Topic: Cach LLC sueing us in Arizona for ~20,000

[excelsior]

I'd just skip the service issue and go straight to a motion to compel arbitration.  That will take care of the court case.

+1.  Don't waste time with service issues, because the Court will give CACH the benefit of the doubt.  I would file a 12b1 and get it out of court asap. 

[coltfan1972]

How do we enforce the arbitration clause?

Read the arbitration forum.  That question has been answered hundreds of times in numerous posts.

You're going to have zero luck getting somebody on this board to do your work for you, especially Bruno.   If you want to read and study for yourself, we will spend numerous hours assisting and answering questions, but you've come to the wrong board trying to get somebody to practice law for you.

" another nationally recognized, independent arbitration organization that uses a similar code of procedure."

In Arizona, does court arbitration fall under this? If not, why? Thank you.

First, if you had read the arbitration forum you would know that the very last thing in the world you want is court arbitration and you want private arbitration.   

You would also know that court arbitration does not use a "similar code of procedure" that private arbitration uses.   That code of procedure that is not similar to court is what you want.

Start asking questions that make it obvious you've done research and you will find a ton of support from the board, continue to ask others to do your work and you'll find your questions unanswered and soon a judgement against you.   

[Bruno the JDB Killer]

" another nationally recognized, independent arbitration organization that uses a similar code of procedure."

In Arizona, does court arbitration fall under this? If not, why? Thank you.


Nope. Arizona law is only good in Arizona. It is not nationally recognized. It is not exactly independent, either. The key word in any arb clause is "private." That means non-court.

[trick]

I agree with your strategy, except it's still the court just rubber stamping a dismissal if the Plaintiff asks.   

You're correct they can't dismiss as a matter of right with no court order after a response, but the Defendant not agreeing just means five more minutes of work to draft the Order for the court to sign.

After the court signs the dismissal order (which they will do 99.999% of the time), the court will then deny the Defendant's motion, not on the merits of the motion but as moot. 

Again, I agree with the strategy as to narrow the scope of the Plaintiff's next move, but at this early stage in the action a Plaintiff wanting a dismissal w/o prejudice is going to get it.

They wont rubber stamp it because most court rules call for the side which proposes a motion, once a response or motion is filed to gain concurrence from the opposite side.  If concurrence is not give a hearing will be granted.  The motion under 12 calls for a dismissal but also asks for the court to compel arbitration.  What can happen and does happen once in a while is that the Court will order arbitration and dismiss the lawsuit.   It will give you a res juricada argument in the future should it get refiled.

[Bruno the JDB Killer]

You are stuck on federal rules, which do not apply in Arizona state court. I posted the applicable rule. They can dismiss any time they want unless an answer or MSJ has been filed. Obviously the MSJ would not be theirs. So far, nothing has been filed by OP. His best shot is a MTC in which case the rule requires both parties to sign a dismissal. That's where the OP get leverage, make it with prejudice.

For 20K in Arizona kangaroo Court, I would expect some resistance.

[BellEbutton]

You are stuck on federal rules, which do not apply in Arizona state court. I posted the applicable rule. They can dismiss any time they want unless an answer or MSJ has been filed. Obviously the MSJ would not be theirs. So far, nothing has been filed by OP. His best shot is a MTC in which case the rule requires both parties to sign a dismissal. That's where the OP get leverage, make it with prejudice.

For 20K in Arizona kangaroo Court, I would expect some resistance.

A MTC is NOT an answer to the complaint.   What rule says the filing of a MTC arbitration would prevent the plaintiff from voluntarily dismissing without anyone's approval?

[Bruno the JDB Killer]

What rule says the filing of a MTC arbitration would prevent the plaintiff from voluntarily dismissing without anyone's approval?


or (B) by order of the court pursuant to a stipulation of dismissal signed by all parties who have appeared in the action.


The rule does not specifically require this. (Coltfan will be very happy now) I was thinking (I know, a very bizarre thing for Bruno to do without help from Arkansas) that the language "Stipulation of dismissal signed by all parties" might be up for a hearing because the motion before the court is dispositive and may require oral argument. Wait until you see what I PM you. you'll pay for this. LOL

[siskelsghost]

A dismissal without prejudice after a Stay/MTC arbitration is not a bad thing.

I would take that on a 20k debt every time.

Res Judicata prevents them from refilling.

Worst case scenario if they refile- you refile your MTC. Rinse and repeat!

Unless it's a service or procedural issue (like failure to prosecute) A dismissal without prejudice will be the end of it 99% of time.

[BellEbutton]

What rule says the filing of a MTC arbitration would prevent the plaintiff from voluntarily dismissing without anyone's approval?


or (B) by order of the court pursuant to a stipulation of dismissal signed by all parties who have appeared in the action.


The rule does not specifically require this. (Coltfan will be very happy now) I was thinking (I know, a very bizarre thing for Bruno to do without help from Arkansas) that the language "Stipulation of dismissal signed by all parties" might be up for a hearing because the motion before the court is dispositive and may require oral argument. Wait until you see what I PM you. you'll pay for this. LOL

Like you said, the rule doesn't require it.  Also, the precedent I provided shows that unless an ANSWER or MSJ is filed, the plaintiff can dismiss without the defendant's consent or an order of the court.  A 12(b) MTD or a MTC arbitration does not prevent it.

Thanks for the PM.    Sorry, that I can't seem to respond to your PM.

[coltfan1972]

If concurrence is not give a hearing will be granted.

You can't be talking federal court.   You have to bend over backwards to get a hearing for a motion for summary judgement in federal court.  Federal Courts rarely grant hearings, and they are certainly not going to grant a hearing on a voluntary motion to dismiss, unless there is a counterclaim and Rule 41 addresses that.

[CleaningUp]

...They were also supposed to mail it to us by certified mail. They never did.

How do you know that they didn't? 

How do you go about proving that they didn't to the satisfaction of the court?

[Bruno the JDB Killer]

Like you said, the rule doesn't require it.  Also, the precedent I provided shows that unless an ANSWER or MSJ is filed, the plaintiff can dismiss without the defendant's consent or an order of the court.  A 12(b) MTD or a MTC arbitration does not prevent it.

Thanks for the PM.    Sorry, that I can't seem to respond to your PM.

I was referring to ARS (Arizona) Rule 41

[trick]

You can't be talking federal court.   You have to bend over backwards to get a hearing for a motion for summary judgement in federal court.  Federal Courts rarely grant hearings, and they are certainly not going to grant a hearing on a voluntary motion to dismiss, unless there is a counterclaim and Rule 41 addresses that.

No, Im taking state courts.  Although in New Mexico District of the Federal Court system, they are pretty liberal about hearings but you must be on the fast track and in front of a magristrate. Bruno who has been to court once and practices in mock trials is talking federal court.  One of the reasons for concurance is that you can sue for a number of things in a counter claim.

[trick]

Since im in a Blizard in the High Plains of New Mexico tonight I will opine on service. 

What I have been taught an have seen is that Service is about notice.  Did you have notice that there was a legal action lodged against you.  What most people say is I wasn't properly served because of what ever reason.  The Question the Judge might ask you is "ok  Mr. Defendent, you were not served notice."  the Judge continues "If you were not served notice why did you respond to the lawsuit?"  "What cause you to think that you needed to file papers with this court?"  At that juncture the court will do one thing and that will be to grant you more time to answer.
The improper service argument is mostly if you have a default issued against you.  The Courts do not operate on a demur system anymore, its a more loose following of the rules which is labeled Judge discretion.

[coltfan1972]

Bruno who has been to court once and practices in mock trials is talking federal court.

I know for a fact Bruno has been to court twice, so I'm not sure where you're getting your misinformation.   

In 2012 he successfully plea bargained a $5.00 parking ticket down to $4.00, and in 2014 he was found guilty of jaywalking after a 90 second bench trial.