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Already elected arbitration with Midland; they just sent discovery requests!


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Account stated claim in California, for less than $1,300, with a clear Arbitration clause allowing for JAMS. An election for JAMS was sent to Midland, and an affirmative defense of arb was added to the answer.

Midland ignored this election and just sent discovery requests. How do I proceed with the motion to compel (already scheduled with the court) and not get into trouble for not responding to discovery when the motion is not set to be heard for nearly two months after the discovery responses are due?

I was thinking of answering each request with 'there exists an election of arb and therefore no response will be given until such time as the motion to compel has been decided by the judge'.

Thoughts?

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You might send a meet and confer letter to Midland's attorney saying.

 

Defendant OBJECTS to Plaintiff's request for the production of documents as the arbitration clause has been exercised. A mutual agreement on the scope and extent of discovery per the arbitration clause and per the arbitration forum rules has not been reached. Defendant will not be answering discovery or sending discovery until such an agreement is reached between the parties under the contract of arbitration.

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It appears some defendants in CA file a petition for stay of proceedings with their petition to compel arbitration:

 

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES, WEST DISTRICT

--

PETITION TO COMPEL ARBITRATION
AND REQUEST FOR STAY OF
PROCEEDINGS; MEMORANDUM OF
POINTS AND AUTHORITIES IN
SUPPORT THEREOF; DECLARATION
OF WBL IN SUPPORT THEREOF

http://www.jdsupra.com/legalnews/petition-to-compel-arbitration-and-reque-98675/

 

Motion vs. Petition? http://www.creditinfocenter.com/community/topic/317580-motion-vs-petition-california/

 

 

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I don't know Cali laws that well but what about an ex parte motion for shortening time? If judge grants that it would allow your arb motion to be heard in like 21 days or something, what ever Cali rules are.

The date I got was the EARLIEST date for any motion. I suppose being in the largest county in the lower 48 has some downfalls.

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A motion to compel arbitration is challenge of the courts jurisdiction to hear the case. Until it is decided I wouldn't participate in any discovery.

Reply to discover with a simple objection. I object to any discovery at this time. The arbitration forum will determine the scope of discover for this claim.

There is no reason the court should decline the arbitration stay.

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A motion to compel arbitration is challenge of the courts jurisdiction to hear the case. Until it is decided I wouldn't participate in any discovery.

Reply to discover with a simple objection. I object to any discovery at this time. The arbitration forum will determine the scope of discover for this claim.

There is no reason the court should decline the arbitration stay.

There is no stay in place at this time. Does this change what actions I would take/avoid?

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Hot,

 

I believe and agree that you will need to answer the discovery with the same objection or somthing similar as Iheart has stated.  You have a Motion hearing 60 days out.  If you complete the answers with some type of objection as mentioned above, and wait to send the last week of the 30 day period.  The otherside will recieve in some cases they will need to do a Meet and Confer about your responses.  Then they would would have to schedule a MTC futher repsonses.

 

They will be fighting the same issue in getting their MTC further response, getting a hearing date, which you faced with your MTC Arbitration hearing date 60-90 days out.

 

Frankly, with the exception to Request for Admissions, which in theory could be deemed admitted, (By Hearing) you might just choose not to answer.  Myself, I would answer with the objection for all, then I am covered if the Arb doesn't fiy for some reason.  I at least had answers and can go back and supplement....

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The answer included arb election and I have the signed green card for them receiving the first election prior to the answer being filed.

 

What is important at this point is the Motion to Compel Arbitration. That is what allows you to object to Discovery request, not just an election.

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Account stated claim in California, for less than $1,300, with a clear Arbitration clause allowing for JAMS. An election for JAMS was sent to Midland, and an affirmative defense of arb was added to the answer.

Midland ignored this election and just sent discovery requests. How do I proceed with the motion to compel (already scheduled with the court) and not get into trouble for not responding to discovery when the motion is not set to be heard for nearly two months after the discovery responses are due?

I was thinking of answering each request with 'there exists an election of arb and therefore no response will be given until such time as the motion to compel has been decided by the judge'.

Thoughts?

I originally read the post to state that an MTC Arbitration was filed with the court and a hearing is scheduled. If so the other shoe to drop is the request to stay proceeding or similar.

 

If no MTC Arbitration has been filed that needs to be done. Affirmative defense of arb doesn't get it done.

 

I'd want to take a seriously look into whether it makes sense to file something like an expedited request to stay the proceeding (and MTC Arbitration if not previously filed ). The court is probably under the assumption that this litigation currently has a green light to proceed.

 

If it was me and the party opposing me compelled arbitration but did not stay the court, not being a fan of arbitration, I would happily pursue discovery, likely to their detriment.

 

Continued participation in litigation and/or delay in compelling arbitration can constitute waiver of arbitration. One cannot test the waters before taking a swim. Assuming I wanted to move the dispute to an arbitration forum, I would not risk it.

 

If JAMS is not the only forum allowed it is possible that Midland could file in a lower cost forum, assuming the MTC Arbitration is granted. Other than having a claim against Midland and filing it in JAMS now I am not sure how to prevent them from selecting/filing in a lower cost forum than JAMS. The court may or may not attempt to direct Midland to JAMS based on the defendant's request.

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The motion has been scheduled, but won't be filed until tomorrow. Holiday hours prevented filing earlier.

JAMS is not the only forum listed, however, the contract clearly states that the person requesting arbitration is the person who chooses the forum. They have been notifed that I have elected it, and have chosen JAMS as the forum.

This is most certainly not a testing the waters situation nor is it one being haphazardly thrown about in an effort to get midland to hopefully dismiss the case. If going into arb is the way it plays out, I'm ready to go. I'm only concerned about losing my ability to do so. I already have the formal JAMS demand filled out and ready to go. The contract also states that the plaintiff will be the one who pays for all the fees. I have requested they pay it, but of course then I got discovery. I am all too familiar with the other side dragging their foot to pay for JAMS in an effort to not go. I'm hoping this isn't a repeat of that.

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It's the way my court does it. You are required to schedule when the motion will be held and they document the type of motion it is. I've had to call once to check on something and the clerk pulled it up in the calendar and even verified the type of motion it was. How would you know what hearing time and date you put on the notice of motion page if you don't schedule it ahead of time?

 

I assumed this was the norm. Maybe my assumption caused confusion to those replying and if so, I sincerely apologize. I honestly didn't even think it could be any other way! How do they handle it at your court?

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