was and should be reversed for two independent reasons st sundance manifestly did not substantially invoke the litigation machinery and secondly there was no prejudice t plaintiff as a result of the timing of this motion turning st to the lack of substantial invocation of of litigation machinery if you applied a proper test which is the totality of the circumstances sundance did not substantially invoke the litigation machinery and let's look at the light cycle of a typical litigation case st sundance did not initiate this court action not file a motion directed at the merits of this lawsuit that happened in cooper for example and in lieu well that didn't happen here next let's look at discovery sundance did not participate in any discovery it did not require plaintiff to respond to any discovery and finally there was not even in discovery or scheduling conference that took place in this case some dancers motion was filed before the party city even done a rule twenty six dollars report or had an initial scheduling conference with the court and finally this is not a case where a party tries out a legal theory on the court then fails figures all over gosh i want to get another bite at the apple and then finally you know gets wisdom and seeks to file for arbitration as in  example or messina here the timing it does not smack of any kind of manipulation of the judicial process if you were influenced by the lamps us decision we were influenced by the lamps post decision that's correct your honor but i bet indicative of the kind of thing you were just describing you were you were prepared to stay in court and then when lambs ass came out you realized you had a solid arbitration argument so you decided to go that way that's how i read your briefing well certainly prior to lamps plus we had not invoked arbitration because we had a legitimate concern your honor but if we but there were content with court you thought that was the better option because of the risk of class arbitration until you sol amps plus you decided to switch i don't i don't see that your honor is the same thing that happened favorable decision that suggested arbitration would be better form for you and then you switched wives and indicative of an intentional relinquishment of your right to arbitration and in the beginning because your honor it just so happens that the lamps plus decision came down at the very inception of this lawsuit and therefore eight we had substantially invoked the litigation machinery which is the test of this circuit and b we haven't done anything to cause prejudice to the planet so i will i would acknowledge this your honor if lamp spots had come down at a much later stage in this case and if we had already engaged in class discovery or if we had filed the motion directed at the merits of morgan's we do in our claims then sure we wouldn't have been able to use lamps plus to somehow or another  arbitration but it just so happens again this goes back to context and the totality of the circumstances if you look at the totality of the circumstances the timing of this d was simply not such that we had substantially invoked the litigation machinery when we did what we did and there's nothing wrong with us looking at supreme court precedent and deciding can we invoke arbitration as long as we haven't it and under that tast we simply had waived it and the no case in this circuit has found waiver on such a of procedural facts every single case has involved discovery or to submission and scheduling mirrored space motions or some combination of those we don't happen here the district court's finding to the contrary it was riddled with what was the st error of the st year was it explicitly rejected the notion that the task was to taleb yooper circumstances that's simply wrong is this circuit has said on more than one occasion that you have to look at all the facts and the totality of the circumstances nor does it make any logical sense how do you determine if the litigation machinery has been substantially invoked unless you look at contacts and all the circumstances otherwise the test is any indication of the litigation machinery and that's not the test it's not any if it was going to admitted late we had solomon indication but it was it emphasis on the fact that the parties had mediated this case mediation is the opposite of invoking litigation it is done to avoid litigation it mediation is explicitly promoted by the federal arbitration act what the parties did in adding up private settlement conference is one of the goals of the federal arbitration act to promote be inexpensive and speedy and you know efficient resolution of matters so the fact that the court looked askance at the fact that both sides had decided to take a run it settlement is simply wrong an error for the court to consider that and it's consideration of i have a settlement is something that is potentially going to have a chilling effect on parties in the future who choose to have early settlement talks where there is an arbitration agreement in place and the federal rules clearly encourage some i mean look at all security exec think about invoking arbitration that would preclude mediation no i would i would not say that that would preclude us from mediating so no i i would agree that you could mediate if you invoke arbitration but rd your then i want to point out to the court is that the district court did not pay sufficient heed to the strong presumption in favor of arbitration but it's dictated by the federal arbitration act that the supreme court in a series of decisions over the last ten to fifteen years as announced in their rules were cited in our opening brief and this circuit has cited to those decisions in saying that weight is not to be lightly inferred in effect if you want to use kind of like a baseball d analogy it tie goes to the runner here it goes to us the party moving to compel arbitration if this case is considered close it should be decided in our favor not against us because waiver is not to be lightly inferred and the district court here in our view we we submit did seem to go out of its way to find waiver by looking at some fairly consequential activities by focusing on the mediation which it shouldn't have considered by applying the wrong test by could by to by stating that any single act was enough to substantially invoke as opposed to looking at the totality of the circumstances so those three errors alone warrant reversal but independent of the substantial implication of kampala your honour's the district court are so weird in finding that the plaintiff was prejudiced and waiver requires both it's a can jump of test even if some dance had acted inconsistent with its right to file for because of the strong goal of promoting arbitration your honor under the federal arbitration act and if a party delayed for whatever reason and asserting its right to arbitration it has a right to arbitration and here the parties contracted for arbitration and we raced at sundance race that early in the case you know prejudice as clearly because if you're talking about waiver of any it's promoted by the federal arbitration act there is a strong federal policy underlying the notion that arbitration is to be promoted and encouraged so it's not like a normal contract case there's a federal policy underlying it so that's how i would say should be distinguished in the well in case this circuit announced the tast or prejudice and that test is as follows a party is prejudiced when the parties use discovery not available at arbitration when they litigate substantial issues on the merits or when compelling arbitration would require a duplications of efforts it was quoting another court but that's a quote from a well that what was repeated in messina case we do not none of us are present here but the parties did not use any discovery that would not be available in arbitration because there was no discovery in this case litigate a substantial issue on the merits there was no motion directed at the merits of ms morgan's case were the merits of any of the purported class claims and there would be no duplications of effort here we didn't require point of morgan to do anything that she would then have to do again in arbitration because she hadn't responded to a merits motion she hadn't responded to discovery all of that laid in front of her in the arbitration action so no duplications of effort would be required if she went to arbitration the slate would be clean and everything we did in that arbitration would be done for the  time so this does not meet the test of prejudice that this circuit announced quoted him well in and in messina delayed alone is not sufficient to amount to prejudice months were simply the parties waiting for the district court to rule on that state motion to have this quirk this case weight behind the would kids and that should not be held against us because literally nothing happened and then the other think will place where the district court is with regard to its prejudice determination similar to the error with regard to the substantial invocation problem is that considered the parties activity in settling and that should not have been considered it was wholly voluntary all of the activity and in the mediation was done by some gaps producing the records in the how we got to this point after having its motion to dismiss denied to transfer this case to michigan where the case where they were arguing to the district court this plaintiff's claims were already being defendant would its right to compel the arbitration the district who are plainly stated and i quote separately or together the delay and these actions by sundance were inconsistent with the right to arbitrate clearly the court district court did not look at the district court did look at the totality of the circumstances it would be big picture to see exactly what defendant was doing here the defendant argued to the core  early on in this case that this plaintiff's claims were currently covered in addition to geisha and that litigation had been pending since two thousand and sixteen but the problem is that a year after that litigation commenced defendant cut all of the non michigan plaintiffs out of the case they filed the stipulation the class members to  very difficult situation because the plaintiffs cannot stop their statute of limitations from running until they opt into the case so plentiful took matters into their own hands and she filed this law suit the defendant argued that planners clues should be litigated in michigan would action which had been pending in august said since october two thousand and sixteen so after appearing last year requested an extension to file an answer they do not mention arbitration agreement in this case they did not mention an arbitration agreement in the case pending in michigan which had been pending for two years the motion to dismiss was asking this court to move raw plaintiff morgan back to michigan and moving to michigan she wasn't eligible to join a case in here is the most interesting part about this initial activity of the defendant run out i don't know how the defendant can possibly argue that this is not acting inconsistent with the right to arbitrary to that end saying that the plaintiff to file a issue of arbitration the bird st question has to be why didn't find and wait so long it is clear is the court correctly found the defendant's response was purely a tactical reason they were it was a tactical reason that they waited and they didn't initially assert the right to arbitration they also argued correctly that lance plus decision provided significant clarification as to the availability of class arbitration when the arbitration agreement is silent were ambiguous on the issue of class arbitration and again i'm quoting under the prior state law defendant respond compelled arbitration as a matter of a collective action well the the issue of those this is a sign that arbitration agreement in this case motion we held that courts may not infer a consent to participate in class arbitration the last was arbitration argument should not be considered by the court and but i'm as i'm going out of time here i will move into specifically the work properly determined that because the defendant failed to do all it reasonably could have been expected to do at the earliest fusible determination of whether to proceed journey usually or by arbitration as is required by the press and the sport but included in the st file case but was subsequently excluded middle litigation was no easy task additionally another massive undertaking was the preparation for class why litigation defendant has made a big deal about the were for a body addition purposes the plaintiffs was and we were preparing our class claims ok i didn't hire an expert solely for the mediation i knew at some point i was going to happen through class why damages i had no reason to believe that we were not going to litigate this but case the class wide basis secondly i reviewed thousands and thousands of pages of documents on a class wide basis where had i known that we were going to arbitrat to focus on individual issues to support my my client's claim as a as opposed to class wide claims that would support my class certification motion were proved to be damages on a class wide basis as all the case law recognizes individual cases are very different in class wide basis in the proofs are very different there is an eight month delay where the defendant has continually referred to this as a dearth of litigation well that was not the case i was preparing my class wide  arguments for going to this case and trial defendant says there is no duplication or there is no potential for duplication well that's not exactly true either is it because arbitration agreement is silent as to where we're going to litigate and i just went through  r motion with him about him trying to move my case to michigan and the arbitration agreement doesn't provide where the arbitration is going to occur so i could be having that argument again but the point is this i don't have to prove everything for every single the hair that the court is going to have to split in order to distinguish this case from the morgan case the similarities include filed a motion to transfer the defendant did that in this case although it was technically a motion to dismiss or in the alternative stay waited eight months for arbitration both cases messiaen and this case that happened failed to raise arbitration what affirmative defenses that happened in the scene it happened here failed to mention the arbitration the motion to transfer consistently argued it was prepared for trial in federal court will hear it as i pointed out earlier the defendant lodged an argument to dismiss this case so that plaintiff could file and two other cour never once mentioned arbitration well move for arbitration after losing the motion to transfer true in this case as well prayed as to prejudice which spawning to a dense motion yes there was unnecessary motion practice the defendant knew all alone they could have raised this arbitration agreement they could have raised it in their answer and i would have had to respond to this motion but instead they try to get me kicked back into michigan delayed for eight months that that also factors into prejudice as well that involved a in auto accident case that involved in uninsured motorist plain where the arbitration was raised by the uninsured motor motorist carry big one being the lawsuit even commence they refused to have to prove everything i just have to prove that some of those things the district court went through all of these different arguments and evaluated the totality of the circumstances defended so somehow pushed to this point but i want to reiterate the district court said separately or  itrate for example seeking an extension of dates fine a motion to dismiss on planers claims on grounds that are planned should or were being litigated in michigan encouraging her to file a lawsuit and i would just report filing an answer without identifying an arbitration agreement as a potential defense and asking me to prepare a twenty six report i remember i get a call from him and says prepare a rule twenty six report the next point call i get from him it is we're going to we're going to call this case to arbitration all these things are current over an eight month period of time and i was not like defendants i was sitting on my hands waiting i was preparing my case for trial on a class basis and i said i'm out of time so i they'll have to turn your microphone on before you start your argument sorry about that ok i'll try to go work speed here but i want to focus on a couple of things st of all the notion that we filed a motion to transfer the case to michigan is just false that's not what that motion sat it was a motion to eaters eight this case or to dismiss it without prejudice clearly not on the merits and we said that she was free to bring an individual claim if she wanted she could have probably an individual claim in arbitration we did not seek to transfer to michigan and that's just the whole assertion a nd point counsel is talking about a number of things that he supposedly did to prepare his case none of that is in the briefing none of it is in his appeal brief none of it is in his briefing below it's not in the record before this court and we shouldn't be required to respond to what he claims are examples of the things he did that were not in the briefs so that should not be considered by this court as far as the lamp's plus case yes neilson did say silence is not enough but our agreement was almost identical to the agreement and lamps plus that was found to be ambiguous because of the incorporation of the aaa rules so we had a real risk there if we were lying just on stole  your honor i think because i'm out of my rebuttal time i think that's all i will say i wanted to focus on those particular things very well thank you for your rebuttal thank you to book out source for your presentations and perp earing video