Downto0

Compelling arbitration nixes court action for both parties, right?

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I filed a lawsuit against a cell phone provider.  They compelled arbitration.  We were in the middle of settlement negotiations and both parties asked for an extention of time and the court granted that extention.

 

Negotiations fell apart.  Cell phone company file a motion to enforce their version of the agreement.  I filed a motion to enforce original settlement amount.  Court denied both motions.  Cell phone provider then file a motion to rule on its mtc.

 

My question is, did not the cell phone company use the same court system which they want to deprive from me?  It's my understanding that one who wishes to compel arbitration must do exactly that, compel arbitration, and cannot file other non-arbitration motions else they themselves have chosen to use the court system. That's why compellers of arbitration file a mtc instead of an Answer or a mtd because some courts will see that as acceptance of the court system and may deny a mtc.

 

My case is a little different in that they did file a mtc but later used the court system to enforce a settlement - something which had nothing to do with arbitration.  Then they went back to compelling arbitration.

 

Can they have it both ways?

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You file an opposition to their mtc and make the exact case to the court that you gave us as to why their mtc should be denied.  Just as any CA would do if we did not MTC right off the bat, you say they waited to long, filed other procedures with the court and therefore waived their right to arb by choosing to follow the matter in court.

 

It's an uphill battle, but it's really the only play you have, so might as well go for it.  And yes, they want it both ways.  They want to use court when it benefits them, but when they see a losing case, they want to move it to arb where their buddy the arbitrator will help them out and rule in their favor.

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@Downto0

 

Negotiations fell apart.  Cell phone company file a motion to enforce their version of the agreement.  I filed a motion to enforce original settlement amount.  Court denied both motions.  Cell phone provider then file a motion to rule on its mtc.

 

 

From the above, I gather they had already filed a MTC arbitration before they filed the motion to enforce the settlement?    It would seem they were trying to avoid both litigation and arbitration by trying to get the settlement enforced. 

 

"A party acts inconsistently with its right to arbitrate if the party 'substantially invokes the litigation machinery before asserting its arbitration right.'"  Lewallen v. Green Tree Servicing, L.L.C., 487 F.3d 1085, 1090 (8th Cir. 2007)(quoting  Ritzel Commc'ns, Inc. v. Mid-Am. Cellular Tel. Co., 989 F.2d 966, 969 (8th Cir. 1993)).

 

If they filed the MTC arbitration first, I'm not sure filing a motion to enforce a settlement would be considered substantially invoking the litigation machinery.

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They want to use court when it benefits them, but when they see a losing case, they want to move it to arb where their buddy the arbitrator will help them out and rule in their favor.

 

 

 

That's what happened in our case.  The judge would not enforce their settlement so they went back to a ruling on their mtc arbitration.  It's an uphill battle for sure.  

 

I've been reading what cases I can find and most of them compel arbitration even if the creditor uses the court system a little bit.  This is especially true if the creditor has already, as in our case, filed their mtc in lieu of an Answer.  

 

If they filed the MTC arbitration first, I'm not sure filing a motion to enforce a settlement would be considered substantially invoking the litigation machinery.

 

 

I agree.  I'm still researching cases and if I find anything worthwhile I'll post it.

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