Motion to Compel Arbitration and Stay Proceedings

MOTION TO COMPEL ARBITRATION AND STAY PROCEEDINGS

CAPTION

IN THE [________________________________] COURT

OF THE [____] JUDICIAL DISTRICT / CIRCUIT

IN AND FOR [________________________________] COUNTY, STATE OF [________________________________]

NOTICE OF MOTION

TO THE COURT AND ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE that on [__/__/____], at [____] a.m./p.m., or as soon thereafter as the matter may be heard, in Department/Courtroom [____] of the above-entitled Court, located at [________________________________], [________________________________] ("Moving Party") will and hereby does move the Court for an order:

1. Compelling [________________________________] ("Opposing Party") to submit the claims asserted in this action to binding arbitration pursuant to the parties' arbitration agreement; and

2. Staying all proceedings in this action pending completion of arbitration.

This Motion is brought pursuant to the Federal Arbitration Act, 9 U.S.C. §§ 3–4 [and/or applicable state arbitration statute], and is based on this Notice of Motion and Motion, the attached Memorandum of Points and Authorities, the Declaration of [________________________________] (with attached arbitration agreement), all pleadings and papers on file in this action, and such oral argument as the Court may permit at the hearing.

CERTIFICATE OF CONFERRAL (MEET AND CONFER)

The undersigned counsel certifies that, prior to filing this Motion, counsel for Moving Party conferred with counsel for the opposing party(ies) in a good-faith effort to resolve or narrow the issues presented in this Motion, as required by applicable local rules and court orders.

☐ The parties were unable to reach agreement on the relief sought herein.

☐ Opposing counsel [________________________________] indicated that the opposing party:

• ☐ Opposes this Motion
• ☐ Does not oppose this Motion
• ☐ Takes no position on this Motion

☐ Despite reasonable and good-faith efforts, Moving Party's counsel was unable to confer with opposing counsel. The efforts made were as follows: [________________________________]

Date of Conferral: [__/__/____]

Method of Conferral: ☐ Telephone ☐ In Person ☐ Video Conference ☐ Written Correspondence

MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION

The parties to this action are bound by a valid and enforceable arbitration agreement that covers the disputes at issue. Under both federal and state law, arbitration agreements must be enforced according to their terms. Moving Party respectfully requests that the Court compel arbitration and stay this action pending the arbitration's conclusion.

II. STATEMENT OF FACTS

1. On or about [__/__/____], the parties entered into a [________________________________] (the "Agreement"). A true and correct copy of the Agreement is attached as Exhibit [____] to the Declaration of [________________________________].

2. Section [____] of the Agreement contains an arbitration clause that provides, in relevant part:

"[________________________________]"

[Quote the full text of the arbitration clause]

3. The arbitration clause designates [________________________________] [e.g., the American Arbitration Association (AAA), JAMS, or other arbitral forum] as the administering body and specifies that arbitration shall be conducted pursuant to [________________________________] [e.g., AAA Commercial Arbitration Rules].

4. On [__/__/____], Plaintiff filed the Complaint in this action, asserting claims for [________________________________].

5. Each of Plaintiff's claims arises out of or relates to the Agreement and is therefore within the scope of the arbitration clause.

6. Moving Party has not waived its right to arbitrate. [________________________________] [Describe actions taken to preserve the right, including any demand for arbitration filed.]

III. LEGAL STANDARD

A. The Federal Arbitration Act

The Federal Arbitration Act ("FAA"), 9 U.S.C. §§ 1–16, establishes a strong federal policy favoring arbitration. Section 2 of the FAA provides that written arbitration agreements "shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C. § 2.

Section 3 of the FAA requires that upon application of a party, and upon being satisfied that the issue in the pending suit is referable to arbitration, the court "shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement." 9 U.S.C. § 3.

Section 4 of the FAA provides that a party aggrieved by the failure of another to arbitrate may petition the court "for an order directing that such arbitration proceed in the manner provided for in such agreement." 9 U.S.C. § 4. Upon being satisfied "that the making of the agreement for arbitration or the failure to comply therewith is not in issue, the court shall make an order directing the parties to proceed to arbitration."

B. The Two-Part Test for Compelling Arbitration

Courts apply a two-part test when evaluating motions to compel arbitration:

1. Whether a valid arbitration agreement exists between the parties; and
2. Whether the dispute falls within the scope of that agreement.

See Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983). "Any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration." Id. at 24–25.

C. Federal Policy Favoring Arbitration

The Supreme Court has repeatedly emphasized that the FAA embodies a "liberal federal policy favoring arbitration agreements." AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2011). Courts must "rigorously enforce" arbitration agreements according to their terms. American Express Co. v. Italian Colors Restaurant, 570 U.S. 228, 233 (2013). The FAA preempts state laws that discriminate against arbitration, whether facially or as applied. Concepcion, 563 U.S. at 341.

D. Stay Requirement Under Section 3

In Smith v. Spizzirri, 601 U.S. 472 (2024), the Supreme Court held that when a court finds that a lawsuit involves an arbitrable dispute and a party has requested a stay pending arbitration under 9 U.S.C. § 3, the court must stay the action rather than dismiss it. The word "shall" in Section 3 creates a mandatory obligation.

IV. ARGUMENT

A. A Valid Arbitration Agreement Exists

The arbitration agreement at issue satisfies all requirements for a valid and enforceable contract:

1. Mutual Assent

[________________________________] [Describe how the parties manifested their assent to the arbitration clause — e.g., signatures on the agreement, click-through acceptance, etc.]

2. Consideration

[________________________________] [Identify the consideration supporting the arbitration agreement — e.g., mutual promises to arbitrate, the underlying contract consideration, etc.]

3. Written Agreement

The arbitration clause is contained in a written agreement, as required by 9 U.S.C. § 2. A true and correct copy is attached as Exhibit [____].

4. Interstate Commerce

The Agreement involves interstate commerce, bringing it within the scope of the FAA, because [________________________________].

B. The Dispute Falls Within the Scope of the Arbitration Agreement

The arbitration clause in this case covers "[________________________________]" [quote the scope language]. Plaintiff's claims for [________________________________] arise directly out of or relate to the Agreement and are therefore within the scope of the clause.

Courts construe the scope of arbitration agreements broadly. A clause covering disputes "arising out of or relating to" a contract encompasses "every dispute between the parties having a significant relationship to the contract." Simula, Inc. v. Autoliv, Inc., 175 F.3d 716, 721 (9th Cir. 1999).

Each of Plaintiff's claims falls within this scope because:

• Count I ([________________________________]): [________________________________]
• Count II ([________________________________]): [________________________________]
• Count III ([________________________________]): [________________________________]

C. No Defense to Enforcement Applies

1. The Agreement Is Not Unconscionable

[________________________________] [Address any potential unconscionability arguments — both procedural and substantive unconscionability]

Procedural unconscionability requires a showing of "unfair surprise" or "oppression" in the formation process. Here, [________________________________].

Substantive unconscionability requires terms that are "overly harsh" or "one-sided." Here, [________________________________].

2. Moving Party Has Not Waived the Right to Arbitrate

Waiver of the right to arbitrate requires a showing that the party (1) knew of an existing right to compel arbitration, (2) acted inconsistently with that right, and (3) prejudiced the other party by those inconsistent acts. Morgan v. Sundance, Inc., 596 U.S. 411 (2022) (eliminating the prejudice requirement in some circuits; courts now focus on whether the party's conduct was inconsistent with the right to arbitrate).

Here, Moving Party has not waived its right to arbitrate because [________________________________]. This Motion was filed [____] days after the Complaint was served, and Moving Party has not engaged in extensive litigation conduct inconsistent with its arbitration rights.

3. No Other Contract Defense Applies

[________________________________] [Address any other potential defenses: fraud in the inducement of the arbitration clause specifically, illegality, duress, etc.]

D. The Court Should Stay This Action Pending Arbitration

Under 9 U.S.C. § 3, once the Court determines that the dispute is arbitrable, the Court "shall" stay the proceedings. Smith v. Spizzirri, 601 U.S. 472 (2024). A stay, rather than dismissal, is mandatory when requested.

V. STATE-SPECIFIC AUTHORITIES AND VARIATIONS

California

The California Arbitration Act ("CAA"), Cal. Code Civ. Proc. §§ 1281–1281.99, governs arbitration agreements in intrastate matters. Cal. Code Civ. Proc. § 1281.2 requires the court to order arbitration "if it determines that an agreement to arbitrate the controversy exists," unless it determines grounds for revocation exist. The petition to compel arbitration is governed by Cal. Code Civ. Proc. § 1281.2.

California Practitioners: Under Cal. Code Civ. Proc. § 1281.2(c), a court may refuse to compel arbitration where there is a possibility of conflicting rulings on common issues of law or fact in a related case with a third party not bound by the arbitration agreement. The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (9 U.S.C. §§ 401–402) may apply. Cal. Code Civ. Proc. § 1281.97 requires payment of arbitration fees within 30 days or face waiver. File a petition to compel arbitration (rather than a "motion") in California state court.

New York

New York's arbitration provisions are codified at C.P.L.R. §§ 7501–7514. C.P.L.R. § 7503(a) provides that a party may apply to compel arbitration where there is no substantial question whether a valid agreement to arbitrate was made or has been complied with. The application must be served in the same manner as a summons or by personal service.

New York Practitioners: Under C.P.L.R. § 7503(c), an application to stay arbitration must be made within 20 days after service of the demand for arbitration. C.P.L.R. § 7502(c) allows the court to grant provisional remedies in connection with an arbitrable controversy. New York applies the general unconscionability analysis under N.Y. U.C.C. § 2-302.

Texas

The Texas Arbitration Act ("TAA"), Tex. Civ. Prac. & Rem. Code §§ 171.001–171.098, provides that a written arbitration agreement is valid and enforceable if the agreement is to arbitrate a controversy that exists at the time of the agreement or arises between the parties after the date of the agreement. Tex. Civ. Prac. & Rem. Code § 171.001.

Texas Practitioners: Under Tex. Civ. Prac. & Rem. Code § 171.021, a court shall order the parties to arbitrate on application of a party showing an agreement to arbitrate and the opposing party's refusal to arbitrate. An order denying a motion to compel arbitration is immediately appealable under Tex. Civ. Prac. & Rem. Code § 171.098. Note that the TAA excludes certain claims involving personal injury or wrongful death. Tex. Civ. Prac. & Rem. Code § 171.002.

Florida

The Florida Arbitration Code, Fla. Stat. §§ 682.01–682.22 (revised in 2013 to adopt the Revised Uniform Arbitration Act), governs arbitration agreements. Fla. Stat. § 682.03 provides that an agreement to arbitrate is valid, enforceable, and irrevocable except upon grounds that exist for the revocation of a contract.

Florida Practitioners: Under Fla. Stat. § 682.03(1), the court decides whether an agreement to arbitrate exists or a controversy is subject to an agreement to arbitrate, unless the parties have agreed that an arbitrator shall decide such issues. Fla. Stat. § 682.03(6) requires the court to stay proceedings if it orders arbitration. An order denying a motion to compel arbitration is immediately appealable under Fla. R. App. P. 9.130(a)(3)(C)(iv).

VI. REQUESTED RELIEF

WHEREFORE, Moving Party respectfully requests that this Court enter an order:

1. Compelling [________________________________] to submit all claims asserted in the Complaint to binding arbitration before [________________________________] [arbitral forum] in accordance with the arbitration agreement;

2. Staying all proceedings in this action pending the completion of arbitration, as required by 9 U.S.C. § 3;

3. Directing the parties to file periodic joint status reports regarding the status of the arbitration every [____] days;

4. Retaining jurisdiction for purposes of enforcing the arbitration award or any other post-arbitration proceedings;

5. Granting such other and further relief as the Court deems just and proper.

CONCLUSION

The parties entered into a valid and enforceable arbitration agreement that covers the disputes at issue in this action. Under the FAA and controlling precedent, the Court must enforce the agreement and compel arbitration. No defense to enforcement has been or can be established. Moving Party respectfully requests that the Court grant this Motion, compel arbitration, and stay the proceedings.

Respectfully submitted,

Date: [__/__/____]

________________________________________
[________________________________]
Attorney for [________________________________]
[________________________________] (Firm Name)
[________________________________] (Address)
[________________________________] (City, State, ZIP)
Telephone: [________________________________]
Facsimile: [________________________________]
Email: [________________________________]
Bar No.: [________________________________]

DECLARATION IN SUPPORT OF MOTION TO COMPEL ARBITRATION

I, [________________________________], declare as follows:

1. I am [________________________________] [describe relationship to the case — e.g., a party, an officer of a party, or counsel of record]. I make this declaration based on personal knowledge, and if called as a witness, I could and would testify competently to the facts stated herein.

2. On or about [__/__/____], the parties entered into the [________________________________] (the "Agreement"). Attached hereto as Exhibit A is a true and correct copy of the Agreement.

3. Section [____] of the Agreement contains an arbitration clause that requires the parties to arbitrate disputes arising out of or relating to the Agreement.

4. The Agreement was executed by:
   - [________________________________] on behalf of [________________________________] on [__/__/____]
   - [________________________________] on behalf of [________________________________] on [__/__/____]

5. The Agreement involves interstate commerce because [________________________________].

6. On [__/__/____], Plaintiff filed the Complaint asserting claims for [________________________________]. Each of these claims arises out of or relates to the Agreement.

7. On [__/__/____], Moving Party demanded arbitration by [________________________________] [describe demand sent to opposing party and/or arbitral forum]. Attached hereto as Exhibit B is a true and correct copy of the demand for arbitration.

8. ☐ Opposing Party has refused to participate in arbitration.
   ☐ Opposing Party has not responded to the demand for arbitration.

9. Moving Party has not waived its right to arbitrate. Since the filing of this action, Moving Party has taken only the following litigation steps: [________________________________].

I declare under penalty of perjury under the laws of the State of [________________________________] and the United States of America that the foregoing is true and correct.

Executed on [__/__/____], at [________________________________].

________________________________________
[________________________________]
Declarant

CERTIFICATE OF SERVICE

I, [________________________________], hereby certify that on [__/__/____], I served a true and correct copy of the foregoing MOTION TO COMPEL ARBITRATION AND STAY PROCEEDINGS, together with all supporting documents, on the following parties and/or their counsel of record by the method(s) indicated below:

I declare under penalty of perjury under the laws of [________________________________] that the foregoing is true and correct.

Executed on [__/__/____], at [________________________________].

________________________________________
[________________________________]

[PROPOSED] ORDER GRANTING MOTION TO COMPEL ARBITRATION AND STAY PROCEEDINGS

IN THE [________________________________] COURT

OF THE [____] JUDICIAL DISTRICT / CIRCUIT

IN AND FOR [________________________________] COUNTY, STATE OF [________________________________]

ORDER GRANTING MOTION TO COMPEL ARBITRATION AND STAY PROCEEDINGS

THIS MATTER having come before the Court on the Motion to Compel Arbitration and Stay Proceedings filed by [________________________________], and the Court having considered the Motion, the Memorandum of Points and Authorities, the Declaration of [________________________________] (with attached exhibits), the opposition (if any), the reply (if any), the arguments of counsel, and the complete record in this matter, and good cause appearing therefor;

THE COURT FINDS:

1. The parties entered into a valid and enforceable arbitration agreement.
2. The disputes at issue in this action fall within the scope of the arbitration agreement.
3. No defense to enforcement of the arbitration agreement has been established.
4. Under 9 U.S.C. § 3 and Smith v. Spizzirri, 601 U.S. 472 (2024), a stay of proceedings is mandatory.

IT IS HEREBY ORDERED:

1. The Motion to Compel Arbitration is GRANTED.

2. The parties shall submit all claims asserted in the Complaint to binding arbitration before [________________________________] in accordance with the terms of the arbitration agreement.

3. All proceedings in this action are STAYED pending the completion of arbitration.

4. The parties shall file joint status reports regarding the arbitration every [____] days, beginning [__/__/____].

5. Within [____] days of the conclusion of the arbitration, the parties shall notify the Court and advise whether any further proceedings are necessary.

6. This Court retains jurisdiction to enforce the arbitration award and for any post-arbitration proceedings.

IT IS SO ORDERED.

Date: [__/__/____]

________________________________________
Honorable [________________________________]
Judge, [________________________________] Court

SOURCES AND REFERENCES

• 9 U.S.C. §§ 2–4 — Federal Arbitration Act (https://www.law.cornell.edu/uscode/text/9)
• Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1 (1983)
• AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011)
• American Express Co. v. Italian Colors Restaurant, 570 U.S. 228 (2013)
• Smith v. Spizzirri, 601 U.S. 472 (2024) (https://www.supremecourt.gov/opinions/23pdf/22-1218_5357.pdf)
• Morgan v. Sundance, Inc., 596 U.S. 411 (2022)
• Cal. Code Civ. Proc. §§ 1281–1281.99 (California Arbitration Act)
• N.Y. C.P.L.R. §§ 7501–7514 (New York Arbitration)
• Tex. Civ. Prac. & Rem. Code §§ 171.001–171.098 (Texas Arbitration Act)
• Fla. Stat. §§ 682.01–682.22 (Florida Arbitration Code)
• Wiggin and Dana LLP, Compelling Arbitration (https://www.wiggin.com/publication/compelling-arbitration/)