I am not a lawyer .. this is geared towards Arizona ... this has been granted twice in arizona ... but both were stayed .. not dismissed .. .
now that I look at it .. it might be geared too much towards federal law
IN THE XXXXXXXXXXXXX COURT OF THE STATE OF XXXXXXXXXX
IN AND FOR THE COUNTY OF XXXXXXXX
) Case No. XXXXXXXX
Plaintiff ) DEFENDANTS MOTION TO COMPEL
Vs. ) DEFENDANT
Me and J Doe )
Defendant Pro Se )
Comes now the Defendant XXXXXXXXXX Pro Se hereby respectfully requests the court to compel private / contractual arbitration as to the XXXXXXX agreement.
Defendant hereby move to Dismiss Plaintiff XXXXXXXXXXXX Complaint pursuant to Arizona Rule of Civil Procedure 12 (b)(1) or in the alternative to compel arbitration and stay these proceedings pursuant to the Federal Arbitration Act, 9 U.S.C. 1 Points and Authorities submitted herewith, and state as follows:
1. The Defendant and XXXXXX entered into a written agreement wherein they agreed to arbitrate all disputes arising between them and us attached as exhibit (a). The Parties agreed that no courts, including this Court, would have jurisdiction to hear their disputes.
Accordingly, the court should dismiss Plaintiff’s Complaint pursuant to Rule 12 (b)(1) of Az Rules of Civil Procedure.
2. In the alternative, the Court should compel arbitration and stay these proceedings pursuant to the FAA. The parties’ agreement states that the FAA governs their disputes. Where a party refuses to arbitrate pursuant to the terms of an arbitration agreement, the FAA provides that the Court should compel arbitration and stay court proceedings.
WHEREFORE, The Defendants respectfully request that this Court dismiss XXXXXX Complaint pursuant to Rule 12(b)(1) or in the alternative compel arbitration and stay these proceedings pursuant to the FAA.
On XXXXX date 2009 Plaintiff filed a complaint on the Defendant and had mailed him a copy of the summons and complaint on XXXXX date 2010. In the Complaint was for an alleged breach of contract – Deficiency. The Defendant feels his rights were violated by state and federal laws by the Plaintiff and Plaintiffs council. The Defendant wishes to resolve this matter privately in Private / contractual arbitration.
I. The Court should DISMISS PLAINTIFF’S complaint because arbitration is the
is the exclusive remedy for these claims.
Pursuant to the parties’ contract, this Court cannot be a forum for any disputes between the parties. Under both Federal and Arizona Law, an action should be dismissed where a party contractually agrees exclusively to arbitration. See, e.g., Simula, Inc. v. Autoliv, Inc 175 F. 3d 716, 716, 726 (9th Cir. 1999) (affirming district courts order compelling arbitration And dismissing complaint); Sparling v. Hoffman Constr. Co., Inc 864 F2d 635, 638 (9th Cir. 1988) (affirming dismissal of claims were all claims were subject to arbitration); see also
Martin Marietta Aluminum, Inc, v. General Electric Co.., 586 F. 2d 143 (9th Cir. 1978) (affirming grant of summary judgment where all claims to court were barred by arbitration clause); Payne v. Pennzoil Corp., 138 Ariz. 52, 53-54, 56 672 P.2d 1322, 1323-24, 1326 (Ariz. Ct. App. 1983) (affirming trial court’s grant of motion to dismiss “ based on lack of subject matter jurisdiction and failure to state a claim” under Ariz. R. Civ. P. 12 (b)) where arbitration provided for exclusive remedy.
Because XXXXXX Bank’s agreement with the Defendant clearly state that all disputes, must be resolved through arbitration and cannot be brought in court, this Court should dismiss Plaintiffs Complaint and allow parties to arbitrate their disputes in accordance with their agreement.
Congress enacted the Federal arbitration act (F.A.A.) to reverse the long standing judicial hostility toward arbitration agreements “and to place arbitration agreements upon the same footing as other contracts.”Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20,24 (1991).
The FAA establishes a liberal policy favoring arbitration agreements and requires courts to enforce rigorously private arbitration agreements according to their terms. Volt Info Scis., Inc. v. Board of Trustees, 489 U.S. 468, 479 (1989). A Court should not strike down an arbitration agreement except in those very limited circumstances where the arbitration agreement at issue is unenforceable on a ground that exists at law or equity for any contract, such as fraud, duress, or unconscionability. Doctor’s Assocs.,Inc., v. Casarotto,517 U.S. 681, 687 cert. denied, 534 U.S. 1133 (2002). Courts should give deference to these
Congressional findings and directives when determining the enforceability of the parties’ arbitration agreements. See Simula, 175 F. 3d at 719 (holding that the FAA “reflects Congress intent to provide for the enforcement of arbitration agreements within the full reach of the Commerce Clause”)
The FAA Governs the Arbitration Agreement in this Case.
The FAA governs whether the parties’ Arbitration Provision is enforceable. On Page 2 of exhibit (A) of the Parties’ Agreement provides: “This Arbitration Provision is made pursuant to a transaction involving interstate commerce and shall be governed by the FAA.” The FAA
governs arbitration agreements in contracts involving transactions in interstate commerce. 9 U.S.C 1; Moses H. Cone Mem’l Hosp. v. Mecury Constr. Corp., 460 U.S. 1, 25 n. 32 (1983). Not only does the contract containing the Arbitration Provision at issue specifically provide that the arbitration provision is made pursuant to a transaction involving interstate commerce, but also Congress intended courts to construe “commerce” as broadly as possible. Simula , 175 F. 3d at 719
Only state law contract defenses-defenses relevant to any contact can be used to challenge the enforceability of an arbitration agreement. The Supreme Court has unequivocally stated that the FAA precludes specialized scrutiny of arbitration agreements:
A court may not . . . in assessing the rights of litigants to enforce an arbitration agreement, construe that agreement in a manner different from that in which it otherwise construes non-arbitration agreements under state law. Nor may a court rely on the uniqueness of an agreement to arbitrate as a basis for a state-law holding that enforcement would be unconscionable, for this would enable the court to effect what we hold today the state legislature cannot.
Perry v. Thomas, 482 U.S. 483, 493 n.9 (1987). See also Doctor’s Assocs., 517 U.S. at 687 (“courts may not . . . invalidate arbitration agreements under state laws applicable only to arbitration provisions”); Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 24 (1991) (purpose of FAA is to “reverse the longstanding judicial hostility to arbitration agreements . . . and to place arbitration agreements upon the same footing as other contracts”); Bank One Acceptance Corp. v. Hill, 367 F.3d 426, 432 (5th Cir. 2004)(explaining that “state courts may properly strike down arbitration clauses, but they may not treat arbitration clauses differently than other contract terms”) (emphasis in original).
Claiming that the enforcement of a contractual provision will have adverse effects onsociety, i.e., allow businesses and industry to grant themselves “virtual immunity,” is
precisely the type of specialized, and non-contract based, argument prohibited under the FAA. The only public policy at issue in this case is the FAA and Arizona’s presumption in favor of arbitration.
The Arbitration Provision Does Not Violate Public Policy.
The Arbitration Provision does not violate public policy. As previously discussed, both federal and Arizona courts have expressed a public policy favoring arbitration. Volt, 489 U.S. at 475-76; City of Cottonwood, 179 Ariz. at 189. The Randolph court agreed that the Arbitration Provision does not violate public policy: [A]rbitration clauses are construed liberally and any doubts about whether a matter is subject to arbitration are resolved in favor of arbitration.” City of Cottonwood v. James L. Fann Contracting, Inc., 179 Ariz. 185, 189,
877 P. 2d 284, 288 (App. 1994).
The Defendant has already started the Process of private arbitration and enclosed as Exhibit (b) is the Demand for JAMS arbitration (one of the forums available in the contract)
Defendant therefore respectfully ask this Court to dismiss Chase Banks complaint pursuant to Rules of Civil Procedure A.R.S. Rule 12(b)1, or in alternative, to compel arbitration of Plaintiffs claims and stay these proceedings pending arbitration.
Dated this ___day of April, 2010