Motion to dismiss prior to answer

[Robby8900]

Why not just file a motion to dismiss for lack of subject matter jurisdiction before answering a complaint and before a MTC or MTS regarding a cardholder agreement with an Arb clause.

[Harry Seaward]

Because the court does have subject matter jurisdiction. That's why the FAA and state statutes regarding arbitration all talk about a stay and not dismissal. 

[Harry Seaward]

And if the court dismisses the lawsuit, who's going to issue the order to arbitrate? 

[BV80]

@Robby8900

In addition to what has already been stated, one may also choose to file an answer with a motion to compel.  The reason is because in some courts, if no answer is filed, the plaintiff can voluntarily dismiss the lawsuit without permission from the court or stipulations with the defendant.  

If the defendant would like to have a possible chance for a dismissal with prejudice and a deletion of a credit report entry, depending upon his court rules, he should file an answer.  

[Robby8900]

i believe, that if you get it dismissed there is no order for arbitration. The plaintiff, on its own accord would have to initiate Arb or simply forget the pursuit.

[BV80]

‘

1 hour ago, Robby8900 said:

i believe, that if you get it dismissed there is no order for arbitration. The plaintiff, on its own accord would have to initiate Arb or simply forget the pursuit.

Why would they have to initiate or forget the pursuit?

[Robby8900]

58 minutes ago, BV80 said:

‘

Why would they have to initiate or forget the pursuit?

In Ohio if the defendant (debtor) elects arbitration the burden is upon the plaintiff, to initiate arb action. If a MTD  prior to answering the complaint, is granted, that would put the plaintiff, in a position to either, intiate arb, or voluntarily dismiss under rule 41, or do nothing, and get an involuntary dismissal under rule 41(B)(1). I have a debt buyer threatening to sue, they bought a Credit One Bank portfolio. in the Arb clause if either party elects arb, it replaces both parties right to go to court. So i have been praticing drafting MTD, and also answers and MTS if the MTD were to be denied. Here is draft of my MTD that i may use if they follow through and sue me.

 

[BV80]

5 minutes ago, Robby8900 said:

In Ohio if the defendant (debtor) elects arbitration the burden is upon the plaintiff, to initiate arb action.

Absent a court order, what is the rule or statute that supports the above?

[Robby8900]

2 minutes ago, BV80 said:

Absent a court order, what is the rule or statute that supports the above?

I have a drafted proposed order just didn't post it. That said. The case in support is Capital One Bank (USA) N.A. v. Rotman, 2012-Ohio-480. at {¶ 9.

{¶ 9} Here, the terms of the arbitration agreement gave either party the right to elect arbitration of any claim between them.  Thus, either party had the right to have the matter referred to arbitration.  Case law instructs that where a matter is subject to arbitration, “[t]he burden is on the plaintiff to commence the arbitration action, and the parties are obliged to cooperate and respond in a timely manner......Indeed, it would be nonsensical to require a defendant to commence arbitration of a claim against himself.

[Harry Seaward]

3 minutes ago, Robby8900 said:

Here, the terms of the arbitration agreement gave either party the right to elect arbitration of any claim between them.  Thus, either party had the right to have the matter referred to arbitration.  Case law instructs that where a matter is subject to arbitration, “[t]he burden is on the plaintiff to commence the arbitration action, and the parties are obliged to cooperate and respond in a timely manner......Indeed, it would be nonsensical to require a defendant to commence arbitration of a claim against himself.

None of this says anything about the case being dismissed, or bypasses an order for arbitration. The "obligation" can only be enforced by a court following an order to arbitrate. 

[Robby8900]

Just now, Harry Seaward said:

None of this says anything about the case being dismissed, or bypasses an order for arbitration. The "obligation" can only be enforced by a court following an order to arbitrate. 

The case is not cited in my mock draft (MTD) for the reason that case supports a claim referable to arb. Obviously this would be in my MTS if a dismissal was DENIED. I  was only speak of MTD prior to answering a complaint, not after or during at which time, i would file a MTS proceedings. i wouldn't file a MTC. unless i already required arbitration, and the OP refused to respond. Then i would file a MTC. 

[BV80]

You did not read the reason for the ruling.

{¶ 1} Defendant-appellant, Mitchell R. Rotman, appeals the decision of the Cleveland Heights Municipal Court that denied his motion to stay proceedings pending arbitration. For the reasons stated herein, we reverse the decision of the trial court and remand the matter for further proceedings consistent herewith.

{¶ 2} The issue presented in this appeal is whether a defendant may obtain a stay of proceedings pending arbitration without having first initiated the arbitration proceedings. We conclude that the initiation of the arbitration proceedings is not a prerequisite for obtaining a stay of the action pursuant to R.C. 2711.02(B).

The issue had nothing to do with a motion to dismiss without a court order.

Rotman did not file a simple motion to dismiss for lack of subject matter jurisdiction.  He filed a motion to stay the proceedings pending arbitration.  Cap One argued that Rotman had not yet initiated arbitration.

Note the issue before the court in paragraph 2.  It was whether or not initiation was required before obtaining a stay.  The court ruled that a party may request a stay without initiating.  That ruling does not support your claim.  

[Harry Seaward]

1 minute ago, Robby8900 said:

I  was only speak of MTD prior to answering a complaint

The court *does* have jurisdiction so unless you get a rogue judge, the MTD will be denied. 

[Robby8900]

1 minute ago, Harry Seaward said:

The court *does* have jurisdiction so unless you get a rogue judge, the MTD will be denied. 

 

1 minute ago, BV80 said:

You did not read the reason for the ruling.

{¶ 1} Defendant-appellant, Mitchell R. Rotman, appeals the decision of the Cleveland Heights Municipal Court that denied his motion to stay proceedings pending arbitration. For the reasons stated herein, we reverse the decision of the trial court and remand the matter for further proceedings consistent herewith.

{¶ 2} The issue presented in this appeal is whether a defendant may obtain a stay of proceedings pending arbitration without having first initiated the arbitration proceedings. We conclude that the initiation of the arbitration proceedings is not a prerequisite for obtaining a stay of the action pursuant to R.C. 2711.02(B).

The issue had nothing to do with a motion to dismiss without a court order.

Rotman did not file a simple motion to dismiss for lack of subject matter jurisdiction.  He filed a motion to stay the proceedings pending arbitration.  Cap One argued that Rotman had not yet initiated arbitration.

Note the issue before the court in paragraph 2.  It was whether or not initiation was required before obtaining a stay.  The court ruled that a party may request a stay without initiating.  That ruling does not support your claim.  

I under stand that i have a motion to stay drafted using this case that without a doubt i know would be granted. i was just deciding to try a MTD first to see how that goes if they sue, i would have 28 days to answer complaint.

[Robby8900]

1 hour ago, Robby8900 said:

 

 

I under stand that i have a motion to stay drafted using this case that without a doubt i know would be granted. i was just deciding to try a MTD first to see how that goes if they sue, i would have 28 days to answer complaint.

So that we do not get confused, here is a copy ofmy draft for MTS that i may use if they sue, and i decide to answer and include this motion.

 

[BV80]

5 hours ago, Robby8900 said:

So that we do not get confused, here is a copy ofmy draft for MTS that i may use if they sue, and i decide to answer and include this motion.

 

You should also read the following thread.  It contains a sample motion to compel that includes Supreme Court rulings.  The author,  @fisthardcheese, also gives a thorough description of the process.   

https://www.creditinfocenter.com/community/topic/329436-arbitration-overview-and-strategy-2018-most-up-to-date-info/