good morning may it please the court lawn mcentire appearing out on behalf of the appellant and defendant ages senior communities in this case with the courts permission i'd like to reserve two minutes for rebuttal please watch the clock thank you  in this case involving the district court's ruling that there was a waiver of the right to compel arbitration i wanted to discuss with the court how far the district court's decision strays from the overriding policies and analytical framework for determining whether there has been a waiver of the right to arbitration when you do that course take a look at martin which we are bound by and which you may find difficult difficulty telling us why it doesn't apply yes your honor absolutely in in martin the facts are remarkably distinguishable in terms of the fact that in martin the party petitioning to compel arbitration or seeking arbitration did not file a petition to compel arbitration at the outset of the case but yours was withdrawn it was  nd amended complaint we expressly reserve the right to file a motion to dismiss and a motion to compel arbitration we did file that motion to compel arbitration how much later due to file it  it was i believe by the year well actually yeah that's correct about eleven months but part of the delay was while the motion to dismiss was under consideration by the district  is not the only determinant of fact or how you are different and that point that at least our court then relied on well it's different because we at the outset did indicate our intention to move for arbitration when at the outset that that right was available we and fact filed a motion to compel arbitration the delay occurred when the plaintiffs chose to file a nd amended complaint bring in a new plaintiff with a with some question ration agree so how is there any misunderstanding and arbitration ok well there were two contracts one that was a national then one that was not and the question is which one applied to the particular allegations of this complaint and there was some confusion at the beginning on defendants part about whether or not the arbitration agreement that was not initialed and that was not agreed to that that that contract from tw thirteen in fact was the operative agreement so the that that is part of this delay process in evaluating when and to make when and a motion to compel the arbitration was both appropriate and viable and it wasn't why didn't you immediately file the motion to compel arbitration once the amended complaint was filed because of the addition of a new plaintiff barbara feinberg and that particular plane if there was there was some question about whether or not she had agreed to arbitration one agreement she had not initial the arbitration provision another grima she had not that's your problem i mean you you have the contract it's your problem if you don't read it or get it clarified you still could have asked for arbitration immediately couldn't you well i think that there's there's some  even if other claims can be pursued through arbitration and here at least two of the parties who for sure had arbitration clauses i guess i'm skeptical why you didn't know that the rd one had arbitration clause we why should you be held to that location which you delayed and tell you actually filed a motion for ruling on the merits well the question is whether or not class arbitration was available and with the plaintiff the newly added plaintiff barbara feinberg that put that issue into dispute and the why is that because it wasn't clear whether she had agreed to arbitration or whether and she had agreed to individual arbitration and there is there is potential of inconsistent rulings with respect to these plaintiffs because of the different agreements that they had in the  strategically decided to pursue arbitration is what you're saying no because we had made it clear from the outset that we intended to pursue arbitration but there was a period of time when we didn't move forward with that effort while this  s being clarified we did immediately file a motion to compel arbitration which is significantly different from the facts and martin where no effort was made other than some statements that immediately was it six months later right to file a motion to compel arbitration which was stipulated to with the plaintiff's attorneys and was was part of that of the record in that was made well known that we did intend to do that the the with with respect to our participation in some litigation activities which can indicated in consistency with the intent to pursue arbitration i wanted to point out that that participation was mandated by the court rules which were invoked by the plaintiff filing the petition the complaint in violation of their agreement to arbitrate this means there are local rule that allows you to ask the judge to relieve you obligations i don't know the answer to that your honor but we do know that the typical procedures that are are initiated when a complaint is filed in case involved in motion to dismiss that was merits based i'll have to confirm that your honor and i'd be happy to do that in my rebuttal i'm into my rebuttal time if i may be less you have any other questions good morning your honour's me at least the court sara colby for a police plaintiff's june neuwirth market pearson the proposed class as the court has noted only two of the three factors necessary for all and that the district court relied on has to do with actions that occurred after the motion just missed the nd amended complaint was filed and flowed from fact martin versus you suited to stink wishes those other cases specifically fisher by saying that the self inflicted wounds are the kinds of litigation expenses like repairing and filing a complaint service of the complaint and everything and nothing that the district court relied on in finding prejudice or that we're speaking about is something that happened before the motion so you're taking your hat of prejudice which is a basically ages was silent on the issue of arbitration between the stipulation on the nd amended complaint and till after at last the motion to dismiss yes and during that time plaintiffs parties had signed an arbitration agreement in the plaintiffs have filed in federal court and that this court and the u s supreme court has held that that arbitration agreements if there are valid and enforceable are to be enforced for grounds for not enforcing a contract and waiver is one of those grounds and the court has held that there that these three factors must be considered in waiver if the defendants had filed initially a motion to compel arbitration as soon as the nd amendment and then a complaint was filed regardless of what the district court had done we would have been in one form or the other and we would have been that much farther along and we would not have had arbitration been compelled to expend it that time and those resources if you just complied with the to take advantage of being in federal court which is what the defendants did here that's when they filed the motion to dismiss because otherwise they were just responding to plaintiff's litigation if they were well they f a motion dismissed because they were hoping that they could get dismissed on the merits and they were taking advantage of being in federal court which over the next ten to eleven months wasted the court resources plaintiff's resources and then when they didn't win and they didn't get the advantage of being in federal court they tried to move to arbitration in hopes of a more favorable audience which is the last paragraph of martin the court finds that that is an abuse of the system both the judicial and the ritual system arbitration system and that it's a waste of the court's resources and the plaintiff's resources and to allow it would be manifest federal court and all of that flowed from their decision their strategic choice to do that they they can't after getting an unfavorable opinion change course so i would i would like to talk just a little bit about the things that happened the prejudice that happened between the time that they filed the motion to dismiss the nd amanda complaint and last there are a number of federal court procedures that the parties had to engage in and during during those procedures never once to the plaintiffs or to the court did defendants raise the issue compel arbitration been filed immediately we may never have gotten there and there was nothing that could have to stop the court from saying if they had a motion  i'm going to stay the rest of this until i decide because i don't want to waste the parties or the courts resources until this is determined which form it should be in additionally during that lengthy time that lengthy period of silence and during which the court found that a just was completely silent on arbitration and that's a factual finding that subject to clear air review and it's amply supported by the rec in fact a just as able to point to a single instance when it mentioned arbitration during that period even in situations where you would have expected it to mention it say in the rule twenty six f report when it's discussing anticipated motions or the discovery schedule this never said i did it don't intend to arbitrate so they never actually expressly weigh their right to arbitrate in fact they retain their right correct the they and then their complete silence until they lost the motion to dismiss on the merits martin versus you see it just says that that spending a lengthy time in federal court is with its rigorous procedural and substantive rules will almost inevitably cause the parties to expend more time and money than if they had perceived it directly to arbitration and again if ages had had made that motion to compel arbitration immediately in response to the nd amended complaint we would have been in one quarter or the other  had well plaintiffs also have arguments that the contract is that there was no agreements and there was no meeting of the minds to market pierce because there were two s a couple of points that i'd like to make quickly here one really important distinction about martin that i did not mention yet but that is that is really critical is the facts and martin indicated that during the course of the federal litigation the judge in fact warned the defense counsel that he stood he was at risk of waiving his right to arbitration and asked do you intend to assert the right to arbitration counsel said well i'm not sure i'm kind of like and here in federal court how things are going and i'm not sure whether i'm going to assert that right or not significantly different from the facts in our case where there's no such evidence that that was ever our intent to consciously relinquish the right to arbitration you  seriously believe that we could write an opinion distinguishing mark based upon that that is one of the really significant factors that i think shows that goes to this really critical question of whether there was inconsistent conduct  seventeen months period of delay but also part of the delay here was from the pending ruling that took a long time for the court to rule on we think both i also want to point out that sweater b did involve a motion to dismiss on the merits and the court found no waiver in that case and that there is no prejudice in this case other than what the plaintiffs inflicted by entering into this forum without honoring their agreement to arbitrate and that the ruling on the motion dismissed in the time spent on the motion to dismiss was not something that was a waste of time would not be really related gaited an arbitration and did not result in prejudice to the plaintiffs thank you