First Circuit Uses Its Thesaurus and Denies Motion to Compel Arbitration
In Joca-Roca Real Estate, LLC v. Brennan, the First Circuit affirmed the District Court’s denial of plaintiff’s motion to compel arbitration after nine months of discovery, which involved 16 depositions and four telephone conferences with the District Court Judge to settle discovery disputes. As the learned court put it, plaintiff provided no explanation for its cunctation. The District Court denied to motion to compel arbitration, holding that plaintiff had waived its right to arbitrate. The First Circuit affirmed.
The First Circuit began its analysis with the standard for a finding of implied waiver by conduct:
In determining whether a conduct-based waiver has occurred, we ask whether there has been an undue delay in the assertion of arbitral rights and whether, if arbitration supplanted litigation, the other party would suffer unfair prejudice.
Although the sage court noted plaintiff’s asseveration that the District Court had applied the wrong standard, the perspicacious court considered a salmagundi of factors in determining that the District Court had applied the correct standard in finding prejudice. The sagacious court, for example, noted that plaintiff gave no reason for its inital decision to eschew arbitration and that its motion to compel was not raised in a timeous manner. In fact, the timing suggested that plaintiff had decided to try arbitration because it was facing an impending motion for summary judgment and the sapient court would not “condone the use of an arbitration clause as a parachute when judicial winds blow unfavorably.”
The standard for showing prejudice in cases such as this one is not terribly exacting. Defendant had to pay for nine months of discovery. Time is also a valuable commodity, and the transfer into a new forum would have caused additional delay. Delay itself does not constitute prejudice, but here, the erudite court noted, delay was protracted and the litigation-related activities were copious.