Arbirtration in Ohio; MTC vs. MTS

[Robby8900]

What if a motion to compel and a motion to stay proceeding pending arbitration conflict with each other if filed in the same motion. Example: Motion to compel or in the alternate stay the proceedings.

[Goody_Ouchless]

How would they conflict? Motion should be read as "Compel Arbitration and Stay Proceedings pending outcome of that Arbitration."

[Robby8900]

13 hours ago, Goody_Ouchless said:

How would they conflict? Motion should be read as "Compel Arbitration and Stay Proceedings pending outcome of that Arbitration."

In Ohio debt buyers, [LVNV] bring suit against the debtor in municipal courts. Muni doesn't have jurisdiction over a compel arbitration motion, the common please court does. If there is an Arb clause in the agreement, a defendant only needs to file MTS proceedings. Doing so in Ohio places the burden of initiating Arb on the plaintiff. In the WHEREFORE,  clause of your motion is where one moves the court to enter an Order for MTS and for other such relief as the court deems just and proper. Then in the order to grant the motion also require the plaintiff, to initiate Arb within 30 day or be subject to dismissal pursuant Rule 41(B)(1) of Ohio Civ.R. of procedure. Oh the Key is not to motion to compel but "refer" to Arb. that is where i believe the magic happens between compel and claims "referable" to Arb. 

Capital One Bank (USA) N.A. v. Rotman, 2012-Ohio-480, at {¶ 8} & {¶ 9}.

 

[Brotherskeeper]

@Robby8900 @Goody_Ouchless This is from an Ohio attorney/lawfirm white paper on arbitration:

Compelling and Staying Arbitration in Ohio

"Counsel should file a motion to stay court proceedings concurrently with a motion to compel arbitration. If no party has sought to compel arbitration, the court will not grant a stay of the court proceedings. (See Trinity Health Sys. v. MDX Corp., 907 N.E.2d 746, 755-56 (Ohio App. 7th Dist. 2009).)"

Intersection of the FAA and Ohio Law
If an agreement falls under the FAA, the Ohio state court applies the federal standard for arbitrability when determining whether to compel or enjoin arbitration, rather than evaluating these threshold questions under Ohio state law (see Southland v. Keating Corp., 465 U.S. 1, 12-13 (1984); see also Practice Note, Compelling and Enjoining Arbitration in US Federal Courts: Arbitrability).
However, the federal standard must be consistent with Ohio law (see Academy of Medicine v. Aetna Health, Inc., 842 N.E.2d 488, 492 (Ohio 2006)).
If the FAA applies, it preempts state law only to the extent that state law contradicts federal law. However, even where the FAA applies, it does not prevent Ohio state courts from applying state contract law to determine whether the parties have entered into an arbitration agreement. (See Tillman v. Macy’s, Inc., 735 F.3d 453, 456 (6th Cir. 2013).)
Ohio state courts apply Ohio law to determine procedural remedies, such as the enforceability of the arbitration agreement. The law of the state named in a choice of law provision determines substantive issues, such as breach. (See Philpott v. Pride Tech. of Ohio,  L.L.C., 2015 WL 6166635, at *3 (Ohio App. 1st Dist. Oct. 21, 2015).)

Court Jurisdiction
Before commencing a proceeding to stay court proceedings and compel arbitration or to enjoin arbitration, petitioner’s counsel should confirm that there is a basis for the court’s subject matter jurisdiction and the exercise of personal jurisdiction over the respondent. Under the OAA, any Ohio court of common pleas has jurisdiction to hear an application to compel arbitration under a written agreement (R.C. 2711.03(A)).
Proper bases of personal jurisdiction include:
     * General jurisdiction, which creates jurisdiction over the parties themselves (see Prouse, Dash & Crouch, L.L.P. v. DiMarco, 876 N.E.2d 1226, 1228 (Ohio 2007)).
     * Specific jurisdiction, which is based on a party’s actions, such as contracting to sell goods in the state (R.C. 2307.382).
A valid choice of law provision in a contract is insufficient to create personal jurisdiction, but it is a factor the court considers (see Hercules Tire & Rubber Co. v. Murphy, 726 N.E.2d 1080, 1083 (Ohio App. 3rd Dist. 1999)).

Application to Compel or Enjoin Arbitration
A party asks an Ohio court to compel arbitration by filing a petition or a motion (R.C. 2711.03; Ohio Civ. R. 7(B)). If there is a court action between the parties already pending, the movant files the motion in that action. If there is no pending court action between the parties, the party starts a case by filing a petition (see Squires Constr. Co. v. Thomas, 2008 WL 802654, at *2, n.1 (Ohio App. 8th Dist. Mar. 27, 2008)).
A party moving to compel arbitration in a pending action should also request a stay of the court action (R.C. 2711.02(B)).

 

[Robby8900]

Nice!

[nobk4me]

5 hours ago, Brotherskeeper said:

Under the OAA, any Ohio court of common pleas has jurisdiction to hear an application to compel arbitration under a written agreement (R.C. 2711.03(A)).

Yes, in my arb case in a muni court, I noted that as well.  So I styled my motion as a Motion to Dismiss, or in the Alternative, to Stay Pending Arbitration.  The case wasn't dismissed but was stayed.  You definitely want to ask for a stay, since Ohio law makes a stay mandatory if there is a valid arb clause.

But, in the years since, a number of posters here in Ohio have filed MTCs in muni courts, with success.  It apparently doesn't make a difference.

 

[Robby8900]

If there is no lawsuit pending, a party may ask a court to compel the other party to arbitrate the dispute by filing a petition (R.C. 2711.03(A)). If the other party has already started a lawsuit, the party seeking to compel arbitration may make the request by filing a motion in that case to stay the litigation pending arbitration, to compel arbitration, or both (R.C. 2711.02(B)).

[BV80]

18 hours ago, Robby8900 said:

In Ohio debt buyers, [LVNV] bring suit against the debtor in municipal courts. Muni doesn't have jurisdiction over a compel arbitration motion, the common please court does. If there is an Arb clause in the agreement, a defendant only needs to file MTS proceedings. Doing so in Ohio places the burden of initiating Arb on the plaintiff. In the WHEREFORE,  clause of your motion is where one moves the court to enter an Order for MTS and for other such relief as the court deems just and proper. Then in the order to grant the motion also require the plaintiff, to initiate Arb within 30 day or be subject to dismissal pursuant Rule 41(B)(1) of Ohio Civ.R. of procedure. Oh the Key is not to motion to compel but "refer" to Arb. that is where i believe the magic happens between compel and claims "referable" to Arb. 

Capital One Bank (USA) N.A. v. Rotman, 2012-Ohio-480, at {¶ 8} & {¶ 9}.

 

What OH statute or rule says that municipal courts do not have jurisdiction over a motion to compel arbitration?

[Robby8900]

6 hours ago, BV80 said:

What OH statute or rule says that municipal courts do not have jurisdiction over a motion to compel arbitration?

(R.C. 2711.03(A))

[nobk4me]

R.C. 2711.03(A):  

A) The party aggrieved by the alleged failure of another to perform under a written agreement for arbitration may petition any court of common pleas having jurisdiction of the party so failing to perform for an order directing that the arbitration proceed in the manner provided for in the written agreement. Five days' notice in writing of that petition shall be served upon the party in default. Service of the notice shall be made in the manner provided for the service of a summons. The court shall hear the parties, and, upon being satisfied that the making of the agreement for arbitration or the failure to comply with the agreement is not in issue, the court shall make an order directing the parties to proceed to arbitration in accordance with the agreement.

 [Emphasis added.  Note that the statute doesn't say municipal court.]

See also  R.C. 2711.16:

Jurisdiction of judicial proceedings provided for by sections 2711.01 to 2711.14, inclusive, of the Revised Code, is generally in the courts of common pleas, and actions and proceedings brought under such sections shall be brought either in the court of common pleas of the county designated by the parties to the arbitration agreement as provided in section 2711.08 of the Revised Code, which designation is an irrevocable consent to the parties thereto to such jurisdiction, or, whether or not such designation has been made, in the court of common pleas of any county in which a party in interest resides or may be summoned, or if any party in interest is a corporation, in any county in which such corporation is situated, or has or had its principal office or place of business, or in which such corporation has an office or agent, or in any county in which a summons may be served upon the president, chairman or president of the board of directors or trustees, or other chief officer.

[Again, emphasis added.]

But, as I have noted above, experience with MTC Arb cases filed in muni courts shows that it doesn't seem to matter.