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Critique Motion for Clarification for "Trial" rather than honoring MTC Arbi

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debtfree2b:
I would appreciate any critique of a Motion for Clarification. Judge granted my MTC Arb but also required a pretrial conference to attempt to find a resolution. Judge was absent that day and Judge pro Tempore was there but in the end didn't even know what JAMS or AAA was. Clerk believed the court was not subject to arbitration and scheduled a Trial for our next step. 

I am considering whether I reference AZ laws on arbitration or just keep it simple.

**************
Comes now Defendant, xyz, pro se, and files this Motion for Clarification of scheduled “Trial” as scheduled by Judge Pro Tempore and Clerk in lieu of staying proceedings as requested, in granted Motion to Compel Arbitration, and states as follows:

That on or about xx, 2012, Plaintiff filed its Complaint against Defendant.


That on or about xx, 2012, Defendant’s Motion to Compel Arbitration and to stay these proceedings pending the outcome of private contractual arbitration was granted by the Honorable [Judge's name].

That on or about xx, 2012 Defendant and Plaintiff participated in a required pretrial conference as requested by the Honorable [Judge's name]. Said Conference was overseen by Judge Pro Tempore.


During the pretrial conference, no resolution was reached between the parties. 


Upon concluding the pretrial conference, the Judge Pro Tempore contacted the Court Clerk to determine how to proceed due to the previously granted Motion to Compel Arbitration.  During the discussion between Clerk, Judge Pro Tempore, Defendant and Plaintiff, Defendant stated a belief that next steps were for Plaintiff to file with JAMS as requested in granted Motion to Compel Arbitration.
  

The Judge Pro Tempore stated that he was unfamiliar with JAMS or AAA and Plaintiff did not offer any additional clarification regarding private arbitration forums despite the fact that Plaintiff informed Defendant during the pretrial conference negotiations of the costs and cons of proceeding with private arbitration.


The Court Clerk scheduled a “Trial” for xx, 2012 despite Defendant’s belief that this matter has been stayed pending Private Contractual Arbitration. Clerk stated, “This court doesn’t have arbitration.”


Plaintiff stated in Plaintiff’s Initial Rule 26.1 Disclosure Statement that their exhibits include “(b) Application/Agreement for Credit”. To date, Plaintiff has failed to produce the alleged Contract despite request for them to do so in the granted Motion to Compel Arbitration which would clarify the Arbitration Clause applicable to this matter.


The Arbitration Clause as it exists in the GE Capital Retail Bank Credit Card Agreement currently governing WorldMarket (GE Capital Retail Bank) credit cards as offered on WorldMarket.com states in part:


--- Quote ---“How to start an arbitration, and the arbitration process


The party who wants to arbitrate must notify the other party in writing. This notice can be given after the beginning of a lawsuit or in papers filed in the lawsuit...The party seeking arbitration must select an arbitration administrator, which can be either the American Arbitration Association (AAA) .... or JAMS.... If neither administrator is able or willing to handle the dispute, then the court will appoint an arbitrator.


If a party files a lawsuit in court asserting claim(s) that are subject to arbitration and the other party files a motion with the court to compel arbitration, which is granted, it will be the responsibility of the party asserting the claim(s) to commence the arbitration proceeding...”

--- End quote ---

Furthermore, Defendant requested JAMS as the arbitration administrator in the granted Motion to Compel Arbitration.

WHEREFORE, Defendant moves this Honorable Court to cancel the “Trial” as scheduled by the Court Clerk and uphold the granted Motion to Compel Arbitration and thus stay these proceedings pending the outcome of private contractual arbitration.

howucantoo:

--- Quote from: debtfree2b on August 06, 2012   08:58:06 AM ---I would appreciate any critique of a Motion for Clarification. Judge granted my MTC Arb but also required a pretrial conference to attempt to find a resolution. Judge was absent that day and Judge pro Tempore was there but in the end didn't even know what JAMS or AAA was. Clerk believed the court was not subject to arbitration and scheduled a Trial for our next step. 

I am considering whether I reference AZ laws on arbitration or just keep it simple.

**************
Comes now Defendant, xyz, pro se, and files this Motion for Clarification of scheduled “Trial” as scheduled by Judge Pro Tempore and Clerk in lieu of staying proceedings as requested, in granted Motion to Compel Arbitration, and states as follows:

That on or about xx, 2012, Plaintiff filed its Complaint against Defendant.


That on or about xx, 2012, Defendant’s Motion to Compel Arbitration and to stay these proceedings pending the outcome of private contractual arbitration was granted by the Honorable [Judge's name].

That on or about xx, 2012 Defendant and Plaintiff participated in a required pretrial conference as requested by the Honorable [Judge's name]. Said Conference was overseen by Judge Pro Tempore.


During the pretrial conference, no resolution was reached between the parties. 


Upon concluding the pretrial conference, the Judge Pro Tempore contacted the Court Clerk to determine how to proceed due to the previously granted Motion to Compel Arbitration.  During the discussion between Clerk, Judge Pro Tempore, Defendant and Plaintiff, Defendant stated a belief that next steps were for Plaintiff to file with JAMS as requested in granted Motion to Compel Arbitration.
  

The Judge Pro Tempore stated that he was unfamiliar with JAMS or AAA and Plaintiff did not offer any additional clarification regarding private arbitration forums despite the fact that Plaintiff informed Defendant during the pretrial conference negotiations of the costs and cons of proceeding with private arbitration.


The Court Clerk scheduled a “Trial” for xx, 2012 despite Defendant’s belief that this matter has been stayed pending Private Contractual Arbitration. Clerk stated, “This court doesn’t have arbitration.”


Plaintiff stated in Plaintiff’s Initial Rule 26.1 Disclosure Statement that their exhibits include “(b) Application/Agreement for Credit”. To date, Plaintiff has failed to produce the alleged Contract despite request for them to do so in the granted Motion to Compel Arbitration which would clarify the Arbitration Clause applicable to this matter.


The Arbitration Clause as it exists in the GE Capital Retail Bank Credit Card Agreement currently governing WorldMarket (GE Capital Retail Bank) credit cards as offered on WorldMarket.com states in part:


Furthermore, Defendant requested JAMS as the arbitration administrator in the granted Motion to Compel Arbitration.

WHEREFORE, Defendant moves this Honorable Court to cancel DISMISS the “Trial” as scheduled by the Court Clerk and uphold the granted Motion to Compel Arbitration and thus stay these proceedings pending the outcome of private contractual arbitration.

--- End quote ---


I would use : Arbitration pursuant to the terms and conditions of the GE Cardmember agreement and Federal Arbitration Act,(9 U.S.C. §1-16(2006).
AT&T Mobility v. Concepcion, et al. (563 U.S.Ct. SCOTUS, 09–893, (June, 2, 2011); The U.S. Supreme Court held that arbitration agreement is a matter of contract. (Moses H. Cone Memorial Hospital v. Mercury Constr. Corp.,(460 U.S. 1, 24(1983). (Rent-A-Center, West, Inc. v. Jackson 130 S. Ct. 2772, 561 US, 177 L. Ed. 2d 403 – [Slip op 2010]), mandating Courts to place arbitration clauses on an equal footing to any other contract and to enforce it
according to their terms.

debtfree2b:
Great point! I had those mentioned in the original MTC but should reintroduce those. Appreciate the feedback!

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