Billy Pilgrim

Need Help, PRA followed me into Arb in AZ after dropping court case (attn: Harry Seaward)

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4 minutes ago, kittycat said:
 

All that would matter is an evaluation of waiver?  It wouldn't matter that the very same claims had already been finally adjudicated in a form equivalent to a bench or jury trial?

It might be useful for Billy to describe the history of events in the arbitration filing/case  I'm assuming that Billy is the claimant, and filed with either no claims or vague claims.  And that respondent PRA filed counterclaims (in the arbitration case) some time subsequent.  I'm wondering if the respondent's counterclaims where filed after they filed the motion to dismiss with prejudice.

Courts determine the right to arbitrate based upon the existence of a valid arbitration agreement between parties and whether or not the compelling party has waived that right.

I agree that it would help if we had a timeline of the proceedings and what was stated in PRA’s motion to dismiss and the court’s order granting both the MTC arbitration and PRA’s dismissal.  

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4 minutes ago, BV80 said:
Courts determine the right to arbitrate based upon the existence of a valid arbitration agreement between parties and whether or not the compelling party has waived that right. 

And not whether the specific claims at issue have already been adjudicated?  Or, is final adjudication only a form of waiver in your view, and not an independent obstacle to arbitration in its own right?

Final adjudication of claims by a court is only a factor to be considered in the determination of whether or not that party has waived some right to pursue the very same claims in arbitration, and may not be considered for anything other than the determination of waiver?

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1 hour ago, kittycat said:

the very same claims for which they have just made a public renunciation?

When did they renounce their claims?

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1 hour ago, BV80 said:

If PRA were to file its own MTC arbitration, it might need to be determined if PRA waived its right to arbitrate by voluntarily dismissing with prejudice before substantially engaging in litigation.  That would be for the court to decide.  

Consider the follow hypothetical:

1. PRA brings claims against Billy in az justice court.

2. Billy prevails at bench trial in az justice court.

3. PRA doesn't appeal to az superior court within the time allowed, but instead files a case for the same claims in arbitration.

4. Billy ignores all of the correspondence from the arbitration forum, believing that the court adjudication was final.

5. PRA could file its own "MTC arbitration" in order to get Billy to participate in the arbitration proceedings, but since PRA has paid all of the arbitration costs, the arbitration forum allows PRA to proceed with the arbitration case against Billy in absentia.

The arbitration is held without Billy being present, and the arbiter issues an award against Billy.

As you've said, "The dismissal does not deprive the court of jurisdiction to confirm an award":

On 5/28/2020 at 6:04 AM, BV80 said:

The dismissal does not deprive the court of jurisdiction to confirm an award.  The FAA provides that jurisdiction.

If Billy were to oppose confirmation of the award, would "waiver" be the sole basis that Billy could use in opposition of the award being confirmed?

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15 minutes ago, Harry Seaward said:

When did they renounce their claims?

When they filed the motion to dismiss with prejudice.

My reasoning is based on the modern law interpretations of the effect of filing such a motion (as explained in the previously linked pdf), combined with the common law definition of retraxit, some of which has been incorporated into modern civil jurisprudence.

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5 minutes ago, kittycat said:

When they filed the motion to dismiss with prejudice.

Wasn't the purpose of the MTD, as expressed by PRA, to allow the parties to pursue arbitration?

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1 hour ago, kittycat said:

Consider the follow hypothetical:

1. PRA brings claims against Billy in az justice court.

2. Billy prevails at bench trial in az justice court.

3. PRA doesn't appeal to az superior court within the time allowed, but instead files a case for the same claims in arbitration.

4. Billy ignores all of the correspondence from the arbitration forum, believing that the court adjudication was final.

5. PRA could file its own "MTC arbitration" in order to get Billy to participate in the arbitration proceedings, but since PRA has paid all of the arbitration costs, the arbitration forum allows PRA to proceed with the arbitration case against Billy in absentia.

The arbitration is held without Billy being present, and the arbiter issues an award against Billy.

As you've said, "The dismissal does not deprive the court of jurisdiction to confirm an award":

Well, I’ve never read of such a hypothetical actually taking place.   I don’t know what would happen in that case.  If Billy has had opposed the MTC based on the fact that the trial court had issued a ruling in his favor, and he would be prejudiced by further proceedings, gopher court might rule in his favor.  However, if one does not respond, I don’t know what the court would do when it came time to confirm an award.  It could very well say “You got the notice. You knew about it.  You snooze, you lose.”  I don’t know.
 

49 minutes ago, kittycat said:

When they filed the motion to dismiss with prejudice.

My reasoning is based on the modern law interpretations of the effect of filing such a motion (as explained in the previously linked pdf), combined with the common law definition of retraxit, some of which has been incorporated into modern civil jurisprudence.

Retraxit is nothing more than a voluntarily dismissal with prejudice.  “Voluntarily dismissal with prejudice” is the more common term.  As I previously stated, it would help to know a timeline and what was stated in the motion.  

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On 5/18/2020 at 3:34 PM, Billy Pilgrim said:

In this new motion, PRA requests that the dismissal be vacated "so that parties may proceed with arbitration".

@Billy Pilgrim can you post the text of both the original MTD and subsequent motion to vacate. 

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8 hours ago, Harry Seaward said:

Wasn't the purpose of the MTD, as expressed by PRA, to allow the parties to pursue arbitration?

No. That's in the May 12th "Motion to Reinstate Dismissed Case" (Motion to Vacate), not in the Feb 11th motion to dismiss with prejudice.

All of the information below appeared earlier in this thread.

Billy filed a motion to compel arbitration sometime between September and December 2019.  The court granted the motion in December 2019.

PRA's original in-house attorney filed the motion to dismiss with prejudice on February 11th, 2020. (in the interim between Dec. and Feb., PRA apparently also sent settlement correspondence).  There was no reference to arbitration in the Feb. 11th motion to dismiss with prejudice.

PRA changed the in-house attorney on the case.

The court granted the motion to dismiss with prejudice on April 22nd.

On May 12th, PRA filed an expedited "Motion to Reinstate Dismissed Case" (Motion to Vacate the April 22nd order [dismissing with prejudice])

 

On 3/16/2020 at 8:13 AM, kittycat said:

Billy, how did PRA word their motion to dismiss? Is there any reference to the arbitration order or case in any way?

 

On 3/16/2020 at 1:32 PM, Billy Pilgrim said:

Kittycat, on the motion to dismiss there's no reference to the court case or arbitration case.  There's only the standard notice about responding within 10 days, and below that they wrote "plaintiff, by and through undersigned counsel, pursuant to Rules 144(d) and 144(f) of the Justice Rules of Civil Procedure, moves this court for its order dismissing the above-captioned matter with prejudice."

 

On 3/13/2020 at 4:28 PM, Billy Pilgrim said:
after I filed the arbitration case on Jan 24th, PRA went ahead and filed a motion to dismiss the case WITH PREJUDICE in Court Feb 11th.

 

On 5/18/2020 at 3:34 PM, Billy Pilgrim said:

on April 22, the court judge granted PRA's motion to dismiss with prejudice (after 83 days, lol).  Now, PRA is trying to get the court case reinstated having filed (on May 12) a "Motion to Reinstate Dismissed Case" with an expedited ruling requested.  In this new motion, PRA requests that the dismissal be vacated "so that parties may proceed with arbitration".

 

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6 hours ago, BV80 said:

Retraxit is nothing more than a voluntarily dismissal with prejudice.  “Voluntarily dismissal with prejudice” is the more common term.

You've typed "voluntarily" in boldface in several of your prior posts.  Do you mean to imply that retraxit (or voluntary dismissal with prejudice, if you like) is somehow not equivalent to a verdict and judgment on the merits of the case, and doesn't bar another action for the same cause between same parties?  That somehow the "voluntarily" nature of  the motion to dismiss with prejudice is lesser than a verdict and judgment on the merits of the case?

It isn't entirely voluntary in az, at least in the sense that PRA had to make a motion to the court.  They couldn't do it unilaterally without court approval.  Billy had already answered.

 

7 hours ago, BV80 said:

Well, I’ve never read of such a hypothetical actually taking place.

And it probably never would.  The purpose of that particular hypothetical was to flesh out your opinion of the effect of a verdict and judgment (on the merits of the case) on further attempts to pursue the very same claims, in whatever forum.  Apparently your view is that there is no finality.

I will pause posting about this topic now.  Apparently no one here finds my posts of any value.  They'll also be moot if the court grants the the motion to vacate the dismissal with prejudice ("Motion to Reinstate Dismissed Case").  Since Billy doesn't have an attorney, this may very well happen.

I'll chime back in if the court denies the "motion to reinstate dismissed case".  There is no sense in spinning my wheels on this subject any more right now.

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6 hours ago, kittycat said:

On May 12th, PRA filed an expedited "Motion to Reinstate Dismissed Case" (Motion to Vacate the April 22nd order [dismissing with prejudice])

Below is potentially the missing piece to this mystery:

On 5/18/2020 at 3:34 PM, Billy Pilgrim said:

PRA claims it was due to "mistake, inadvertence, surprise, or excusable neglect" when they filed their Motion to Dismiss

This is why i want to see the wording of the Motion to Dismiss and Motion to Vacate. OP said the Motion to Dismiss didn't say anything about the court case or arbitration, which would be very odd if the MTD was intentional. Inadvertently filing a MTD in the wrong case wouldn't be unheard of and is a perfectly justifiable reason to request a Motion to Vacate.

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6 hours ago, kittycat said:

Apparently no one here finds my posts of any value.

They would hold more weight if you bolster them with some legal authority.

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2 hours ago, Harry Seaward said:

Below is potentially the missing piece to this mystery:

On 5/18/2020 at 3:34 PM, Billy Pilgrim said:

PRA claims it was due to "mistake, inadvertence, surprise, or excusable neglect" when they filed their Motion to Dismiss

This is why i want to see the wording of the Motion to Dismiss and Motion to Vacate. OP said the Motion to Dismiss didn't say anything about the court case or arbitration, which would be very odd if the MTD was intentional. Inadvertently filing a MTD in the wrong case wouldn't be unheard of and is a perfectly justifiable reason to request a Motion to Vacate.

 

In your above quote from Billy's "5/18/2020 at 3:34PM" post, the rest of that sentence makes it less mysterious:

 

On 5/18/2020 at 3:34 PM, Billy Pilgrim said:

PRA claims it was due to "mistake, inadvertence, surprise, or excusable neglect" when they filed their Motion to Dismiss a good 3-4 weeks [before] paying the AAA filing fee and arbitrator deposit.

 

In the run-up to the filing of the motion to dismiss with prejudice, all of their other efforts at the time were consistent with trying to kill the court case.  And at that time they were doing nothing in AAA.  

 

On 5/20/2020 at 8:13 PM, Billy Pilgrim said:
On 5/20/2020 at 7:59 PM, kittycat said:

Do they elaborate on "mistake, inadvertence, surprise, or excusable neglect" in the motion to vacate?  How this goes is pretty much up to the JP.

They did not elaborate and I filed an opposition to their motion to vacate this afternoon.  I argued that they had a deliberate change of strategy rather than having made a mistake, and included 3 exhibits.  I was able to demonstrate that they made multiple attempts to dismiss the case (they mailed me a stipulated offer to dismiss without prejudice a few days before filing their motion to dismiss with prejudice), and this was weeks before they made their initial payment to AAA.  So I feel confident their motion to vacate will be denied, though I could be wrong of course.

 

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9 hours ago, kittycat said:

You've typed "voluntarily" in boldface in several of your prior posts.  Do you mean to imply that retraxit (or voluntary dismissal with prejudice, if you like) is somehow not equivalent to a verdict and judgment on the merits of the case, and doesn't bar another action for the same cause between same parties?  That somehow the "voluntarily" nature of  the motion to dismiss with prejudice is lesser than a verdict and judgment on the merits of the case?

It isn't entirely voluntary in az, at least in the sense that PRA had to make a motion to the court.  They couldn't do it unilaterally without court approval.  Billy had already answered.

I typed “voluntarily” due to the fact that is what took place.  It was not an involuntary dismissal.  Since there was no trial, depending on the circumstances, PRA might argue that they dismissed because they were willing to arbitrate.  

And it doesn’t matter that they had to motion the court to dismiss.  They made that motion of their own accord.  According to ARCP 41(a), it is still considered a voluntary dismissal.  

 

9 hours ago, kittycat said:

And it probably never would.  The purpose of that particular hypothetical was to flesh out your opinion of the effect of a verdict and judgment (on the merits of the case) on further attempts to pursue the very same claims, in whatever forum.  Apparently your view is that there is no finality.

I will pause posting about this topic now.  Apparently no one here finds my posts of any value.  They'll also be moot if the court grants the the motion to vacate the dismissal with prejudice ("Motion to Reinstate Dismissed Case").  Since Billy doesn't have an attorney, this may very well happen.

I'll chime back in if the court denies the "motion to reinstate dismissed case".  There is no sense in spinning my wheels on this subject any more right now.

I said that I don’t know what would happen in your hypothetical.  You suggested a hypothetical in which a MTC went unopposed even though the other party had received notice and had the opportunity to oppose it.   I simply offered a possibility based on what you stated.  Personally, I don’t think a party should be able to file in arbitration after it has engaged in litigation in court and the trial court has ruled in favor of the other party.  

The reason I’m not sure about finality is the fact that courts are allowed discretion in dismissing with prejudice when ordering arbitration.  It doesn’t matter that the dismissal takes place because the parties have been ordered to arbitrate.  That dismissal with prejudice does one thing and one thing only.  

I do not believe this case should be reinstated, but it’s not up to me.  

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4 hours ago, kittycat said:

In the run-up to the filing of the motion to dismiss with prejudice, all of their other efforts at the time were consistent with trying to kill the court case.

What efforts would those be? And "efforts" implies intentionality, so mistake, inadvertence, surprise, or excusable neglect wouldn't apply.

(Why are we bolding every other statement?)

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40 minutes ago, Harry Seaward said:

(Why are we bolding every other statement?)

Because my last few replies to you involved addressing questions that you had just posed but that I had already asked Billy previously in the thread, and that Billy had already answered.

For example, in your most recent reply, you stated:

"This is why i want to see the wording of the Motion to Dismiss and Motion to Vacate"

But I had already asked Billy about the contents of those motions on the same day that he posted about them.  And he replied with the details of the contents of those motions shortly thereafter.

So, I added emphasis when I copy and pasted those prior forum posts that contained my inquiry to Billy and his response, because you were asking about them now, when answers had already been provided.  I just wanted to be sure that you didn't miss them.  Sorry.

 

40 minutes ago, Harry Seaward said:

What efforts would those be? And "efforts" implies intentionality, so mistake, inadvertence, surprise, or excusable neglect wouldn't apply.

The efforts that were related by Billy in the post of his that I quoted in my previous reply to you.  It is at the very end of the post, I won't quote it again.  Perhaps you'll say that the actions taken by PRA as described by Billy aren't efforts consistent with an intention to dismiss the court case and settle the claims.  It's fine if we disagree.

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6 minutes ago, kittycat said:

It's fine if we disagree.

OK, because the only actual "effort" to dismiss was a MTD. The letters and MTD could be explained as follows. 

If you go back and read this thread (disregarding OPs unsupported interpretation of filings), mistakenly filing a MTD thinking this was a different case than the one in arbitration makes everything else fit perfectly into place. 

So for the 4th time, I'd like to see the filings before making any assumptions about how this case should be dealt with 

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2 hours ago, BV80 said:

And it doesn’t matter that they had to motion the court to dismiss.

It can matter.  Jurisdiction to vacate can be lost if the dismissal is done by notice rather than motion.

See:  Goodman v. Gordon, 447 P. 2d 230 - 1968 - ‎Ariz: Supreme Court

google scholar or justia

Quote

The issue here, however, is whether plaintiff himself can take away the state court's jurisdiction by dismissing his own case.

It is now the well-settled rule that, under Rule 41(a), para. 2, Rules Civ. Proced., before answer is filed the right to dismiss is absolute, self-executing, and accomplished automatically by plaintiff's filing a notice of dismissal. There need be no notice to defendant, no hearing on the matter, and no order of the court. It is equally well-settled that under Rule 41(a), para. 2, supra, after answer is filed the right to dismiss is discretionary, must be by motion, notice to defendants, hearing, and court order.

Plaintiff argues that after the trial court dismissed the action, it had no jurisdiction to act any further in that case that there was no case pending in which orders could be made. While this is true in most instances, it is not true as to the order involved in the instant case an order vacating the dismissal and reinstating the case, where the original order of dismissal was made upon the erroneous assumption that the motion to dismiss was unopposed.

It is therefore clear that in the instant case the dismissal requested by plaintiff was discretionary with the court. In exercising such discretion, however, the equities of the plaintiff are entitled to consideration as well as defendants, and a court's failure to consider the plaintiff's equities is a "denial of a full and complete exercise of judicial discretion."

I'll resist the temptation to set in boldface the key passages in the above.

The gist is that because a dismissal by notice is self-executing and involves no discretion of the court, the court loses jurisdiction upon its filing.

Whereas a dismissal by motion is discretionary, and therefore jurisdiction for modification is retained.  This can be important when sol is close.  It is also why the court has jurisdiction and can use its discretion to vacate the motion in Billy's case.

 

2 hours ago, BV80 said:

You suggested a hypothetical in which a MTC went unopposed even though the other party had received notice and had the opportunity to oppose it.

That wasn't one of the assumptions in my hypothetical.  But it doesn't matter. Billy isn't participating in this thread, so I'm just getting tag-teamed by those that have done incomplete readings or have misunderstood my posts.

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5 minutes ago, kittycat said:

It can matter.  Jurisdiction to vacate can be lost if the dismissal is done by notice rather than motion.

See:  Goodman v. Gordon, 447 P. 2d 230 - 1968 - ‎Ariz: Supreme Court

google scholar or justia

What are you talking about?   My response was to your following statement:

 

2 hours ago, BV80 said:

It isn't entirely voluntary in az, at least in the sense that PRA had to make a motion to the court.  They couldn't do it unilaterally without court approval. 

You had noted my references to “voluntary”.  I explained why I included that term.  It was a voluntary rather than involuntary dismissal.  Then you state that it wasn’t entirely voluntary.   Well, according to AZ rules of civil procedure, voluntary dismissal includes a motion to dismiss after an answer is filed.  My response was only in regard to what is considered a voluntary dismissal.  That’s all.  It had nothing to do with the court’s discretion or anything else.

 

10 minutes ago, kittycat said:

I'll resist the temptation to set in boldface the key passages in the above.

And I’ll resist the temptation to repeat my explanation.  

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14 hours ago, kittycat said:

No. That's in the May 12th "Motion to Reinstate Dismissed Case" (Motion to Vacate), not in the Feb 11th motion to dismiss with prejudice.

All of the information below appeared earlier in this thread.

Billy filed a motion to compel arbitration sometime between September and December 2019.  The court granted the motion in December 2019.

PRA's original in-house attorney filed the motion to dismiss with prejudice on February 11th, 2020. (in the interim between Dec. and Feb., PRA apparently also sent settlement correspondence).  There was no reference to arbitration in the Feb. 11th motion to dismiss with prejudice.

PRA changed the in-house attorney on the case.

The court granted the motion to dismiss with prejudice on April 22nd.

On May 12th, PRA filed an expedited "Motion to Reinstate Dismissed Case" (Motion to Vacate the April 22nd order [dismissing with prejudice])

 

 

 

 

 

To followup on a prior post of yours, PRA filed their arbitration counterclaim on March 23, well after their Motion to Dismiss.

Also a correction:  PRA actually filed their MTD on Jan 22nd, and then mailed me a copy of what appears to be a filed MTD timestamped Feb 10 and postmarked Feb 11.

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1 hour ago, Harry Seaward said:

OK, because the only actual "effort" to dismiss was a MTD. The letters and MTD could be explained as follows. 

If you go back and read this thread (disregarding OPs unsupported interpretation of filings), mistakenly filing a MTD thinking this was a different case than the one in arbitration makes everything else fit perfectly into place. 

So for the 4th time, I'd like to see the filings before making any assumptions about how this case should be dealt with 

I don't think it's admissible in court, but PRA mailed me a settlement offer to mutually dismiss without prejudice (which they wanted me to sign) on Jan 16th.  And as stated in the post above, they mailed me a copy of a MTD with prejudice timestamped Feb 10, several weeks after the filed MTD on record.

I'll scan the MTD that I have and the Motion to Vacate in a moment and attach the files to a post.

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I've attached the motion to dismiss (the copy PRA sent me), the motion to vacate, and the judge's granting of the MTC arbitration.  I don't have a copy of the court's granting of the MTD as apparently it wasn't mailed to me, but I could probably get one from the court.

motion to vacate page 2.jpg

mtc arb granted 3.jpg

mtd page 1 redo.jpeg

mtd page 2.jpeg

motion to vacate page 1 redo.jpeg

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That seems pretty clear to me that they filed the MTD by mistake, or at least realized after the fact that they should have left the court case open,  which would likely (and frankly, should) be forgiven as a mistake. 

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1 hour ago, Harry Seaward said:
 
 

That seems pretty clear to me that they filed the MTD by mistake, or at least realized after the fact that they should have left the court case open,  which would likely (and frankly, should) be forgiven as a mistake. 

Even after mailing me a settlement offer of a joint dismissal without prejudice?  PRA did change lead attorneys on the case.

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