DowhatIcan

Not a Lawyer, not a loser

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Most likely a dismissal without prejudice if they dismiss on their own without discussing it with you

If you filed an answer, they cannot dismiss without your permission or filing a motion to get permission from the court.  If they file a motion, I would object if they ask for dismisal w/o prejudice.

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Ok. Thank you!!! What would the 1099 be for? If I wanted my court costs?

A 1099 is to report miscellaneous income.  They 'forgive' the debt and then you have to claim that amount as income on your tax return and pay taxes on it.

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On 11/1/2017 at 10:18 AM, DowhatIcan said:

Thank you Harry!!! 

Can't express enough my gratitude to you & all the others in this forum. 

We appreciate your hard work and persistence.  Not everyone who comes here seeking advice is willing to do the work and/or persist.

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So it's been over 30 days and as I presumed Midland didn't commence arbitration as was ordered by the judge with the MTC.  (Plaintiff to commence arbitration proceedings with 30 days of the court granting the motion)

The case is stayed for another 60 days, but I believe I would file a Motion to Dismiss with Prejudice at this point, correct?

Is there any special verbiage I should be adding to the motion other than Plaintiff not commencing arbitration as was ordered?

Thanks!!

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Did you try to commence arbitration and force the issue on Midland to follow you in? If you did not start it, Midland can simply say to the judge that you really were not serious about arbitration. If you did start the process, the let it go through and let the court time run out, then you file the motion for sanctions.

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Since your order from the court says that Plaintiff is to commence the arbitration, then what I would do is file the arbitration claim myself (without sending any money in yet, if required).  I would file a motion for sanctions with the court and show that Plaintiff did not follow the previous order of the court to commence the arbitration within 30 days.  I would show the proof that I filed because Plaintiff failed to do so, but I would also ask in my motion that if Plaintiff refuses to follow the court's order to arbitrate, then I would ask for a dismissal with prejudice and my costs.

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5 hours ago, DowhatIcan said:

So they filed a motion for reconsideration of the MTC. I plan on responding to this with my previous response to their initial response to the motion. 

 

If you don't mind sharing, under what grounds did plaintiff bring its motion for reconsideration? 

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I would respond with a combination Opposition to the MTR AND Defendant's Motion for Sanctions.

I would also check the court rules, as @Harry Seaward said they must have a proper reason to file the MTR, but also check the time allowed to do so.  This is more than 60 days after your MTC was granted AND beyond the 30 days given for them to file the arbitration.

This is also another reason I would have filed the JAMS case myself back when I first suggested you do so.  Showing the court YOU took the lead and followed the court orders would make this even more in your favor (not that it shouldn't go in your favor already, but the more ammo the better).

I would not just simply reiterate your previous response to their MTC opposition.  You need to tailor your response to what they said in this motion to reconsider.  Refute each point they make and use court rules & case law where you can to bolster your points.   I would also ask for sanctions for Midland's failure to follow the previous court order. I would ask, as part of the sanctions, for a dismissal with prejudice and for my costs to be awarded.

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I never filed the original reply to their opposition to MTC as when I went in to file the response the clerk told me that the judge had already granted the MTC.

The verbiage in the motion for reconsideration is exactly as it was when they submitted it originally. They filed it after the judge had already approved the order. After receiving their opposition the court sent a nature of proceedings that stated the court already approved the order and still does so. Plaintiff created the contract and the court is give common meaning to the terms outlined in the contract. The contract does no provide for the relief expected of the Plaintiffs.

Their motion starts with:

"You have a right to file a written response to this motion within ten (10) days from the date this motion was served. Your response must be filed with the court, and copies of your response must be served on the other parties as provided by Rule 120 of the Justice Court Rules of Civil Procedure. The court may treat your failure to respond to the motion as your consent that the motion be granted."

Plaintiff, through undersigned counsel, respectfully requests this Court to reconsider its order granting Defendant's Motion to Compel Individual Arbitration. This motion is supported by the record and the attached memorandum of points and authorities, incorporated herein.

Memorandum of Points and Authorities:

Plaintiff requests the Court to reconsider its order granting Defendant's motion to compel arbitration. Plaintiff did file an opposition to Defendants motion on or about XXXXX.

The court attempts to enforce a contract according to the parties' intent and applies a standard of reasonableness to the contract language. State ex rel Goddard v. R.J. Reynolds Tobacco Company, 206 Ariz. 117,75 P. 3d 1075 (App. 2003). The actual purpose of arbitration would be undercut where a party is permitted to claim a right to private arbitration when the costs of arbitration grossly exceed the amount of pursuing the matter in justice court.

The Court of Appeals has considered the concept of economic waste as it relates to judicial proceedings. In Cordova v. City of Tucson, 489 P.2d 727, 15 Ariz.App. 469 (Ariz. App., 1971), the Defendants appealed the Court's Order granting the Plaintiff City of Tucson's right to condemn property, and order that the only issue left to be tried is the amount of just compensation to be paid to Defendants. The Court of Appeals dismissed the appeal as premature, finding that the subject order was not a final judgment because there can be no judgment of condemnation until damages have been assessed. However, the Court of Appeals did note that judicial relief may be available at this stage of the proceedings to avoid economic waste. (Although no rights of appeal exist, judicial intervention by way of special action may be available to avoid the serious economic waste which would result from a long drawn-out trial when the condemning authority has no right to condemn the land in question.) Cordova v. City of Tucson, 489 P.2d 727, 729, 15 Ariz.App. 469 (Ariz. App., 1971) 

WHEREFORE Plaintiff requests te Motion to Compel Arbitration be DENIED.

Dated: XXXXXXXX

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Boy that is a real good attempt at throwing garbage at the wall by midland. :D

I would start off my opposition with something like this (a very rough draft):

On XXX date, Defendant filed his Motion to Compel Arbitration.

On XXXX Date, this Court granted Defendant's motion to compel arbitration in accordance with the underlying contract and ordered Plaintiff to file the case in JAMS arbitration within 30 days. 

On XXXX Date, the Plaintiff filed an opposition to the Motion to Compel Arbitration.

On XXX Date, this Court, upon recipt of Plaintiff's opposition, reiterated and affirmed the granting of Denfendant's Motion to Compel Arbitration.

Although the Honorable Court has twice stated that Arbitration is to be ordred for this case, Plaintiff has failed to act in accordance with the Court's order and has refused to file this case in JAMS arbitration.   Instead, Plaintiff is yet again wasting the Court's and Defendant's time by making a second attempt at reversing the Court's previous Order to arbitrate this matter.

 

I would then refute their case law cites.  #1 - as to cost of arbitration, there is case law that has been posted before that says cost is not a factor in determining arbitration.  I will have to dig it up, or maybe someone will post it in the meantime.    I would point out how irrelevant their second case is, as that case did not have a contract that contained private arbitration.  I would point out that Plaintiff is using a unilaterally written contract of adhesion.  That this contract was written with no other party's input, and if cost was an issue, they did not have to insert it into the contract or purchase a contract with such a clause.  I would also point out that Plaintiff can not now ignore or remove parts of their contract that they deem inconvenient to them at the present time.  And if that if Plaintiff is now allowed to proceed as such, then Defendant would ask for the opportunity to carve out the portions of the contract that he now disagrees with as well. (HINT: it would be that part that says you have to pay back anything on the account).

I would then end my opposition by reiterating that Plaintiff has failed to abide by the Court's previous two rulings to arbitrate this matter and as such, Defendant motions this court to sanction plaintiff. It is clear that plaintiff has no intention of following the honorable Court's order and to complete this case through arbitration per their own contract. Therefore, Defendant respectfully requests that sanctions include dismissal of this action with prejudice and for an award of defendant's costs.

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So your last paragraph says to request sanctions and dismissal. I was unaware that I could request this as part of a response. 

As far as my costs, do I need to submit a statement of costs with the reply?

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Certainly you can make a request to the court as part of your response as they plaintiff would be allowed to respond to that too in their reply to your response to their motion.

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13 hours ago, DowhatIcan said:

So your last paragraph says to request sanctions and dismissal. I was unaware that I could request this as part of a response. 

As far as my costs, do I need to submit a statement of costs with the reply?

You can request anything you want of the court, but it is best only to do so with good reason and precedent.  If you search case law from your court/county/sate you will likely find many instances where a motion for sanctions is requested for failure to follow a court's order.  Ultimately what those sanctions are is completely up to the judge, but it never hurts to make a suggestion that those sanctions include dismissal with prejudice.  Especially as Midland is making it very clear they do not intend to arbitrate this case and are stalling by asking the court to rule for a 3rd time on this arbitration matter (I would really pump up how absurd and wasteful this is to re-hash the same thing a 3rd time after the court's two previous rulings on this matter).

You do not have to submit a list of costs with your motion.  If the judge grants your costs, there are local court rules regarding how and when you should submit that.

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So as I get ready to file the opposition to the motion I receive in the mail that the court denied their motion stating the contract does not provide for the relief their seeking and it’s not in the courts ability to rewrite the provision to favor one side or the other. 

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5 hours ago, DowhatIcan said:

So as I get ready to file the opposition to the motion I receive in the mail that the court denied their motion stating the contract does not provide for the relief their seeking and it’s not in the courts ability to rewrite the provision to favor one side or the other. 

So you won.  Let's see if they dismiss. 

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I'd still file a motion for sanctions tomorrow.  They have not followed the court order and this needs to be brought to the court's attention for remedy.  At this point, I would not sit back and wait any longer. They are in violation of the court order and I would be taking actions against them to either force their hand to settle with you or to get the court to dismiss.

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I finally have a day off to work on filing for dismissal/sanctions. I've researched case law and am coming up empty regarding sanctions for not following a court order. Could someone help with this? I did see that it appears sanctions would be related to discovery, is this correct?

Thank you in advance and I know this needs to be done ASAP, but have been working A LOT recently.

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3 hours ago, DowhatIcan said:

I finally have a day off to work on filing for dismissal/sanctions. I've researched case law and am coming up empty regarding sanctions for not following a court order. Could someone help with this? I did see that it appears sanctions would be related to discovery, is this correct?

Thank you in advance and I know this needs to be done ASAP, but have been working A LOT recently.

You might quote this statute,  A.R.S. 12-864  @Harry Seaward  What say you about this?

https://law.justia.com/codes/arizona/2013/title-12/section-12-864/

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Arizona Justice Court Rule 144(b):

d. Dismissal in other circumstances. Except as provided in sections (b), (c), and (e), a lawsuit or claim shall be dismissed only upon motion and by court order, and only on terms and conditions that the court determines are fair and proper. Dismissal of a complaint will not result in dismissal of a counterclaim unless agreed to by the parties. [ARCP 41(a)-(b)]

ARCP 41(b)

(b) Involuntary Dismissal; Effect. If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under this Rule 41(b) and any dismissal not under this rule--except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19--operates as an adjudication on the merits.

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11 hours ago, BV80 said:
 

Arizona Justice Court Rule 144(b):

d. Dismissal in other circumstances. Except as provided in sections (b), (c), and (e), a lawsuit or claim shall be dismissed only upon motion and by court order, and only on terms and conditions that the court determines are fair and proper. Dismissal of a complaint will not result in dismissal of a counterclaim unless agreed to by the parties. [ARCP 41(a)-(b)]

ARCP 41(b)

(b) Involuntary Dismissal; Effect. If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under this Rule 41(b) and any dismissal not under this rule--except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19--operates as an adjudication on the merits.

Perfect.  I would cite this case and ask for a dismissal for failure to comply with the granted MTC.

I would be sure to ask for my costs.  I would make a point to remind the court that Plaintiff filed frivolous motions and forced the court to reiterate their order to arbitrate 3 different times, yet plaintiff still has taken no action to arbitrate this matter in accordance with the court's order.

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