not an action that cannot be completed without the intervention and approval of another is as voluntary as one that can. The larger point of my statement was contained in what proceeded the portion that you chose to quote above; It seemed to me that you highlighted the voluntary nature of the dismissal, not because it met the definition contained within the arcp, but rather because it was an important distinction as compared to some other kind of dismissal, like a verdict and judgment on the merits of the case. The point I was trying to make is that they are equivalent in force and effect, or to the extent that there is any distinction, it is without a difference in force and effect.. It seemed to me that the implication of your remarks was that the voluntary nature of the dismissal was an important distinction in terms of force and effect. If the only reason that you chose to set "voluntary" in boldface numerous times across multiple posts was because it met the definition contained within the arcp, and not because this type of dismissal is distinguishable (in terms of force and effect) to the other types of dismissals described, then I misunderstood the implication of your choice to emphasize "voluntary".
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. 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])
  8. 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.
  9. 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?
  10. 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?
  11. 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.
  12. 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.
  13. 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.
  14. 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
  15. 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.
  16. 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.
  17. 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).
  18. Something like that. Since there is a court order dismissing the matter with prejudice that will not have been vacated at the time of your phone hearing. it would seem that the arbitrator could not move the arbitration case ahead or schedule anything further until there is a decision on the motion to vacate. Especially since the motion to dismiss was brought by the plaintiff. I suppose that you could argue to the arbitrator that the arbitration case should be dismissed because of the court order, but then maybe if the court vacates the dismissal order you may get stuck in court for further proceedings. Do they elaborate on "mistake, inadvertence, surprise, or excusable neglect" in the motion to vacate? How this goes is pretty much up to the JP.
  19. For the references in this discussion to "a problem that never existed" and "the numbers don't [exist]", what problem and numbers are being referred to? Is this claim of non-existence being made in a universal global sense, or in some regional and/or local sense? Nearly any attempt at worthwhile prevention will often necessarily be an antecedent condition to the existence of the situation for which an attempt at prevention is being made. Post hoc, critics will say that there was never any problem, discounting the possibility that any problem had been averted or mitigated. Any action taken quickly enough to actually have an effect will be said to have clearly been unnecessary. See the Prevention paradox. On the other side, if insufficient preventative action was taken, critics will complain post hoc that some present horrible circumstances could have been avoided. The policy decisions being made here are objectively complex. The data is fast moving. The effects of these decisions will cause reverberating externalities Errors are virtually guaranteed. Even botching it all is more likely than not.
  20. A few localities have enacted measures to forbid levy of stimulus funds. Some members of congress have expressed interest in adding some similar language to one of the next bills. On the other side, debt buyers are lobbying against this and have sought local designation as essential businesses. AG issues emergency regulation to protect consumers during coronavirus crisis Time is Running Out to Protect Americans’ Relief Payments from Debt Collectors Debt collectors are going after consumers during the COVID-19 crisis Stimulus Checks Are Coming Next Week. Could Private Debt Collectors Grab Them? Debt Collection Industry Deems Itself Essential To “Financial Health” Of Consumers, Fights Covid-19 Shutdown
  21. How did Billy shoot his own foot off if PRA filed the motion to dismiss with prejudice? Billy, how did PRA word their motion to dismiss? Is there any reference to the arbitration order or case in any way?
  22. If the judge denies the motion to compel and at this exact moment the stay is effectively lifted, shouldn't the judge have to allow 30 days from the time the stay is lifted for craneguy to respond? Maybe even argue that their motion for summary judgment is improper for having been filed while there is a stay and that they should have to refile it when there is not a stay. Otherwise they are being rewarded for having violated the stay. I don't know if there is caselaw about motions made during a stay or about penalties for violating a stay. The stay language in the arbitration statue isn't as clearly automatic as it is in the bankruptcy code. The arbitration statue requires a stay but the court might have to order the stay. The automatic stay in 11 U.S. Code § 362 comes into effect instantly when the debtor files a bankruptcy case without the need for any court order. 11 U.S. Code § 362 - Automatic stayA petition filed under section 301, 302, or 303 of this title, or an application filed under section 5(a)(3) ... operates as a stay The arbitration statue says 'shall be stayed'. 'Operates as a stay' seems more automatic.
  23. The court has to rule on your motion eventually and notify you of the ruling. Did Bursey file a response to your motion? If you filed it in mid-July then it is coming up on 60 days pretty soon. Your case reminds me of azwildman's case where shortly after filing a motion to compel, midland slips in a summary judgment motion. The law may support the court being required to rule on your motion first before ruling on their summary judgment motion. Maybe others will suggest how to make that argument. I'm not sure how to make it.
  24. I may be a little bit wrong. I didn't read it in the rule list. That New Mexico case I read last week led to two Arizona cases which led to another Arizona appeal case in which I read about the agreement requirement. Now I can't find it again. When I look at the rule list now the closest thing I can find to what I remember reading in the case is the disclosure statement rule 121(a)(3)(B )(i). Sorry for anyone I misled. I should have read more carefully.
  25. The oldest agreement that can be traced back directly to Fred Meyer on the internet archive is from 04/10. The "FRM" in the following URL signifies Fred Meyer. You can view the surrounding pages on the internet archive for more information. https://web.archive.org/web/20101225075051/https://www.citicards.com/cards/acq/cmaView.do?PID=FRM&cma=true&locale=en_US The discovery rules in your state say they have to disclose the agreement in all contested cases regardless of the cause(s) of action or provide a good reason why they can't. This isn't law and the court could just ignore violations of discovery rules.