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Robby8900

Ohio Civ.R. 41(B)(4)(a) Dismiss a complaint without compelling arbitration

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I read a lot of post on this website regarding arbitration and have posted and responded to many post. That being said. In Ohio when one is served a complaint the defendant can answer, including affirmative defenses, or may choose to file a motion before pleading affirmative defenses. A MTC arbitration which would include the assertion, lack of subject matter jurisdiction due to an arbitration clause under Ohio civil rules 12(B)(1). But, can we dismiss a complaint for lack of jurisdiction due to an arb clause, without filing an MTC. I, believe, that we might be able to under rule 41(B)(4)(a) for failure otherwise than on the merits. i could be wrong, so i am open to criticism. My thought is instead of filing a MTC maybe we might file a motion to dismiss for lack of jurisdiction for failure otherwise than on the merits due to a arbitration clause. In Thomas v. Freeman the Ohio supreme court explains rule 41 really good.  https://caselaw.findlaw.com/oh-supreme-court/1002470.html

Here is Ohio civil rules so that you can easily go to rule 41 to read it. http://www.supremecourt.ohio.gov/LegalResources/Rules/civil/CivilProcedure.pdf.

I believe, to elect arbitration, is just that and simply replaces both parties rights to go before a court, such a Credit One Bank card agreements. I hope that those on here can read between the lines without me having to write a book on here to explain my thoughts. but after reading the Thomas case, it seems to open up a way to dismiss other than on merits.

This is information only and not legal advise as i am not an attorney.

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9 minutes ago, BV80 said:

@Robby8900

What would be the purpose and advantage of a 41(B) motion to dismiss over a motion to compel arbitration?

41(B)(4)(a) in Ohio is lack of jurisdiction, just as 12(B)(1). If i require arbitration prior to any lawsuits, and the clause states electing arb replace the right of both parties to go before a judge or jury in a court, then using 41(B) would be logical to dismiss for failure other than on the merits as apposed to 12(B)(1) under pleadings (defenses) which is adjudicated on the merits. if they did sue and the judge deny the motion, its simple to file  a MTC.

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23 minutes ago, Robby8900 said:

41(B)(4)(a) in Ohio is lack of jurisdiction, just as 12(B)(1). If i require arbitration prior to any lawsuits, and the clause states electing arb replace the right of both parties to go before a judge or jury in a court, then using 41(B) would be logical to dismiss for failure other than on the merits as apposed to 12(B)(1) under pleadings (defenses) which is adjudicated on the merits. if they did sue and the judge deny the motion, its simple to file  a MTC.

Which part of the rule says that a 41(B) motion can be filed in lieu of an answer?

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45 minutes ago, BV80 said:

Which part of the rule says that a 41(B) motion can be filed in lieu of an answer?

Lack of subject matter jurisdiction can be challenged at any part of a proceeding. What rule say you cant file a rule 41(B)(4)(a) in lieu of an answer?

Ohio Civ.R. 41(B)(4)(a): ''Failure other than on the merits. A dismissal for either of the following reasons shall operate as a failure otherwise than on the merits: (a)lack of jurisdiction over the person or the subject matter;''

Do you think a plaintiff will assert the arbitration clause as a material fact to be adjudicated on the merits in its complaint? if arbitration was demanded prior to a suit being filed, and the clause states electing said clause replaces both parties rights to go to court, then yes, i believe the arb clause is the ''otherwise than on the merits'' under 41(b)(4)(a). In Thomas v. Freeman the court explains the rule 41 really good, though it speaks about non service, but also explains those properly served.

THOMAS et al., Appellants, v. FREEMAN, Appellee, Ohio Supreme Court, No.96-2

 

 

 

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3 hours ago, Robby8900 said:

Lack of subject matter jurisdiction can be challenged at any part of a proceeding. What rule say you cant file a rule 41(B)(4)(a) in lieu of an answer?

Ohio Civ.R. 41(B)(4)(a): ''Failure other than on the merits. A dismissal for either of the following reasons shall operate as a failure otherwise than on the merits: (a)lack of jurisdiction over the person or the subject matter;''

Do you think a plaintiff will assert the arbitration clause as a material fact to be adjudicated on the merits in its complaint? if arbitration was demanded prior to a suit being filed, and the clause states electing said clause replaces both parties rights to go to court, then yes, i believe the arb clause is the ''otherwise than on the merits'' under 41(b)(4)(a). In Thomas v. Freeman the court explains the rule 41 really good, though it speaks about non service, but also explains those properly served.

THOMAS et al., Appellants, v. FREEMAN, Appellee, Ohio Supreme Court, No.96-2

 

 

 

 

Rule 12(b)(6) says that a motion to dismiss can be filed in lieu of an answer for certain reasons.  Why would there be 2 rules for the same thing?  

You cannot include in a rule something that is not there.  Where is the case law that supports a 41(B) motion in lieu of an answer?

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 There is not a dismissal under 41(B)(4)(a) for failure to state a claim. However, there is a section under both rules to dismiss for lack of subject matter jurisdiction.

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4 minutes ago, Robby8900 said:

 There is not a dismissal under 41(B)(4)(a) for failure to state a claim. However, there is a section under both rules to dismiss for lack of subject matter jurisdiction.

Three is also a MTD for lack of subject matter jurisdiction under 12(B).  So, again, why would there be 2 rules for the same motion, and where is your case law?

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27 minutes ago, BV80 said:

Three is also a MTD for lack of subject matter jurisdiction under 12(B).  So, again, why would there be 2 rules for the same motion, and where is your case law?

Rule 41(B)(3): Adjudication on the merits; exception. A dismissal under division (B) of this rule and any dismissal not provided for in this rule, except as provided in division (B)(4) of this rule, operates as an adjudication upon the merits unless the court, in its order for dismissal, otherwise specifies.

12(B) is adjudicated on the merits, 41(B)(4)(a) is ''otherwise than on the merits''. in all of the MTC arbitration motions that i have read on this site state a ''affirmative defense'' of lack of subject matter jurisdiction due to an underlying arbitration clause. That obviously will be adjudicated upon the merits under 12(B). A court has no business weighing the ''merits'' of a claim referable to arbitration. Henry Schein, Inc. v. Archer & White Sales, Inc., 586 U.S. ___ (2019). So if i demand arbitration, prior to a lawsuit, and the clause state that the parties rights to go to court, are replaced by my election and the JDB files a suit anyway after lawful notice of demand to arbitrate that demand, and section of the arb clause, will be an exhibit in my motion to dismiss under rule 41 for lack of jurisdiction of both, me, and subject matter, as a failure to prosecute otherwise than on the merits.  

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2 hours ago, Robby8900 said:

Rule 41(B)(3): Adjudication on the merits; exception. A dismissal under division (B) of this rule and any dismissal not provided for in this rule, except as provided in division (B)(4) of this rule, operates as an adjudication upon the merits unless the court, in its order for dismissal, otherwise specifies.

12(B) is adjudicated on the merits, 41(B)(4)(a) is ''otherwise than on the merits''. in all of the MTC arbitration motions that i have read on this site state a ''affirmative defense'' of lack of subject matter jurisdiction due to an underlying arbitration clause. That obviously will be adjudicated upon the merits under 12(B). A court has no business weighing the ''merits'' of a claim referable to arbitration. Henry Schein, Inc. v. Archer & White Sales, Inc., 586 U.S. ___ (2019). So if i demand arbitration, prior to a lawsuit, and the clause state that the parties rights to go to court, are replaced by my election and the JDB files a suit anyway after lawful notice of demand to arbitrate that demand, and section of the arb clause, will be an exhibit in my motion to dismiss under rule 41 for lack of jurisdiction of both, me, and subject matter, as a failure to prosecute otherwise than on the merits.  

I understand the rule.  The highlighted parts do not indicate that a 41(B) dismissal can be done in lieu of an answer.  

Where is the case law? 

 

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8 hours ago, BV80 said:

I understand the rule.  The highlighted parts do not indicate that a 41(B) dismissal can be done in lieu of an answer.  

Where is the case law? 

 

As of this morning i have not yet found a case. Will still continue to search.

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On 9/22/2019 at 7:15 AM, Robby8900 said:

As of this morning i have not yet found a case. Will still continue to search.

I don’t know if you’ve found case law in support of your claims in your opening post, but here are my thoughts.

Rule 12(B)(6) is the rule that allows for a MTD in lieu of an answer based upon jurisdiction.  It makes no sense that there would be two rules for the very same thing.  

@fisthardcheese has researched the arbitration process for years.  If he felt a MTD in lieu of an answer was the best step to take, he would advise readers to do so.   There are reasons for a MTC arbitration.

Employing your step would require the judge to determine if there is a valid agreement to arbitrate, but he would not required to issue an order to arbitrate.  He would only be required to dismiss without prejudice which would allow the plaintiff to refile.  Some plaintiffs would not refile but others would.   The defendant would then have to go through the same process again.

A MTC arbitration requires the judge to issue an order that the parties arbitrate.  Your suggested step makes no such requirement.   That order to arbitrate is a benefit and protection for the motioning party.  

Depending upon the language in the order, in the event the plaintiff still refuses to arbitrate, the defendant can motion for sanctions against the plaintiff.  The court can sanction the plaintiff by dismissing the lawsuit with prejudice.  

If the defendant does not or cannot file a motion for sanctions, the order still protects him should the plaintiff choose to refile.   In fact, if the plaintiff still employs the same law firm, the attorney would know that the defendant possesses an order from the court which would be a deterrent to refiling. 

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1 hour ago, BV80 said:

I don’t know if you’ve found case law in support of your claims in your opening post, but here are my thoughts.

Rule 12(B)(6) is the rule that allows for a MTD in lieu of an answer based upon jurisdiction.  It makes no sense that there would be two rules for the very same thing.  

@fisthardcheese has researched the arbitration process for years.  If he felt a MTD in lieu of an answer was the best step to take, he would advise readers to do so.   There are reasons for a MTC arbitration.

Employing your step would require the judge to determine if there is a valid agreement to arbitrate, but he would not required to issue an order to arbitrate.  He would only be required to dismiss without prejudice which would allow the plaintiff to refile.  Some plaintiffs would not refile but others would.   The defendant would then have to go through the same process again.

A MTC arbitration requires the judge to issue an order that the parties arbitrate.  Your suggested step makes no such requirement.   That order to arbitrate is a benefit and protection for the motioning party.  

Depending upon the language in the order, in the event the plaintiff still refuses to arbitrate, the defendant can motion for sanctions against the plaintiff.  The court can sanction the plaintiff by dismissing the lawsuit with prejudice.  

If the defendant does not or cannot file a motion for sanctions, the order still protects him should the plaintiff choose to refile.   In fact, if the plaintiff still employs the same law firm, the attorney would know that the defendant possesses an order from the court which would be a deterrent to refiling. 

Have not found any case law.

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8 hours ago, BV80 said:

A MTC arbitration requires the judge to issue an order that the parties arbitrate.  Your suggested step makes no such requirement.   That order to arbitrate is a benefit and protection for the motioning party. 

To put it another way, simply asking for a dismissal, if granted, allows the Plaintiff to do whatever they want to afterwards and you still have the debt hanging over your head for however long the SOL remains.  However, getting the MTC granted and taking a few more steps after, will eventually put the issue to bed for good.  IMO that is the much better way to deal with this.  If you're already sued and dealing with court, I would only want to do it once and get it over for good instead of trying to make some side step to prolong it and potentially going back to court to deal with it another day.

Another thing to consider:  The volume of people using this website for help who have won using the arbitration strategy is pretty close to 100%.   If it were me, I would not want to try to blaze a new path when there is a perfectly paved and well lit path right in front of me.  I like playing the odds and you can't get much better than the odds of arbitration with a JDB.

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20 hours ago, fisthardcheese said:

To put it another way, simply asking for a dismissal, if granted, allows the Plaintiff to do whatever they want to afterwards and you still have the debt hanging over your head for however long the SOL remains.  However, getting the MTC granted and taking a few more steps after, will eventually put the issue to bed for good.  IMO that is the much better way to deal with this.  If you're already sued and dealing with court, I would only want to do it once and get it over for good instead of trying to make some side step to prolong it and potentially going back to court to deal with it another day.

Another thing to consider:  The volume of people using this website for help who have won using the arbitration strategy is pretty close to 100%.   If it were me, I would not want to try to blaze a new path when there is a perfectly paved and well lit path right in front of me.  I like playing the odds and you can't get much better than the odds of arbitration with a JDB.

IMO?

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