Form 7E:2 Response to Motion to Compel Arbitration

{CAPTION - FORM 1B:1}

{PARTY}'S MEMORANDUM IN RESPONSE TO
{ADVERSE PARTY}'S MOTION TO COMPEL ARBITRATION

{Party} asks the court to deny {adverse party}'s motion to compel arbitration and request to stay the lawsuit. {See O'Connor's Federal Rules, "Response to motion," ch. 7-E, §2.2, p. 512.}

A. Introduction

1. Plaintiff is {name}; defendant is {name}.

2. Plaintiff sued defendant for {state basis of suit}.

3. This case is set for {trial/hearing} on {date}.

4. {Adverse party} filed a motion to compel {party} to arbitrate {identify dispute adverse party wants arbitrated}.

B. Argument

5. Although the court may compel arbitration when a party proves that the parties entered into a valid arbitration agreement and the claim at issue falls within the scope of the agreement, this is not a case in which the court should do so. See Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83, 123 S. Ct. 588, 591 (2002); First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 943, 115 S. Ct. 1920, 1923-24 (1995). {See O'Connor's Federal Rules, "Grounds," ch. 7-E, §2.2.2, p. 512.}

6. The court should deny {adverse party}'s motion to compel arbitration because

{CHOOSE APPROPRIATE REASONS}

(A) there is no agreement to arbitrate this dispute. See First Options, 514 U.S. at 944, 115 S. Ct. at 1924; Dumais v. Am. Golf Corp., 299 F.3d 1216, 1220 (10th Cir. 2002). {Elaborate.} {See O'Connor's Federal Rules, "No agreement to arbitrate," ch. 7-E, §2.2.2(1), p. 512.}

(B) {identify federal statute or policy rendering claim nonarbitrable} renders the claim nonarbitrable. SeeAm. Bankers Ins. Co. v. Inman, 436 F.3d 490, 493 (5th Cir. 2006); Brown v. Nabors Offshore Corp., 339 F.3d 391, 392 (5th Cir. 2003). {Elaborate.} {See O'Connor's Federal Rules, "Dispute not arbitrable," ch. 7-E, §2.2.2(2), p. 512.}

(C) the contract containing the arbitration provision does not involve interstate commerce. See9 U.S.C. §§1, 2. {Elaborate.} {See O'Connor's Federal Rules, "Interstate commerce not involved," ch. 7-E, §2.2.2(3), p. 513.}

(D) arbitration will not provide remedies equal to those available in court. See Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26, 111 S. Ct. 1647, 1652 (1991); Morrison v. Circuit City Stores, Inc., 317 F.3d 646, 653 (6th Cir. 2003). {Explain, e.g., arbitration would deprive plaintiff of substantive rights available in court.} {See O'Connor's Federal Rules, "Arbitration will not provide same relief available in court," ch. 7-E, §2.2.2(4), p. 513.}

(E) {adverse party} can unilaterally modify or ignore the provisions of the arbitration agreement. See Dumais v. Am. Golf Corp., 299 F.3d 1216, 1219 (10th Cir. 2002); Floss v. Ryan's Family Steak Houses, Inc., 211 F.3d 306, 315-16 (6th Cir. 2000). {Explain, e.g., agreement allows employer to modify employment contract without notice to employee.} {See O'Connor's Federal Rules, "Defendant can modify or ignore rules," ch. 7-E, §2.2.2(5), p. 513.}

(F) {adverse party} is not a signatory to the agreement. See Westmoreland v. Sadoux, 299 F.3d 462, 465 (5th Cir. 2002). {Explain, e.g., party has not relied on terms of agreement to assert its claims against nonsignatory, party has not alleged that nonsignatory engaged in concerted misconduct relating to agreement.} {See O'Connor's Federal Rules, "Party was not signatory to arbitration agreement," ch. 7-E, §2.2.2(6), p. 513.}

(G) {adverse party} has the {exclusive right to select the potential arbitrator/discretion to disregard the arbitrator's decision}. See Murray v. United Food & Commercial Workers Int'l Un., Local 400, 289 F.3d 297, 302-03 (4th Cir. 2002). {Elaborate.} {See O'Connor's Federal Rules, "Movant can select arbitrator," ch. 7-E, §2.2.2(7), p. 513.}

(H) the arbitration agreement is unconscionable. Shroyer v. New Cingular Wireless Servs., 498 F.3d 976, 983-84 (9th Cir. 2007); see Doctor's Assocs., Inc. v. Casarotto, 517 U.S. 681, 687, 116 S. Ct. 1652, 1656 (1996). {Elaborate.} {See O'Connor's Federal Rules, "Unconscionability," ch. 7-E, §2.2.2(8)(a)[1], p. 514.}

(I) there is inadequate consideration for the arbitration agreement. Morrison v. Circuit City Stores, Inc., 317 F.3d 646, 667 (6th Cir. 2003). {Explain, e.g., there is no mutual obligation to arbitrate the claims.} {See O'Connor's Federal Rules, "Inadequate consideration," ch. 7-E, §2.2.2(8)(a)[2], p. 514.}

(J) the parties did not have a meeting of the minds on the arbitration agreement. Am. Heritage Life Ins. Co. v. Lang, 321 F.3d 533, 538-39 (5th Cir. 2003). {Elaborate.} {See O'Connor's Federal Rules, "Meeting of the minds," ch. 7-E, §2.2.2(8)(a)[3], p. 514.}

(K) the arbitration agreement requires {party} to pay arbitration fees so expensive that {he/she/it} will effectively be denied access to the arbitration forum. See Green Tree Fin. Corp. v. Randolph, 531 U.S. 79, 91-92, 121 S. Ct. 513, 522-23 (2000). {Explain, e.g., cost of arbitration is so high that party would be deterred from pursuing its claims.} {See O'Connor's Federal Rules, "Arbitration is too expensive," ch. 7-E, §2.2.2(9), p. 515.}

(L) {adverse party} has waived {his/her/its} right to arbitration by {initially pursuing litigation to resolve the claim/engaging in other acts that demonstrate a desire to resolve the dispute through litigation rather than arbitration}. See Republic Ins. Co. v. PAICO Receivables, LLC, 383 F.3d 341, 344 (5th Cir. 2004); Texaco Exploration & Prod. Co. v. AmClyde Engineered Prods. Co., 243 F.3d 906, 911 (5th Cir. 2001). {Elaborate.} {See O'Connor's Federal Rules, "Waiver," ch. 7-E, §2.2.2(10), p. 515.}

7. The court should deny {adverse party}'s request to stay the lawsuit pending resolution of the arbitration proceeding because

{CHOOSE APPROPRIATE REASONS}

(A) the claim is not referable to arbitration. 9 U.S.C. §3. {Elaborate.}

(B) {adverse party} is in default in proceeding with arbitration. 9 U.S.C. §3. {Elaborate.}

C. Conclusion

8. {Briefly summarize the response.} For these reasons, {party} asks the court to deny {adverse party}'s motion to compel arbitration and request to stay the lawsuit.