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Motion to Compel arbitration granted, plaintiff filed motion for summary judgement anyway...


Mistymouse4590
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Summary: 

  • Sued by JDB
  • Responded with answer and motion to compel private arbitration requesting dismissal or a stay (didn't specify the length of stay)
  • JDB responded to motion claiming no objection to arbitration, but requested a 90-day stay in lieu of dismissal
  • Judge granted my motion "to compel arbitration". There was some confusion about whether the case was stayed, since I didn't specify a timeframe on my motion. The order didn't include any detail about whether or not the case was stayed and if so, for how long, but the clerk tells me the judge granted the JDB's response to my motion, which I assume means the case would have been stayed for 90 days, since that's what they specified.
  • It took me some time to understand the arb process, but finally filed 2.5 months later (still less than 90 days)
  • JDB filed motion for summary judgement before being notified of arbitration, and before the 90 days had expired. 

Is this a tactic to get me in default? Obviously I need to respond with a motion of opposition. Given that the judge granted my motion and ordered arbitration, and given that less than 90 days have passed since that motion, aren't I entitled to pursue a solution through arbitration without having to deal with summary judgement? Aren't there issues of controversy?

Would love some insight here on the best strategy to deal with this (I still have some time to file my response). 

Thanks!!!

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  • Mistymouse4590 changed the title to Motion to Compel arbitration granted, plaintiff filed motion for summary judgement anyway...
6 hours ago, Mistymouse4590 said:

There was some confusion about whether the case was stayed, since I didn't specify a timeframe on my motion.

Confusion with who? Was there conversation between you and Opposing? Was the judge present? 

Bottom line is opposing knows you are supposed to have 45 days to respond to the MSJ, so they are getting it filled now assuming you aren't going to follow through with arb. Provided you have an active case in arb, your opposition to MSJ is basically a single issue - the court has no jurisdiction because it has ordered the parties into arbitration. This exact issue was successfully appealed a few years ago. I'll post a link to the case when i get back home. 

Edit:  Here's the appellate courts ruling:
http://www.courtminutes.maricopa.gov/viewerME.asp?fn=Lower Court/092018/m8444523.pdf

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8 hours ago, Harry Seaward said:

Confusion with who? Was there conversation between you and Opposing? Was the judge present? 

 

I neglected to suggest a stay duration on my motion (I requested dismissal or an unspecified stay), and the Plaintiff suggested 90 days on their response to my motion. The ruling is a form with checkboxes and says "it is ordered granting said motion" and then says "It is further ordered to compel arbitration". No stay was mentioned in the ruling. 

There was no conversation between opposing and me. No judge present. 

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10 hours ago, Mistymouse4590 said:

No stay was mentioned in the ruling. 

The stay is automatic per the statute:
A.R.S. 12-1502(D)
"Any action or proceeding involving an issue subject to arbitration shall be stayed if an order for arbitration or an application therefor has been made under this section or, if the issue is severable, the stay may be with respect thereto only. When the application is made in such action or proceeding, the order for arbitration shall include such stay."

 

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Oh that's good to know. Thank you for the reference. 

In the thread referenced by @Bulldoger above, @HueyPilotsuggests a memorandum to the judge in lieu of a formal response: 

Is that a good strategy (obviously replacing the North Carolina-specific parts), or is it better to write a formal response? I suppose I can use some of the content in that memo. though...

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It doesn't really matter much what you call it.  Chances are whatever you file will be treated by the court as a response to the MSJ.  The important thing is that you do file something in response to the MSJ that addresses the court's lack of jurisdiction at this stage.

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On 10/29/2021 at 10:56 AM, Harry Seaward said:

It doesn't really matter much what you call it.  Chances are whatever you file will be treated by the court as a response to the MSJ.  The important thing is that you do file something in response to the MSJ that addresses the court's lack of jurisdiction at this stage.

I've drafted a response using the memorandum provided by @HueyPilot as a guide (with some edits). I'd love your opinion on whether or not this is overkill (maybe i just need to use paragraph 1 and then the last 2, so that i mention only the lack of jurisdiction and say the motion is moot pending arb):  

Quote

Defendant responds in opposition to Plaintiff’s Motion for Summary Judgment. 

For reasons stated herein, the Court should strike Plaintiff’s Motion for Summary Judgment rendering it null and void and have no effect on Defendant’s pending application to confirm private contractual arbitration per incorporated agreement attached to Defendant’s Motion to Compel Private Arbitration, and deny Plaintiff’s Motion for Summary Judgment as moot. A genuine dispute as to material facts exists regarding a number of unresolved issues. 

Arizona Civil Procedure § 12-1502 (D) Any action or proceeding involving an issue subject to arbitration shall be stayed if an order for arbitration or an application therefor has been made under this section or, if the issue is severable, the stay may be with respect thereto only. When the application is made in such action or proceeding, the order for arbitration shall include such stay.

An application has been made to stay action in this Court and Defendant’s Motion to Compel Private/Contractual Arbitration is in continuance. Answer to Plaintiff’s Summons and Complaint has been filed no further action has been initiated. The petition for private contractual arbitration includes a copy of the loan agreement which directs that disputes may be settled by private arbitration.

Answers and summary judgment motions are matters that relate to civil actions, not motions pertaining to arbitration proceedings. See Fed. R. Civ. P. 7(a) and 56. A party does not file an answer or a motion for summary judgment in response to a motion to vacate or to confirm an arbitration award. FRCP Rule 41, therefore, has no applicability to a proceeding relating to arbitration.

Plaintiff’s motion should not apply to a proceeding relating to arbitration for two reasons: (1) a proceeding relating to arbitration cannot be brought as a complaint to commence a civil action under the Federal Arbitration Act (FAA); and (2) Rule 81 restricts the applicability of the Federal Rules of Civil Procedure in arbitration matters. S&B Br. at 3-4 (citing 9 U.S.C. § 6; Fed. R. Civ. P. 81(a)(3)).1

Rule 41 pertains to voluntary dismissal of actions and provides as follows: an action may be dismissed by the plaintiff without order of court (i) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs, or (ii) by filing a stipulation of dismissal signed by all parties who have appeared in the action.

FAA’s goal of promoting the expeditious resolution of disputes, the enforcement of private arbitration agreements, rather than speed, is the dominant goal of the FAA that must be given priority by courts. See Guidotti, 716 F.3d at 773 (citing Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 219-21 (1983)). Normally, therefore, issues at the gateway to arbitration, such as the existence of an arbitration agreement, must be addressed according to judicial rather than arbitral practice.

When it is apparent on the face of the complaint and the Defendant’s motion documents incorporated therein that the parties agreed to arbitrate, the court should apply the FRCP 12(b)(6) standard for a motion to dismiss for failure to state a claim, without any opportunity for discovery.

Defendant has initiated the private arbitration process with JAMS and as required, has sent notice of service of arbitration commencement to Plaintiff. JAMS case/reference number is #########.

WHEREFORE, Defendant respectfully requests the Court deny Plaintiff’s Motion because Defendant’s Motion to Compel Private Arbitration was granted and both parties have been ordered into arbitration. While arbitration is pending, this Court has no jurisdiction and Plaintiff’s motion is moot. 


Thanks in advance for any feedback you can provide!

  

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Defendant responds in opposition to Plaintiff’s Motion for Summary Judgment. 

For reasons stated herein, the Court should strike Plaintiff’s Motion for Summary Judgment rendering it null and void and have no effect on Defendant’s pending application to confirm private contractual arbitration per incorporated agreement attached to Defendant’s Motion to Compel Private Arbitration, (I thought you said there was an order and you already filed) and deny Plaintiff’s Motion for Summary Judgment as moot. A genuine dispute as to material facts exists regarding a number of unresolved issues. 

Arizona Civil Procedure § 12-1502 (D) Any action or proceeding involving an issue subject to arbitration shall be stayed if an order for arbitration or an application therefor has been made under this section or, if the issue is severable, the stay may be with respect thereto only. When the application is made in such action or proceeding, the order for arbitration shall include such stay.

On XXXXX (date)  Judge XXXX ordered matter be moved to arbitration.  Order exhibit A.

Per Arizona Civil Procedure § 12-1502 (D) this civil case is stayed by above order and MSJ should not be addressed until matters of arbitration are completed.  

Defendant has filed with AAA/JAMS case number XXXX  see exhibit B 

Therefore, The MSJ should be stricken rendered null and void. 

that's about all you need IMO

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  • 4 weeks later...

Hey everyone, Happy Thanksgiving!

Just an update on this. 

I filed the response to the MSJ. Two weeks later, the Plaintiff filed a reply to my response. Their points:  

  1. Defendant failed to provide more than speculation and conclusory objections in the opposition of summary judgment."
    They correctly summarize that in my response, i made the point that the court should strike their MSJ because of pending private arb. They then claim, "The fact that there is a pending arbitration does not negate the authority the Court holds in this matter nor does it automatically force the Court to stay the matter." They mention that the Court granted a stay, but did not set a deadline by which the Defendant must initiate the arbitration, and that they waited "a reasonable 60 days" to allow the Defendant to initiate arbitration. "During that 60 days, Defendant failed to contact Plaintiff" (not true, I called twice to discuss a settlement) "and Defendant failed to initiate the Arbitration. Because of this, the Defendants' request for arbitration is untimely."
  2. Defendant Response fails to show any genuine issue of material facts
  3. Conclusion: "Defendant's response fails to describe any genuine issues of material facts. Plaintiff proved through its affadavit that it is entitled to judgment as a matter of law. Therefore, Plaintiff requests this Court grant Summary Judgment in its favor."

Something interesting here is that the Plaintiff responded to my initial Motion to Compel Arbitration with the following: 

"Plaintiff has no objection to Defendant's Motion to Compel, however, opposes dismissing the case at this time. In the alternative, Plaintiff requests the Court stay the proceedings in this case for a reasonable period of 90 days to allow the Defendant to initiate Private Arbitration Proceedings, rather than dismissing the present action."

How funny that they're replying to my response to their MSJ with a claim that they waited "a reasonable 60 days" to allow me to initiate arbitration, when their original response to my motion asked the court to stay for "a reasonable period of 90 days" for me to initiate Private Arbitration. My decision to wait to initiate arbitration was premised DIRECTLY on their preference for a 90-day stay, and during the initial 45 days or so, I was focused on contacting them to discuss a settlement, and to begin to learn how to properly initiate a private arbitration case. 

This is just silly, and wasting the court's time. The Plaintiff still lacks jurisdiction as the Court has ordered private arbitration and Arizona state law supports this. 

I would like to response to this nonsense immediately, but would love to hear any thoughts on proper strategy or verbiage. Also, I have been sent a bill by JAMS for $250, and I'm now hesitant to pay it in the event this crazy MSJ is granted! 

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18 hours ago, Bulldoger said:

  Questions: did court order Arbitration or just agreed to stay case? 

If order what does it say and did you comply? 

 

 

Yes, the court ordered arbitration. 

The order says:
On XXXX date, the Defendant filed a motion requesting the following relief: To compel private/contractual arbitration and dismiss, or in the alternative, to stay the proceeding pending arbitration. The Plaintiff filed a response to the motion on XXXX date. The Court, has considered that which has been submitted by the parties. IT IS ORDERED Granting said motion. It is further ordered to compel arbitration. 

I did comply. I filed for arbitration exactly 80 days from the day the order was signed, after contacting the Defendant first via email and then after receiving no response, again via email, this time receiving a reply telling me I had to call, and then again via phone two more times to discuss a settlement.

Again, in the Plaintiff's response to my motion to compel, they stated they have no issue with arb, and would prefer to stay for a reasonable period of 90 days in lieu of dismissal. contrary to their reply to my response to their MSJ, arbitration is NOT untimely. 

 

 

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2 hours ago, Bulldoger said:

File a  Response to Plaintiff response laying out how you complied with order and case currently in arbitration.  

Thanks, I will do that now. Should I mention  the part about how the Plaintiff's original response to the granted motion (to compel) indicated that they suggested a reasonable 90-day stay, and not 60-days as they are now mentioning in their reply? 

And is it a good idea to include as exhibits the printouts of the two emails I sent them to discuss a settlement? (they claimed in their reply that I dind't try to contact them, which is false). 

Finally, what is this response actually called? "RESPONSE TO PLAINTIFF'S REPLY TO RESPONSE TO MOTION FOR SUMMARY JUDGMENT"? (Kidding, but this seems complicated). or "RESPONSE IN SUPPORT OF PREVIOUS RESPONSE TO MOTION FOR SUMMARY JUDGMENT"? 

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