Hi all, I'm a new. I am about to file MTC arb with JAMS (already sent Election letter to Amex's lawyer - Michael & Associates), but need some help with the legal lingo - I believe the structure is supposed to be divided into: Notice of Motion; Memorandum or Points and Authorities; Conclusion. I got the following from Linda7's posts mostly, adjusted it to Amex's card agreement. If a lawyer here like @calawyer could please help me edit the draft I have so far to make sure it complies with CA requirements, I would GREATLY appreciate it!!! Also I read in another post I don't need the Verification by Affidavit but that just a Declarations will do, is that true? What else do I need? THANK YOU!
MOTION TO DISMISS OR IN THE ALTERNATIVE COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND STAY PROCEEDINGS
NOW COMES Defendant, appearing Pro Se for its Motion to Compel Private Contractual Arbitration and as grounds thereto states the following:
1. That on or about ________, Plaintiff filed its Complaint against Defendant.
2. Defendant sent a letter via certified mail to Plaintiff's attorney on _________, electing arbitration with JAMS and requesting dismissal of this case (see Exhibit A, attached).
3. Defendant respectfully moves this court to compel binding Private Arbitration based on the terms and conditions of the Credit Card Agreement (see Exhibit B, attached).
4. The parties are bound by the Credit Card Agreement. The Arbitration Agreement states among other things:
IF ARBITRATION IS CHOSEN BY ANY PARTY, NEITHER YOU NOR WE WILL HAVE THE RIGHT TO LITIGATE THAT CLAIM IN COURT OF HAVE A JURY TRIAL ON THAT CLAIM.
YOU AND WE MAY ELECT TO RESOLVE ANY CLAIM BY INDIVIDUAL ARBITRATION. CLAIMS ARE DECIDED BY A NEUTRAL ARBITRATOR.
CLAIMS WILL BE REFERRED TO EITHER JAMS OR AAA AS SELECTED BY THE PARTY ELECTING ARBITRATION.
YOU OR WE MAY OTHERWISE ELECT TO ARBITRATE ANY CLAIM AT ANY TIME UNLESS IT HAS BEEN FILED IN COURT AND TRIAL HAS BEGUN OR FINAL JUDGEMENT HAS BEEN ENTERED.
THE ARBITRATION PROVISION IS GOVERNED BY THE FAA.
THIS SECTION WILL SURVIVE TERMINATION OF YOUR ACCOUNT, VOLUNTARY PAYMENT OF YOUR ACCOUNT BALANCE, ANY LEGAL PROCEEDINGS TO COLLECT A DEBT, ANY BANKRUPTCY AND ANY SALE OF YOUR ACCOUNT (IN THE CASE OF A SALE, ITS TERMS WILL APPLY TO THE BUYER OF YOUR ACCOUNT).
YOU WILL BE RESPONSIBLE FOR PAYING YOUR SHARE OF ANY ARBITRATION FEES (INCLUDING FILING, ADMINISTRATIVE, HEARING OR OTHER FEES), BUT ONLY UP TO THE AMOUNT OF THE FILING FEES YOU HAVE INCURRED IF YOU HAD BROUGHT A CLAIM IN COURT. WE WILL BE RESPONSIBLE FOR ANY ADDITIONAL ARBITRATION FEES.
5. The Federal Arbitration Act (FAA) 9 U.S. Code §3 provides:
“A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction or the refusal to perform the whole or any part thereof or an agreement in writing to submit to arbitration an existing controversy arising out of such contract, transaction, or refusal, shall be valid, irrevocable and enforceable save upon such grounds as exist at law or in equity for the revocation of any contract”.
Furthermore, "The “principal purpose” of the FAA is to “ensur[e] that private arbitration agreements are enforced according to their terms.” Volt , 489 U. S., at 478; see also Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp. , 559 U. S. ___, ___ (2010) (slip op., at 17). This purpose is readily apparent from the FAA’s text. Section 2 makes arbitration agreements “valid, irrevocable, and enforceable” as written (subject, of course, to the saving clause); §3 requires courts to stay litigation of arbitral claims pending arbitration of those claims “in accordance with the terms of the agreement”; and §4 requires courts to compel arbitration “in accordance with the terms of the agreement” upon the motion of either party to the agreement . . . "
6. The Supreme Court Ruling, decided April 27, 2011, AT&T MOBILITY LLC v. CONCEPCION ET U, states that courts must enforce arbitration agreements according to their terms. If there is an arbitration clause in the contract, that clause must be honored.
"We have described this provision as reflecting both a “liberal federal policy favoring arbitration,” Moses H. Cone , supra, at 24, and the “fundamental principle that arbitration is a matter of contract,” Rent-A-Center, West, Inc. v. Jackson , 561 U. S. ____, ____ (2010) (slip op., at 3). In line with these principles, courts must place arbitration agreements on an equal footing with other contracts, Buckeye Check Cashing, Inc. v. Cardegna , 546 U. S. 440, 443 (2006), and enforce them according to their terms, Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U. S. 468, 478 (1989) .”
7. The Defendant elects arbitration to settle this dispute.
WHEREFORE, Defendant moves this Honorable Court to compel private contractual arbitration pursuant to the Cardmember Agreement and to dismiss Plaintiff’s complaint due to Lack of Subject Matter Jurisdiction or in the alternative, to stay proceedings pending contractual arbitration.
Respectfully submitted this day ________________, 2017