Sample of motion MTC

[oregonpilot]

Looking for a sample of motion to compel arbitration with FAA law

I have the state law

I need to get this filed ASAP

[oregonpilot]

MOTION TO COMPEL

ARBITRATION AND DISMISS

OR IN THE ALTERNATIVE, TO STAY PENDING ARBITRATION

The Defendant moves to dismiss Plaintiff DISCOVER Bank USA, Complaint pursuant to ORS 36.625 Petition to compel or stay arbitration, Federal Rule of Civil Procedure 12((1), or, in the alternative, to compel arbitration of DISCOVER Banks claims and to stay these proceedings pending arbitration pursuant to the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”). In support of its motion, Defendant incorporate the Memorandum of Points and Authorities submitted herewith, and state as follows:

1. The Plaintiff DISCOVER Bank has entered a written agreement wherein they agreed to arbitrate all disputes arising between them. The parties therefore agreed that no courts, including this Court, would have jurisdiction to hear their disputes. Accordingly, the Court should dismiss Plaintiff’s Complaint pursuant to Rule 12((1).

WHEREFORE, The Defendants respectfully request that this Court dismiss DISCOVERS Complaint pursuant to Rule 12(

The Card Member Agreement recently sent to Defendant by Discover Bank contains the following arbitration provision:

Arbitration of Disputes. Agreement to arbitrate. In the event of any past, present or future claim or dispute (whether based upon contract, tort, statute, common law or equity) between you and us arising from or relating to your Account, any prior account you have had with us, your application, the relationships which result from your Account or the enforceability or scope of this arbitration provision, of the Agreement or of any prior agreement, you or we may elect to resolve the claim or dispute by binding arbitration. IF EITHER YOU OR WE ELECT ARBITRATION, NEITHER YOU OR WE SHALL HAVE THE RIGHT TO LITIGATE THAT CLAIM IN COURT OR TO HAVE A JURY TRIAL ON THAT CLAIM.

The agreement also contains outlines for the procedure for initiating arbitration as follows.

Governing Law and Rules. Your Account involves interstate commerce and this provision shall be governed by the Federal Arbitration Act (FAA). The arbitration shall be conducted, at the option of whoever files the arbitration claim, by either the American Arbitration Association (AAA) or the National Arbitration Forum (NAF) in accordance with their procedures in effect when the claim is filed. For a copy of their procedures, to file a claim or for other information, contact AM at 335 Madison Ave., Floor 10, New York, NY 10017-5905, www adr. org (phone 1-800-778-7879) or NAF at PO Box 50191, Minneapolis, MN 55405 (phone 1-800-474-2371). No other arbitration forum will be permitted, except as agreed to pursuant to either the Changes to this Agreement section or a writing signed by both parties. Unless consented to by all parties, no arbitration may be administered by any administrator that has any formal or informal policy, rule or procedure that is inconsistent with or purports to override the terms of this section. If we elect to resolve a claim or dispute by binding arbitration and the arbitrator issues an award in your favor on a claim or claims with respect to which you would not otherwise be entitled to

recover your arbitration filing, administrative and hearing fees, reasonable attorneys' fees and or other arbitration costs, we will be responsible for paying or reimbursing such costs and fees if awarded

by the arbitrator.

Fees and Costs. At your written request, we will advance any arbitration filing, administrative and hearing fees which you would be required to

pay to pursue a claim or dispute as a result of our electing to arbitrate

that claim or dispute. Send requests to Discover Card, PO Box 30421, Sail Lake City, UT 84130-0421. The arbitrator will decide who will ultimately be responsible for paying those fees. You will only be responsible for paying or reimbursing our arbitration filing, administrative or hearing fees to the extent you would have been responsible for paying "attorneys' fees and court or other collection costs" had

the action proceeded in court. In no event will you be required to pay any fees or costs incurred by us in connection with an arbitration proceeding where such a payment or reimbursement is prohibited

by applicable law,

ARGUMENT

I. THE COURT SHOULD DISMISS PLAINTIFF’S COMPLAINT BECAUSE ARBITRATION IS THE EXCLUSIVE REMEDY FOR THESE CLAIMS.

Pursuant to the parties’ contract, this Court cannot be a forum for any disputes between the parties. Under Federal law, an action should be dismissed where a party contractually agrees exclusively to arbitration. See,

The Supreme Court’s second 2008 arbitration decision, Preston v. Ferrer, 552 U.S. 346 (2008), holds that the FAA overrides not only state statutes that refer disputes initially to a court, but also state statutes that refer disputes initially to a state administrative agency. e.g., Simula, Inc. v. Autoliv, Inc., 175 F.3d 716, 726 (9th Cir. 1999) (affirming district court’s order compelling arbitration and dismissing complaint); Sparling v. Hoffman Constr. Co., Inc., 864 F.2d 635, 638 (9th Cir. 1988) (affirming dismissal of claims where all claims were subject to arbitration); see also Martin Marietta Aluminum, Inc. v. General Electric Co., 586 F.2d 143 (9th Cir. 1978) (affirming grant of summary judgment where all claims to court were barred by arbitration clause);

Because Chase’s agreement with the Defendants clearly state that all disputes, must be resolved through arbitration and cannot be brought in a court, this Court should dismiss Chase’s Complaint and allow the parties to arbitrate their disputes in accordance with their agreement.

ARBITRATION PROVISION IS BINDING AND REQUIRES ARBITRATION

Congress enacted the FAA to reverse the long standing judicial hostility toward arbitration agreements “and to place arbitration agreements upon the same footing as other contracts.” Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 24 (1991). The FAA establishes a liberal policy favoring arbitration agreements and requires courts to enforce rigorously private arbitration agreements according to their terms. Volt Info Scis., Inc. v. Board of Trustees, 489 U.S. 468, 479 (1989). A court should not strike down an arbitration agreement except in those very limited circumstances where the arbitration agreement at issue is unenforceable on a ground that exists at law or equity for any contract, such as fraud, OR duress. Doctor’s Assocs., Inc. v. Casarotto, 517 U.S. 681, 687 (1996); see also Ticknor v. Choice Hotels Int’l, Inc., 265 F.3d 931, 936-37 (9th Cir. 2001), cert. denied, 534 U.S. 1133 (2002). Courts should give deference to these Congressional findings and directives when determining the enforceability of the parties’ arbitration agreements. See Simula, 175 F.3d at 719 (holding that the FAA

“reflects Congress’ intent to provide for the enforcement of arbitration agreements within the full reach of the Commerce Clause”).

A. The FAA Governs the Arbitration Agreement in this Case.

The FAA governs whether the parties’ Arbitration Provision is enforceable. The parties’ Agreement provides: “This Arbitration Provision is made pursuant to a transaction involving interstate commerce and shall be governed by the FAA.” The FAA governs arbitration agreements in contracts involving transactions in interstate commerce. 9 U.S.C. § 1; Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 25 n. 32 (1983). Not only does the contract containing the Arbitration Provision at issue specifically provide that the arbitration provision is made pursuant to a transaction involving interstate commerce, but also Congress intended courts to construe “commerce” as broadly as possible. Simula, 175 F.3d at 719.

Only state law contract defenses—defenses relevant to any contact—can be used to challenge the enforceability of an arbitration agreement. The Supreme Court has unequivocally stated that the FAA precludes specialized scrutiny of arbitration agreements:

A court may not . . . in assessing the rights of litigants to enforce an arbitration agreement, construe that agreement in a manner different from that in which it otherwise construes nonarbitration agreements under state law. Nor may a court rely on the uniqueness of an agreement to arbitrate as a basis for a state-law holding that enforcement would be unconscionable, for this would enable the court to effect what we hold today the state legislature cannot.

[oregonpilot]

Perry v. Thomas, 482 U.S. 483, 493 n.9 (1987). See also Doctor’s Assocs., 517 U.S. at 687 (“courts may not . . . invalidate arbitration agreements under state laws applicable only to arbitration provisions”); Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 24 (1991) (purpose of FAA is to “reverse the longstanding judicial hostility to arbitration agreements . . . and to place arbitration agreements upon the same footing as other contracts”); Banc One Acceptance Corp. v. Hill, 367 F.3d 426, 432 (5th Cir. 2004)(explaining that “state courts may properly strike down arbitration clauses, but they may not treat arbitration clauses differently than other contract terms”) (emphasis in original).

Claiming that the enforcement of a contractual provision will have adverse effects on

society, i.e., allow businesses and industry to grant themselves “virtual immunity,” is

precisely the type of specialized, and non-contract based, argument prohibited under the FAA. The only public policy at issue in this case is the FAA and Arizona’s presumption in favor of arbitration.

B. The Arbitration Provision Does Not Violate Public Policy.

The Arbitration Provision does not violate public policy. As previously discussed, both federal and Arizona courts have expressed a public policy favoring arbitration. Volt, 489 U.S. at 475-76; City of Cottonwood, 179 Ariz. at 189. The Randolph court agreed that the Arbitration Provision does not violate public policy: [A]rbitration clauses are construed liberally and any doubts about whether a matter is subject to arbitration are resolved in favor of arbitration.” City of Cottonwood v. James L. Fann Contracting, Inc., 179 Ariz. 185, 189, 877 P. 2d 284, 288 (App. 1994).

Defendant respectfully requests that this Court enforce the contract entered into between the parties to compel arbitration, and stay these proceedings pending arbitration.

[nobk4me]

Who is the plaintiff/creditor? In one part of the motion, you state Discover, but there is a paragraph that mentions Chase.

[oregonpilot]

I cant beleive I missed that, it is Discover

I have not mailed to the attorneys yet I will fix before I do

But I did file with the court this afternoon

Do you think I Should refile a revised motion tomarrow

Edited August 19, 2010 by oregonpilot

[nobk4me]

I cant beleive I missed that, it is Discover

I have not mailed to the attorneys yet I will fix before I do

But I did file with the court this afternoon

Do you think I Should refile a revised motion tomarrow

Yes, you should file a revision or correction. What is mailed to the attorneys should be identical to what was filed in the court.

[oregonpilot]

Thanks nobk4me I followed your advice

Well, I filed the MTC about 2 weeks ago and when I came home I found in the mail

A notice of a hearing for the plaintiff's motion (in which I was to be present) for SJ on the 13th

Then a couple of days ago I received a notice of a hearing for the MTC same date and time, but this time it says "On record/ No appearance required" It will be decided on document already submitted.

I think this is a good thing??

Their attorneys have been leaving messages on my cell (which is odd since I only have my home phone on court documents)

[RebelLady]

Congrats on a job well done

[skippy1960]

Thanks nobk4me I followed your advice

Well, I filed the MTC about 2 weeks ago and when I came home I found in the mail

A notice of a hearing for the plaintiff's motion (in which I was to be present) for SJ on the 13th

Then a couple of days ago I received a notice of a hearing for the MTC same date and time, but this time it says "On record/ No appearance required" It will be decided on document already submitted.I think this is a good thing??

Their attorneys have been leaving messages on my cell (which is odd since I only have my home phone on court documents)

Not sure about your procedures, but I would check on this "no appearance required". It appears the court is going to rule on pleadings/motions submitted. If you loose your MTC, they will then go to the MSJ. If you haven't submitted opposition to this you could be out.

Check to see if your court does what is called tenative rulings. In my area they do tenative rulings, post these and if you disagree you must contact clerk by time certain and they will set for oral hearing on day originally slated for motion hearing.

Call the attornies back, maybe wanting to settle, let them know they should only be calling on phone number listed in court papers (home phone), then follow up with letter to memorialize the conversation.

[oregonpilot]

I just call the court to verify that appearance is not required and was told

that both the SJ and MTC will be heard and my MTC had been switched to oral

argument. I know Discovers Attorney are going to fight this.

[oregonpilot]

Thanks skippy are there some templates or samples to get a idea of how to write a opposition to the MSJ

Wouldnt my MTC be a opposition

Their are other issues at hand. Like the fact they still have not sent a signed contract only part of a signed card acceptance form, and a affidavit from the recorders keep dept. that all statements and totals are mine but has differant account number and that there are a number of years of statements that are suppose to be exact copies with my current address but I did not live here those years.

Edited August 30, 2010 by oregonpilot

[Guest chuckygee]

You still need to write an Objection to Motion for Summary Judgement. You can site the binding arbitration as a reason a summary judgement is not proper. You can also include legal arguments of the defects of the evidence and legal arguments to support your affirmative defenses.

The MTC should be heard first since it is a jurisdictional and procedural motion. Have an Order to Compel Arbitration ready for the judge to sign and a dismissal/stay Order ready also.

[lisser]

Dammit, I filed my Motion to dismiss or alternatively stay pending arbitration and I didn't put an order with my paperwork when I filed it today. Can I just bring one to the hearing with me?

[skippy1960]

Dammit, I filed my Motion to dismiss or alternatively stay pending arbitration and I didn't put an order with my paperwork when I filed it today. Can I just bring one to the hearing with me?

You can bring it to court with you and offer it upon ruling and approval by oposing counsel.

For future when you present a Motion you should always file a Proposed and Final order with your motion, you may have to re-write after proceeding it shows as a Pro Se you are paying attention to court rules and procedures, it is a perception.

[skippy1960]

Thanks skippy are there some templates or samples to get a idea of how to write a opposition to the MSJ

Wouldnt my MTC be a opposition

Their are other issues at hand. Like the fact they still have not sent a signed contract only part of a signed card acceptance form, and a affidavit from the recorders keep dept. that all statements and totals are mine but has differant account number and that there are a number of years of statements that are suppose to be exact copies with my current address but I did not live here those years.

Structure your response in the same fashion you recieved from them. What ever they filed you file a similar document. Example-

Plaintiffs MSJ becomes Defendants Opposition to Summary Judgement, Plaintiffs Statement if Undisputed Facts becomes Defendants Statement of Disputed Facts. If there is an avidavit filed you must file an personal avidavit which should be notarized to offset Plaintiffs affiant.

These are a ton of work, so don't know how much time you have. Chuckee is right tie your affirmative defenses into the shabby evidence and mistakes regarding account numbers you mentioned. Don't get all flustered with the law citations, concentrate on creating a "disputes of material fact", this is how you beat SJ and move on to trial.

Beat their butts on the MTC, and all this work is mute for the time being, still may need it in arbitration if they decide to fight the whole distance....

[Guest chuckygee]

You can bring it to court with you and offer it upon ruling and approval by oposing counsel.

If you bring it to the hearing and the judge approves it, the opposing counsel has no input.

[skippy1960]

If you bring it to the hearing and the judge approves it, the opposing counsel has no input.

Chucky you are right but,the opposing counsel should be standing right there at the hearing and can easily be asked to review and approve. My limited experience was the judge made some minor tweaks, and I had to rewrite and submit to court anyway.

So if he brings it and judge makes no changes to anything in the ruling, meaning complete motion victory, should be able to get a verbal approval???

[oregonpilot]

Attorney is in another state and with be attending via telephone

Edited September 1, 2010 by oregonpilot

[Guest chuckygee]

If the judge decides that the motion is "well-taken" he (or she) can just sign the order. The opposing attorney has no say so. When summary judgements are issued, they don't give you a chance to review and approve it.

This is how you play the game at their level. Draft your own orders and file them with your motion if your jurisdiction allows it, or bring it to the hearing if your jurisdiction allows it. If the judge wants to make a minor change, they can do it in their own handwriting on the document.

If it is a major revision, then he will ask one of the parties to write up an order based on his decision and submit it to the court at a later time. This is when it requires both parties to review it to insure it fits both of their understanding of what the judge rules.

The lesson is bring/submit your own, then possibly the judge may ask you to rewrite it instead of the attorney.