(Arbitration) Pop Quiz, Hot Shot!

This would be a good question for a law school exam -- do you think Judge Scola should enforce an arbitration agreement if:
Between the initiation of this lawsuit and the Defendants’ invocation of the right to arbitrate, the Defendants answered the Complaint and Amended Complaint, responded to Plaintiff’s Statement of FLSA Claim, provided mandatory Rule 26 disclosures, propounded discovery requests upon the Plaintiff, responded to Plaintiff’s discovery requests, took her deposition, participated in discovery motions practice, obtained additional time to schedule depositions and complete discovery, and obtained an extension of the trial date.

But the client's records were really messed up, Your Honor:
It is no answer, either, to say that Defendants did not know about the agreement until three weeks before moving to compel arbitration. See Plows, 812 F. Supp. 2d at 1066; Ritzel Commc’ns, Inc., 989 F.2d at 969. That they were apparently subjectively unaware of where the arbitration agreement was located, and did not in fact find it until they undertook a paper file audit in connection with an unrelated case some seven months after this case began, does not help their argument. The fact that Defendants’ files were disorganized and the form was not where it was supposed to be is no excuse. It does not reflect diligence.
It reflects that your case will not be going to arbitration.


  1. Can't pull one over on Bob.

  2. Great risk management. Not. P.S. liked the part of the order that talks about one party reaching out to the other. that is such a repulsive phrase.


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