MTD/MTC Denied in AZ Justice Court

[Thomas2]

I am being sued by a JDB on behalf of a Synchrony account for less than $1000.00.  I received the summons about two months ago.  After researching here and elsewhere, I filed a MTD or in the alternative MTC arbitration and stay proceedings.  Before filing that, I initiated arbitration per the CMA with AAA.  I included the required notarized affidavit for the CMA, AAA filing docs, and the CMRRR receipts.  I based the arguments on A.R.S. Rule 12(b)1, A.R.S. 12-1501, A.R.S. 12-1502(A) and FAA, 9 U.S.C. 1 included the relevant case law.   

Several weeks later AAA accepted and opened a case sending an invoice to the JDB.  The lawyer for the JDB contacted me about a settlement.  I replied a mutual walk-away dismissal with prejudice.  I have not yet heard back from them on this.  AAA requires payment from the JDB by end of next week for their balance due which is almost  5 times the amount of the original debt.  

The judge scheduled court ordered meditation which I knew meant they were denying the MTD/MTC.  Sure enough I checked the docket to see that it was indeed denied.  

I see two different approaches I could take looking at the alternatives and doing the research.  I am well within the time frame for either, but I will need to decide, complete the work over the weekend, and file it next week with the court in order to meet the deadlines.  

The first is to do an Interlocutory Appeal.  I have seen that this is possible reading threads here for Arizona.  How do I go about doing this?  Do I go through the clerk for this Court?  Is there a form or do I need to do a legal pleading?  Does anyone know the costs associated with this?  

The second option is to file an Answer and a Motion to Compel arbitration with the updated information from AAA now that they have accepted the case.  If for any reason, the MTC is denied yet again, I could then file an Interlocutory Appeal.  One question that arose on this is whether filing an Answer and MTC would suggest that I accept the court's jurisdiction over this matter. 

I could use some arguments for or against the two approaches as well as specifics on how to proceed especially from those in AZ who know the courts and have been through this kind of thing previously.  I am also weighing whether to contact the lawyer since I have not heard back from them.   

[Pericles]

3 hours ago, thomasp said:

I am also weighing whether to contact the lawyer since I have not heard back from them.

If you can secure agreement with the Plaintiff to file a stipulated motion to dismiss before the 14 day window to file an appeal expires, this would be the easiest path by far.  Any communication with the Plaintiff should have deadlines for them to respond.  If they are aware that the motion has been denied they might be unlikely to agree, but they might be more receptive later after a notice of appeal is filed.

 

3 hours ago, thomasp said:

The second option is to file an Answer and a Motion to Compel arbitration with the updated information from AAA now that they have accepted the case.  If for any reason, the MTC is denied yet again, I could then file an Interlocutory Appeal.

One risk of this path is that if your renewed motion to compel is not heard but rejected as moot then the appeal deadline is computed from the date of the order denyng the first motion.

If you want to get the information about the AAA accepting jurisdiction into the record, you could file a motion for reconsideration pursuant to ARCP 59(a)(1)(H) [JCRCP 138(a)].  A motion for reconsideration under Rule 59 does not extend the deadline to file a notice of appeal, so you'd still have to file a notice of appeal anyway.

You could try an answer and another motion to compel and hope that the court will rule on the [renewed] motion to compel and if it is denied again that the appeals court will accept jurisdiction on an interlocutory basis.  Just be aware that it could go either way.

 

3 hours ago, thomasp said:

I filed a MTD or in the alternative MTC arbitration and stay proceedings.

A motion to dismiss is not immediately appealable pursuant to  A.R.S. § 12-2101.01(A)(1).  I understand that you sought to compel arbitration in the alternative, but I've seen the appeals court refuse jurisdiction on an interlocutory appeal because an order denying a motion to dismiss is not a final order - even though alternative relief was also sought and was immediately appealable.

The appeals court could accept jurisdiction based on the alternative relief sought, but just be aware that it could go either way.

 

3 hours ago, thomasp said:

How do I go about doing this?  Do I go through the clerk for this Court?  Is there a form or do I need to do a legal pleading?  Does anyone know the costs associated with this?

This guide; Appealing a Civil Case to the Superior Court is a decade old but the information is generally still valid.  Step 1 is the notice of appeal, which is filed with the justice court.  The notice of appeal is a relatively simple document which doesn't require much work. Most of the work comes later in the preparation of the memorandum.

The filing costs are something like 200-300, not including any cost bond - unless you're eligible for waiver.  There are separate filing fees in the lower court and the superior court, as outlined in the pdf.  When you file your appeal memorandum, be sure to ask for your costs.

[Thomas2]

1 hour ago, Pericles said:

If you can secure agreement with the Plaintiff to file a stipulated motion to dismiss before the 14 day window to file an appeal expires, this would be the easiest path by far.  Any communication with the Plaintiff should have deadlines for them to respond.  If they are aware that the motion has been denied they might be unlikely to agree, but they might be more receptive later after a notice of appeal is filed.

Yes, this would be ideal.  I gave them a seven day deadline which has now passed.  That is true, however, the AAA is still active.  Perhaps there is leverage there.  

1 hour ago, Pericles said:

One risk of this path is that if your renewed motion to compel is not heard but rejected as moot then the appeal deadline is computed from the date of the order denyng the first motion.

If you want to get the information about the AAA accepting jurisdiction into the record, you could file a motion for reconsideration pursuant to ARCP 59(a)(1)(H) [JCRCP 138(a)].  A motion for reconsideration under Rule 59 does not extend the deadline to file a notice of appeal, so you'd still have to file a notice of appeal anyway.

You could try an answer and another motion to compel and hope that the court will rule on the [renewed] motion to compel and if it is denied again that the appeals court will accept jurisdiction on an interlocutory basis.  Just be aware that it could go either way.

From what I have read, arbitration is one such area that Interlocutory Appeals are accepted even without a final judgment.  Therefore, yes, it is a risk, but if the judge denies the Answer & MTC arbitration as moot, why can I not appeal the ruling that it is moot or the possible future denied MTC submitted with Anwer?  

I do not think ARCP 59 will cover me in this case as that is only after a judgment.  There has been no judgment here, merely the denial of a MTD/MTC.  

The problem in Arizona is that judges and courts are inconsistent and can go in a myriad of ways.  I had this judge one time before and they denied my MTC that I filed with an Answer.  I was prepared to file an appeal then but the JDB and I worked out a settlement the week right after the denial.  

1 hour ago, Pericles said:

A motion to dismiss is not immediately appealable pursuant to  A.R.S. § 12-2101.01(A)(1).  I understand that you sought to compel arbitration in the alternative, but I've seen the appeals court refuse jurisdiction on an interlocutory appeal because an order denying a motion to dismiss is not a final order - even though alternative relief was also sought and was immediately appealable.

The appeals court could accept jurisdiction based on the alternative relief sought, but just be aware that it could go either way.

Yes, again, it is a risk either way.  However, I need to think a step or two ahead.  Are they more likely to deny jurisdiction over the MTD/MTC denial, the possibly denied MTC arbitration sent in with an Answer, or the other possibility of a moot ruling on the MTC arbitration sent in with an Answer.  I am hoping to get some folks who have experienced this personally to weigh in so I have a little bit more assurance that just 'it is a risk' to go on.  

Thanks for the link.  That gave me the correct wording to find the Appeals packet for Maricopa County.    

2 hours ago, Pericles said:

This guide; Appealing a Civil Case to the Superior Court is a decade old but the information is generally still valid.  Step 1 is the notice of appeal, which is filed with the justice court.  The notice of appeal is a relatively simple document which doesn't require much work. Most of the work comes later in the preparation of the memorandum.

The filing costs are something like 200-300, not including any cost bond - unless you're eligible for waiver.  There are separate filing fees in the lower court and the superior court, as outlined in the pdf.  When you file your appeal memorandum, be sure to ask for your costs.

 

[Harry Seaward]

2 minutes ago, thomasp said:

From what I have read, arbitration is one such area that Interlocutory Appeals are accepted even without a final judgment.

This is true, but the problem is you filed a motion to dismiss, which is not immediately appealable.

Having said that, I would appeal anyway.  I have been through the process.  The cost ranges, but your notice of appeal is around $75.  There is a cost bond you may be required to pay, but I filed a notice of inability to pay the bond and Cavalry never responded, so the court just granted my motion to waive the bond.  Once the Superior Court accepts your appeal, there is another $350ish fee there.  You can ask for a waiver or deferral of this fee as well.  The clerk can issue a deferral on the spot as long as you agree to pay the full amount in 4 installments, if you have no dependents.  If you have even one dependent, you the clerk can spread the balance over 10 payments.  If you want more than 4 (or 10), or if you want a full on waiver of the fee, you have to fill out a financial statement and see a judge.

There is also a supersedeas bond that will come up in the Justice Court, but this is only to prevent a judgment creditor from attempting collection activities.  Since there is no judgment against you yet, the supersedeas bond is irrelevant.

I'll be happy to walk you through the process.

[Thomas2]

9 minutes ago, Harry Seaward said:

 

This is true, but the problem is you filed a motion to dismiss, which is not immediately appealable.

Having said that, I would appeal anyway.  I have been through the process.  The cost ranges, but your notice of appeal is around $75.  There is a cost bond you may be required to pay, but I filed a notice of inability to pay the bond and Cavalry never responded, so the court just granted my motion to waive the bond.  Once the Superior Court accepts your appeal, there is another $350ish fee there.  You can ask for a waiver or deferral of this fee as well.  The clerk can issue a deferral on the spot as long as you agree to pay the full amount in 4 installments, if you have no dependents.  If you have even one dependent, you the clerk can spread the balance over 10 payments.  If you want more than 4 (or 10), or if you want a full on waiver of the fee, you have to fill out a financial statement and see a judge.

There is also a supersedeas bond that will come up in the Justice Court, but this is only to prevent a judgment creditor from attempting collection activities.  Since there is no judgment against you yet, the supersedeas bond is irrelevant.

I'll be happy to walk you through the process.

Harry, that is a gracious offer that I will accept.  I lean towards filing the appeal anyway.  It seems like the most logical choice.  Would it be helpful for others for you to do so here or in PM's?  Thank you. 

Would you recommend contacting the lawyer about the settlement as I proceed with the appeal?  And what do I do if the JDB does not pay the AAA filing?  Will AAA close the case or give it a time period?  

[Goody_Ouchless]

For clarity - did plaintiff ever present and argument against arbitration? Was there any comment from the court as to why arbitration was denied? What exactly did the online denial say - did it specifically mention arbitration? I ask because the AZ JP "mediation" thing is all automated, so if that's all that appears, it may not mean anything.

If the baby (arbitration) was thrown out with the bathwater (motion to dismiss), would it be appropriate to simply file a stand-alone MTC, as one would do after answering with a general denial? It's like this case has moved out of the station, yet. If denied, would that motion not provided something more conducive to appeal?

[Thomas2]

To answer your questions...

No, Plaintiff never responded to the MTD/MTC at all.  

No, the court added mediation first and then the ruling on the Motion to Dismiss as Denied.  The document from the court simply has a check mark in Denied for the motion.  No comment was given.  Same on the docket.  No mention of the MTC only the MTD.  Yes, things are automated especially with this court as I learned previously.  

To do a stand-alone MTC I think is impossible without doing an Answer.  If you start with a MTD (in my case in the alternative stay and MTC), if denied, appeal or file Answer - 14 days for appeal and 20 days for Answer.  I could file the MTC then but that I already brought up above.  

I wonder the same thing.  I am appealing a specific motion so if it was denied and sent back to the Justice Court to resume with an Answer and MTC arbitration again, if that was denied, I don't know why I couldn't file another appeal on that Motion but the costs start adding up.  As I said, the debt in question is less than $1000.00.  I have already paid court filing fees plus the $200.00 for AAA initiation.  An appeal could jack it up very fast. 

[Pericles]

1 hour ago, thomasp said:

That is true, however, the AAA is still active.  Perhaps there is leverage there.

Maybe, if you have strong claims pending before the AAA.  But without a court order, they can just ignore the entire AAA process without any risk of penalty.

 

1 hour ago, thomasp said:

From what I have read, arbitration is one such area that Interlocutory Appeals are accepted even without a final judgment.

An order denying an application to compel arbitration made under section 12-1502 or 12-3007 is substantively appealable.

When such relief is sought in the alternative as part of a motion to dismiss, arizona appeals courts have declined interlocutory jurisdiction in the past.  [edit to add cite]

As others have said, you should appeal anyway.  The likelihood that the appeals court would accept jurisdiction of your appeal would've been near 100%, had you filed a standalone motion to compel.  It is less in your case, that was my point.  I thought it might be useful for you to know this before you filed your notice of appeal.

 

1 hour ago, thomasp said:

I do not think ARCP 59 will cover me in this case as that is only after a judgment.  There has been no judgment here, merely the denial of a MTD/MTC.  

You could use rule 60 [JCRCP 141], but rule 60 is just for mistakes - even 60(c); mistake, inadvertence, surprise, excusable neglect, et. cetera.

If you read over the the series of posts in thread linked in my prior post, you will see that precedent states that only rule 59 covers errors of law.

It can be confusing, as the rules are defined;
Rule 59, [for a new trial or to alter or amend a judgment]
Rule 60, [for relief from a judgment or order]

But the important part is to seek relief under a rule not for mistake, but for error of law.

It is true that a order denying a motion to compel arbitration is not a final judgment of the case, but in a sense it is a final 'judgment' of the 'trial' in the matter of referring the Plaintiff's claims to jurisdiction before the AAA.  Numerous arizona precedent states that a motion to compel arbitration is analogous to a motion for summary judgment.  Rule 59 allows relief to alter or amend that 'judgment'.

All of the above is mostly irrelevant.  The primary purpose of the motion for reconsideration would just be to get more facts into the record for the appeal.

2 hours ago, thomasp said:

I am hoping to get some folks who have experienced this personally to weigh in so I have a little bit more assurance than just 'it is a risk' to go on.  

Okay, I will step away and let all of those folks follow up.

[Thomas2]

3 minutes ago, Pericles said:

Maybe, if you have strong claims pending before the AAA.  But without a court order, they can just ignore the entire AAA process without any risk of penalty.

 

An order denying an application to compel arbitration made under section 12-1502 or 12-3007 is substantively appealable.

When such relief is sought in the alternative as part of a motion to dismiss, arizona appeals courts have declined interlocutory jurisdiction in the past.  [edit to add cite]

As others have said, you should appeal anyway.  The likelihood that the appeals court would accept jurisdiction of your appeal would've been near 100%, had you filed a standalone motion to compel.  It is less in your case, that was my point.  I thought it might be useful for you to know this before you filed your notice of appeal.

 

You could use rule 60 [JCRCP 141], but rule 60 is just for mistakes - even 60(c); mistake, inadvertence, surprise, excusable neglect, et. cetera.

If you read over the the series of posts in thread linked in my prior post, you will see that precedent states that only rule 59 covers errors of law.

It can be confusing, as the rules are defined;
Rule 59, [for a new trial or to alter or amend a judgment]
Rule 60, [for relief from a judgment or order]

But the important part is to seek relief under a rule not for mistake, but for error of law.

It is true that a order denying a motion to compel arbitration is not a final judgment of the case, but in a sense it is a final 'judgment' of the 'trial' in the matter of referring the Plaintiff's claims to jurisdiction before the AAA.  Numerous arizona precedent states that a motion to compel arbitration is analogous to a motion for summary judgment.  Rule 59 allows relief to alter or amend that 'judgment'.

All of the above is mostly irrelevant.  The primary purpose of the motion for reconsideration would just be to get more facts into the record for the appeal.

Okay, I will step away and let all of those folks follow up.

This is all excellent information and will be helpful in the future.  I know there will be other suits in this court.  Given what you are saying about the appeal, if the Superior court is that likely to deny, why then wouldn't an Answer and stand alone Motion to Compel not be the route to take instead of the appeal?  If it bound to fail, I am out a lot of money and the case would recommence with me having to Answer and file another MTC then anyway.    Then if that one is also denied, it would be 100% appealable as you state.    

Getting input from locals like Harry is important but anything else you can add will certainly help and would be of value to me.  Thanks. 

[Pericles]

Actually, I've lived in Arizona for the past four years.

[Pericles]

21 minutes ago, thomasp said:

why then wouldn't an Answer and stand alone Motion to Compel not be the route to take instead of the appeal? 

That is probably what I would do if I were you.

The only reason that might be a problem is if the justice court considers the denial of your first motion as the final adjudication of the arbitration issue.

If you raise arbitration again in a new motion, the justice court could decline to hear the new motion and reject the motion as moot (already decided by the prior order denying the prior motion).

By then the time to appeal the first order would have expired.

All of this is unlikely.  But if it happens, you can't time travel and appeal the first order.

[Thomas2]

24 minutes ago, Pericles said:

Actually, I've lived in Arizona for the past four years while going to school.  I've also interned for four spring terms with legal aid in Arizona.

But, my wait-listed transfer application to a school in MA was accepted a couple of months ago, so I'm leaving AZ this month.

Got you.  I appreciate the input given you have the experience here. 

[Thomas2]

3 minutes ago, Pericles said:

That is probably what I would do if I were you.

The only reason that might be a problem is if the justice court considers the denial of your first motion as the final adjudication of the arbitration issue.

If you raise arbitration again in a new motion, the justice court could decline to hear the new motion and reject the motion as moot (already decided by the prior order denying the prior motion).

By then the time to appeal the first order would have expired.

All of this is unlikely.  But if it happens, you can't time travel and appeal the first order.

Can you appeal a rejection of a motion as moot?  Is that possible?  

If that were to occur, what would be the next steps I could take?  Going to trial is not what I want to do on this for sure.  

I lean towards the appeal and you make a strong argument for doing the Answer and MTC.  The appeal has the risk that since it was a MTD/MTC to be denied by the Superior Court.  The Answer/MTC has the risk that since the MTD/MTC was denied that the judge may rejection the MTC as moot.  So I have to decide which is the more likely outcome and just decide accordingly.  A MTC is, as you say, appealable practically 100% of the time.  How often do judges reject a MTC after the MTD as moot?  Sigh.

[Pericles]

I'm not sure which is more likely.  They are both unlikely.

Since this court has a history of denying arbitration, it's probably better to get the arbitration matter to the appeals court in the most direct route possible.

Your motion did include "an application to compel arbitration made under section 12-1502 or 12-3007", so a jurisdictional argument that A.R.S. § 12-2101.01(A)(1) should apply can be made.

You'll have to decide.  If the appeals court accepts jurisdiction, they will probably reverse and award your costs of appeal.  But if they decline jurisdiction, Plaintiff could get costs of appeal.

See what others in AZ say.  I tend to overthink, so take that into account as you read my posts.

[Thomas2]

16 minutes ago, Pericles said:

I'm not sure which is more likely.  They are both unlikely.

Since this court has a history of denying arbitration, it's probably better to get the arbitration matter to the appeals court in the most direct route possible.

Your motion did include "an application to compel arbitration made under section 12-1502 or 12-3007", so a jurisdictional argument that A.R.S. § 12-2101.01(A)(1) should apply can be made.

You'll have to decide.  If the appeals court accepts jurisdiction, they will probably reverse and award your costs of appeal.  But if they decline jurisdiction, Plaintiff could get costs of appeal.

See what others in AZ say.  I tend to overthink, so take that into account as you read my posts.

Yes, my Motion included a Motion to Dismiss according to Arizona Rules of Civil Procedure A.R.S. Rule 12(b)1, or in the alternative Motion to Compel Arbitration and stay these proceedings pending arbitration pursuant to A.R.S. 12-1501, A.R.S. 12-1502(A) and to the Federal Arbitration Act, 9 U.S.C. 1.

I am off to work and will check in later tonight for more input.  

[Harry Seaward]

1 hour ago, Pericles said:

The only reason that might be a problem is if the justice court considers the denial of your first motion as the final adjudication of the arbitration issue.

This is why i wouldn't do it. If you let the appellate court tell you the MTD is not a MTC, then you can go back to justice court with an answer and MTC.

[Pericles]

2 hours ago, Harry Seaward said:

This is why i wouldn't do it. If you let the appellate court tell you the MTD is not a MTC, then you can go back to justice court with an answer and MTC.

That is a great point!  And after further thought, I agree.  But if  the appellate court tells you that, they may also tell you, as the non-prevailing party in the appeal, that you have to pay plaintiff's appeal costs.  Though if that happens, those probably can be negotiated away later, given the direction that the case would be headed.

[Goody_Ouchless]

Don't lose sight of the fact that JP court for civil cases (actually, all cases from what I have seen) is very "relaxed." Would an answer and separate MTC really be ruled on based off of the initial denial - I wouldn't be surprised if judge never looked past MTD in his denial. 

As OP has alluded, we are taking about a debt for less than a grand that can probably be settled for a cash payment of 50 cents on the dollar. He's already into AAA for $200, now we're talking about the time and expense of an appeal?

Also, plaintiff doesn't seem really that engaged and probably won't put up much legal resistance for a case like this.

[Harry Seaward]

50 minutes ago, Goody_Ouchless said:

we are taking about a debt for less than a grand that can probably be settled for a cash payment of 50 cents on the dollar.

It's certainly worth exploring, but they also have a few bucks tied up and I would be surprised if they bargain at all on a debt this small that they have already sued on.

[Goody_Ouchless]

I guess it depends on plaintiff and lawyer, but we've seen several of these low-dollar cases (including in AZ) get settled for whatever the defendant can fork over out of his wallet. Plus, seeing as defendant has already brought up arbitration, they know they aren't dealing with a total novice.

I'd just go back to clerk, file a proper answer (general denial) and a separate MTC - perhaps explaining to clerk that you already filed an 'answer' (the MTD) that you realized was not what you had intended to submit. I can't see a JC judge going back to cross-reference the original (denied) submission and making things more difficult for OP.

 

[Harry Seaward]

The only filings that have rules allowing amendments are pleadings, which is basically a complaint and an answer. A MTD is technically not a pleading and I think trying to backpedal could end up in a scenario where the 14-day window closes on the MTC and there would then be no option to appeal the ruling on the MTC.

[Goody_Ouchless]

If there's no "answer," then aren't allegations deemed "admitted/uncontested?" Plaintiff should just move for Summary Judgement.

[Harry Seaward]

No. A MTD is a proper response to a complaint. It's just that there are no rules re: amending a motion, whereas there are rules for amending a "pleading".

[Thomas2]

10 hours ago, Harry Seaward said:

This is why i wouldn't do it. If you let the appellate court tell you the MTD is not a MTC, then you can go back to justice court with an answer and MTC.

Great.  That is a point I needed clarified so that I know I have a path forward even if the appeal is denied.  

[Thomas2]

11 hours ago, Goody_Ouchless said:

Don't lose sight of the fact that JP court for civil cases (actually, all cases from what I have seen) is very "relaxed." Would an answer and separate MTC really be ruled on based off of the initial denial - I wouldn't be surprised if judge never looked past MTD in his denial. 

As OP has alluded, we are taking about a debt for less than a grand that can probably be settled for a cash payment of 50 cents on the dollar. He's already into AAA for $200, now we're talking about the time and expense of an appeal?

Also, plaintiff doesn't seem really that engaged and probably won't put up much legal resistance for a case like this.

I avoid giving the particulars as I now that JDB's, OC's, and their legal firms monitor such forums.  

The lawyers are one of the worst from Tucson, so even though they have not been engaged thus far, what I have read is how nasty and bad they can be in a legal fight.  

I do think you are right about the judge just trying to get this case pushed through the mediation and be done with it.  I also agree that yes, I don't want to get too deep in costs when the amount in question is less than a grand.  I have to find the thread, but I was reading one case over the last few days here where a MTD was sent to appeal and not even the filing fee was required and the JDB made settlement overtures once the appeal was accepted.  I am looking at that leverage as a way to get this settled.

But again, I know it is all a risk particularly with courts that can be 'relaxed' as you say.