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WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Jacob Benson, et al.,

Plaintiffs,

v. 

Casa De Capri Enterprises LLC, et al.,

Defendants.

No. CV-18-00006-PHX-DWL

ORDER 

This order addresses the parties’ statements regarding post-remand proceedings 

(Docs. 112, 113), as well as Plaintiffs’ motion for attorneys’ fees on appeal (Doc. 109).

BACKGROUND

Jacob Benson is a disabled vulnerable adult who received skilled nursing care at a 

now-defunct facility called Casa de Capri Enterprises, Inc. (“Capri”). In December 2012, 

Benson and other family members (together, “Plaintiffs”) brought a negligence action 

against Capri in Maricopa County Superior Court. (Doc. 1-1 at 5-15.) At the time, Capri 

had a “Claims Paid & Reported Liability” insurance policy, which was issued by Defendant 

Continuing Care Risk Retention Group, Inc. (“CCRRG”). (Doc. 56-1.) Pursuant to this 

policy, CCRRG assumed Capri’s defense of the lawsuit. (Doc. 56 ¶¶ 20-21.) 

In 2013, Capri experienced financial difficulties. (Id. ¶¶ 24-44.) These difficulties 

caused Capri to default on its payment obligations to CCRRG, then file for bankruptcy, 

and eventually cancel its insurance policy. (Id.) Afterward, CCRRG withdrew its defense 

of Plaintiffs’ lawsuit. (Id. ¶¶ 45-47.) In November 2017, after the bankruptcy stay was 

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lifted, Plaintiffs obtained a judgment of just more than $1.5 million against Capri. (Doc. 

1-2 at 231-32.)

Plaintiffs’ judgment against Capri forms the backdrop for this lawsuit, which is 

procedurally complex (to put it mildly). In December 2017, Plaintiffs served a writ of 

garnishment on CCRRG. (Doc. 1 ¶ 2; Doc. 1-2 at 233-35, 238-39.) In response, CCRRG 

removed the action to federal court1and then moved to compel arbitration. (Docs. 1, 13.) 

Although the district judge to whom the case was originally assigned denied CCRRG’s 

motion (Doc. 27), CCRRG filed a renewed motion to compel arbitration after the case was 

reassigned to the undersigned judge (Docs. 35, 63) and the Court eventually granted that 

motion, holding that even though Plaintiffs were non-signatories to the insurance policy

between Capri and CCRRG, they were bound by the arbitration clause in that policy under 

Arizona’s doctrine of direct benefits estoppel. (Doc. 88.) Based on this ruling, the Court 

also denied, as moot, four other motions that were pending at the time, including Plaintiffs’ 

motion for summary judgment on the core disputed issue in this case—whether Plaintiffs’ 

negligence claim against Capri is covered by Capri’s CCRRG insurance policy, and by 

extension whether Plaintiffs may recover from CCRRG via the law of garnishment.2

Plaintiffs appealed the order compelling arbitration to the Ninth Circuit, which in 

turn certified a question of law to the Arizona Supreme Court. In January 2022, the Arizona 

Supreme Court resolved that question in Plaintiffs’ favor, holding that “the doctrine of 

direct benefits estoppel can[not] be applied in an Arizona garnishment proceeding.” 

Benson v. Casa de Capri Enterprises, LLC, 502 P.3d 461, 465 (Ariz. 2022). Based on this 

ruling, the Ninth Circuit issued an amended memorandum decision in March 2022 

concluding that “the district court erred in granting CCRRG’s motion to compel arbitration 

under the doctrine of direct benefits estoppel.” Benson v. Casa de Capri Enterprises, LLC, 

2022 WL 822126, *1 (9th Cir. 2022). In a footnote, the Ninth Circuit also stated the 

1 The Ninth Circuit has held that a “garnishment proceeding against . . . insurers is, 

for purposes of removal, a separate and independent civil action” that is “removable.” 

Labertew v. Langemeier, 846 F.3d 1028, 1031-32 (9th Cir. 2017).

2 Under Arizona law, “[i]t is undisputed that insurance loss obligations can be 

garnished.” Benson v. Casa de Capri Enterprises, LLC, 502 P.3d 461, 465 (Ariz. 2022).

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following: “CRRG alternatively argues that the Liability Risk Retention Act of 1986 

(LLRA) preempts state law governing the operation of risk retention groups, and 

apparently by extension precludes Arizona from limiting arbitration provisions in 

insurance policies provided by a risk retention group. The district court did not address 

this argument and [Plaintiffs] argue that CCRRG did not adequately raise it below. We 

leave these matters to the district court in the first instance, with the benefit of the Arizona 

Supreme Court’s new guidance.” Id. at *2 n.1.

After the mandate issued, the Court solicited supplemental briefing from the parties 

about how to proceed. (Doc. 106.) The parties have now filed their briefs. (Docs. 112, 

113.) Additionally, Plaintiffs have filed a motion for their attorneys’ fees on appeal, which 

is also fully briefed. (Docs. 109, 110, 11.)

DISCUSSION

I. Preemption As To Arbitration

CCRRG argues that “the first issue this Court must decide on remand is whether 

LLRA preempts Arizona law (concerning garnishment or otherwise) from limiting the 

enforcement of the arbitration provision in the CCRRG insurance policy.” (Doc. 113 at 2.) 

CCRRG contends that “[t]he Ninth Circuit specifically noted that it did not decide this 

issue and that it would leave it to this Court to decide the issue in the first instance.” (Id.

at 3.) Thus, CCRRG asks the Court to set a briefing schedule on the preemption issue. 

(Id.)

Plaintiffs disagree. (Doc. 112 at 2, 5-6.) In addition to previewing why they believe 

CCRRG’s preemption arguments should fail on the merits, Plaintiffs argue that “CCRRG 

has waived the right to compel arbitration at such a late stage by its delay in bringing its 

Renewed Motion to Compel Arbitration and allowing the case to proceed on the merits as 

opposed to appealing, as was its right, Judge Logan’s decision denying its original motion. 

By forcing [Plaintiffs] to litigate the merits of the Writ through the discovery deadline and 

through full briefing of dispositive motions, CCRRG acted inconsistently with its claimed 

right to compel arbitration to [Plaintiffs’] obvious prejudice.” (Id.)

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The Court concludes that the best and most efficient path forward lies in between 

the parties’ proposals. On the one hand, the Court disagrees with Plaintiffs’ contention that 

CCRRG has waived or forfeited its arbitration-related preemption argument. During the 

initial round of arbitration briefing, CCRRG raised the issue of LLRA preemption in its 

reply, as a rejoinder to Plaintiffs’ arguments about Arizona public policy. (Doc. 22 at 5.) 

However, Judge Logan did not address the preemption issue in his order denying CCRRG’s 

motion. (Doc. 27.) CCRRG again raised LLRA preemption in its renewed motion to 

compel arbitration (Doc. 63 at 10), but the Court did not address that issue in the order 

granting CCRRG’s renewed motion given the Court’s determination that Arizona’s law of 

direct benefits estoppel supported CCRRG’s position (Doc. 88). Now that the Ninth 

Circuit (via the Arizona Supreme Court) has reversed on the direct benefits estoppel issue, 

CCRRG’s alternative preemption argument is ripe for resolution.

On the other hand, the Court rejects CCRRG’s proposal to set a schedule for further 

briefing. CCRRG had a full and fair opportunity to raise the issue of LLRA preemption in 

its previous arbitration-related filings and the Court is hesitant to inject even more delay 

(and cost) into this case by requiring yet another round of arbitration-related briefing. 

Accordingly, the Court will simply rule, in due course, on CCRRG’s arbitration-related 

preemption argument based on the existing briefing.

II. Motion For Judgment On The Pleadings

One of the motions the Court previously denied as moot was CCRRG’s Rule 12(c) 

motion for judgment on the pleadings. (Doc. 38.) In that motion, CCRRG sought judgment 

on the pleadings for two reasons: (1) the writ of garnishment “fails to comply with Federal 

Rules of Civil Procedure 1, 2, 3, 7, and 8 necessary to present the elements of a ‘civil 

action” stating a ‘short and plain statement of the claim for relief showing [Plaintiffs are] 

entitled to relief’ against CCRRG”; and (2) “assuming for the sake of argument that 

Arizona garnishment law applies to this action, Plaintiffs have failed to comply with the 

requirements of A.R.S. § 12-1580(A), which required them both to object to CCRRG’s 

Answer within ten days thereof and to request this matter be set for hearing.” (Id. at 1-2.) 

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In response, Plaintiffs argued that CCRRG’s motion should be denied in full. (Doc. 40.) 

Plaintiffs also argued that, “though not required to do so,” they should be allowed to 

“replead more specifically the grounds upon which [they] allege[] in [their] garnishment 

action that CCRRG owes a debt (e.g. insurance coverage) to Capri” and “to separately 

and/or alternatively join claims for declaratory relief . . . and insurance bad faith.” (Id. at 

10-11.) However, Plaintiffs later filed a “Notice of Withdrawal” in which they retracted 

their request to replead their claims. (Doc. 80.)3

In their post-remand statements, both sides agree that CCRRG’s second Rule 12(c) 

argument is foreclosed by the Ninth Circuit’s ruling in this case. (Doc. 112 at 3; Doc. 113 

at 4.) 

As for CCRRG’s first Rule 12(c) argument, Plaintiffs incorporate their previous 

position that repleading is unnecessary. (Doc. 112 at 2-4 & n.1.) They note that “CCRRG 

has never contended that the Writ is substantively defective under the Arizona garnishment 

statutes or that a Writ of Garnishment that is litigated in the Arizona courts would be subject 

to dismissal under the corollary Arizona Rules of Civil Procedure,” further note that 

CCRRG has never “claimed [it does] not understand the factual and legal basis for 

[Plaintiffs’] claim that CCRRG is indebted to its insured, Casa de Capri, [for] a debt that 

has been garnished,” and argue that “[g]iven the extent to which the parties’ respective 

positions have been repeatedly set forth in this matter, including within the pleadings filed 

in connection with the [motion for summary judgment], to now argue that they require 

more detailed pleading would seem rather preposterous.” (Id.) Meanwhile, CCRRG 

argues that (1) any ruling on the Rule 12(c) motion should be deferred until the Court 

resolves the arbitration-related preemption issue; and (2) alternatively, Plaintiffs’ current 

pleading fails to state a claim under Rule 12(b)(6) because garnishment is not a cause of 

action or claim but simply a remedy. (Doc. 113 at 3-4.)

The Court concludes that CCRRG’s Rule 12(c) motion should be denied. As an 

3 Plaintiffs may have overlooked the Notice of Withdrawal in the portion of their postremand statement (Doc. 112 at 5) asking the Court to grant the repleading request set forth 

within Doc. 40. Because the repleading request was withdrawn, there is nothing to grant.

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initial matter, it is unnecessary to postpone ruling on the motion until CCRRG’s 

preemption-related arbitration argument is resolved. CCRRG filed the Rule 12(c) motion 

in November 2018 (Doc. 38), about six months before it filed the renewed motion to 

compel arbitration (Doc. 63). Additionally, although the Court previously chose, in the 

exercise of its discretion and in an effort to promote judicial efficiency, to rule on the 

renewed motion to compel arbitration before ruling on the Rule 12(c) motion (Doc. 79 at 

1), the calculus has changed in light of intervening events. This case has been pending for 

over four years, the parties have already endured one trip to the Ninth Circuit (with a detour 

to the Arizona Supreme Court), and it makes sense to resolve fully briefed issues that are 

ripe for resolution.

On the merits, the only disputed issue is whether Plaintiffs should be required to 

replead their claims. As a general matter, the Court tends to agree that a plaintiff pursuing 

garnishment in state court should be required replead the claim after the action has been 

removed to federal court. Indeed, Plaintiffs’ current “pleading,” which is their writ of 

garnishment, bears little resemblance to the sort of complaint that would ordinarily be 

required under Rule 7. Nevertheless, under the unusual circumstances of this case, 

repleading is unnecessary. In Labertew, the Ninth Circuit explained that when a 

garnishment proceeding is removed from Arizona state court, a “district court has 

discretion under Rule 81(c)(2) to order repleading.” 846 F.3d at 1034. However, the court

also noted that, under Rule 81(c)(2), “repleading is unnecessary unless the court orders it.” 

Id. at 1034 n.30. The court also noted that upon the removal of a garnishment proceeding, 

the action becomes “in substance a claim by the insureds[] against the liability insurers for 

breaching their obligations under their insurance policies.” Id. Here, the substance of 

Plaintiffs’ claim is crystal-clear to CCRRG, CCRRG has already filed an answer (Doc. 29), 

the parties have already fully briefed Plaintiffs’ summary judgment motion, and CCRRG 

has separately requested permission to file its own summary judgment motion (a request 

that is addressed below). Given this backdrop, it would be pointless to require Plaintiffs to 

go through the formality of repleading their claim. See generally 2 Gensler, Federal Rules 

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of Civil Procedure, Rules and Commentary, Rule 81, at 505-06 (2022) (“A removing party 

must file with the federal court copies of all state court process, pleadings, and orders for 

that case to date. Those state court pleadings—now filed with the federal court as part of 

the removal process—stand as the federal pleadings. The parties do not need to file new 

pleadings unless the court orders them to do so. The decision whether to require repleading 

lies within the district court’s discretion.”).

III. Motion To Strike

Another of the motions the Court previously denied as moot was CCRRG’s motion 

to strike. (Doc. 75.) 

Both sides agree that this motion may be re-denied as moot, albeit for a different 

reason than that previously identified by the Court. (Doc. 112 at 5; Doc. 113 at 5.) 

Accordingly, the motion will again be denied as moot.

IV. Summary Judgment

The third motion the Court previously denied as moot was Plaintiffs’ motion for 

summary judgment. (Doc. 55.)

Both sides agree that this motion is no longer moot in light of the Ninth Circuit’s 

reversal on the arbitration issue. (Doc. 112 at 4; Doc. 113 at 4.) CCRRG also requests

permission to file its own cross-motion for summary judgment. (Doc. 113 at 4-5.) 

Plaintiffs oppose this request: “CRRG had more than adequate time to file any sort of cross 

Motion for Summary Judgment based on the completed discovery and well established 

record before the case was dismissed, but for strategic reasons chose not to do so. They 

should not be allowed to do so now. This case has long been delayed by CCRRG’s multiple 

attempts to get second and third ‘bites at the apple.’ Justice has been delayed too long for 

[Plaintiffs]. Yet another dispositive motion at this late stage should not be allowed.” (Doc. 

112 at 6-7.)

Although, for the reasons discussed above, the Court is loath to inject any more 

briefing cost and delay into this case, CCRRG’s request for permission to file a crossmotion for summary judgment should be granted. The date on which the Court issued the 

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now-reversed order granting CCRRG’s renewed motion to compel arbitration (which also 

dismissed the action) was July 30, 2019. (Doc. 88.) At that time, the deadline for filing 

dispositive motions had not elapsed—under the scheduling order, the relevant deadline was 

September 30, 2019. (Doc. 33 at 5.) Thus, it cannot be said that CCRRG forfeited its 

ability to file an affirmative motion for summary judgment by waiting too long to file. 

Accordingly, good cause exists to modify the scheduling order with respect to the 

dispositive motions deadline. CCRRG may file a motion for summary judgment within 30

days of the issuance of this order (i.e., by July 7, 2022). Once that motion is fully briefed

(and assuming the Court has not, in the interim, granted CCRRG’s preemption-related 

arbitration request), the Court will resolve both sides’ summary judgment motions.

V. Amicus

The fourth motion the Court previously denied as moot was the National Risk 

Retention Association’s (“NRRA”) motion to file an amicus brief in support of CCRRG’s 

opposition to Plaintiffs’ summary judgment motion. (Doc. 66.)

Both sides agree that this motion is no longer moot in light of the Ninth Circuit’s 

reversal on the arbitration issue. (Doc. 112 at 4; Doc. 113 at 5.) Plaintiffs argue the Court 

should deny the request on the merits, for the reasons previously stated in their opposition 

to NRRA’s motion (Doc. 71), while CCRRG argues the Court should grant the request on 

the merits.

“There appears to be no statute or rule which provides standards as to when a party 

should be granted leave to appear as amicus curiae at the district court level.” Dible v. City 

of Chandler, 2004 WL 7336848, *1 (D. Ariz. 2004). As a result, district courts often “look 

to the Federal Rules of Appellate Procedure for guidance on whether leave should be 

granted.” Id. Under those rules, “[t]he ultimate decision whether to permit a non-party 

leave to submit a brief, as amicus curiae, is a matter within the discretion of the courts. 

The classic role of amici is threefold: (1) to assist in a case of general public interest; (2) 

to supplement the efforts of counsel; and (3) to draw the court’s attention to law that has 

escaped consideration. There is also no rule that amici must be totally disinterested.” Id.

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(citations omitted). See also Miracle v. Hobbs, 333 F.R.D. 151, 156-57 (D. Ariz. 2019) 

(noting that “[a]micus briefs are considered at the discretion of the Court” and granting 

request to file amicus brief “because the instant matter is one of public interest, and [amici] 

may be able to highlight arguments and/or relevant law that may otherwise escape the 

Court’s consideration”).

Applying these standards, the Court concludes that NRRA’s motion should be 

granted. Although Plaintiffs note that NRRA may not be disinterested in the outcome of 

this action (Doc. 71 at 2), disinterest isn’t a prerequisite to amicus participation. And more 

broadly, the Court may benefit from NRRA’s discussion of the preemption issues raised in 

CCRRG’s summary judgment response (which are distinct from the arbitration-related 

preemption issues as to which the Court has declined to allow supplemental briefing). 

Accordingly, the Court will order the Clerk of Court to file NRRA’s amicus brief and allow 

Plaintiffs to respond to the brief.

VI. Attorneys’ Fees

Following their victory in the Ninth Circuit, Plaintiffs filed an application for 

attorneys’ fees, which the Ninth Circuit transferred to this Court for consideration. (Doc. 

107.)

A. The Parties’ Arguments

Plaintiffs seek $60,551 in attorneys’ fees based on their successful appeal of the 

order compelling arbitration. (Doc. 109.) The statute on which Plaintiffs rely as the basis 

for their fee request is A.R.S. § 12-1580(E). (Id. at 1-2.) Plaintiffs contend that “[u]nder

a similar Arizona statute [A.R.S. § 12-341.01] dealing with actions arising out of contract, 

an appellate court is authorized to make an award of fees on appeal even where the merits 

remain to be decided if the appeal resolves a significant separate legal issue central to the 

case and is sufficiently significant to be treated as a separate unit.” (Id., citing Wagenseller 

v Scottsdale Mem’l Hosp., 710 P.2d 1025 (Ariz. 1985)). Plaintiffs contend that “[t]he 

conditions for an award under the Wagenseller rule apply here” because “[t]his appeal dealt 

with the separate and significant issue of whether [Plaintiffs] could be forced to arbitrate 

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their statutory garnishment claim.” (Id.)

CCRRG opposes Plaintiffs’ fee request. (Doc. 110.) First, CCRRG argues that the 

$9,994.50 portion of the request pertaining to the proceedings before the Arizona Supreme 

Court is improper because, under Arizona Supreme Court Rule 27(e), “[t]here shall be no 

application for costs or attorneys’ fees made to this court in connection with a certification 

proceeding.” (Id. at 5, 7.) Second, CCRRG argues that fees are categorically unavailable 

under A.R.S. § 12-1580 at this stage of the proceedings because the statute “contemplates 

consideration of an attorney’s fee award to the prevailing party only after a hearing, which 

has yet to occur here.” (Id. at 5-14.) Third, CCRRG argues that even if fees were 

theoretically available before a determination on the merits, a fee award would be improper 

under Wagenseller because Plaintiffs failed to address the Wagenseller factors in their 

application, Plaintiffs’ case is being handled on a contingency basis (and thus they have 

not yet incurred any fees), and the issues raised in the appeal were novel. (Id. at 6, 14-18.) 

Fourth, CCRRG argues that Plaintiffs’ fee request, even after reduction for the proceedings 

in the Arizona Supreme Court, is inflated and includes “billing for tasks that lack any 

meaningful description of the task being billed.” (Id. at 18-20.)

In reply, Plaintiffs argue that their request for fees arising from the certification 

proceedings is proper because the request is not being directed to the Arizona Supreme 

Court (Doc. 111-1 at 1-2); that “[n]othing in A.R.S. § 12-1580(E) requires prevailing after 

a hearing on the merits” (id. at 2-3); that the Wagenseller rule should be deemed applicable 

to A.R.S. § 12-1580 because the concepts of “successful party” and “prevailing party” are 

identical in substance and Arizona courts have applied the Wagenseller rule “to other 

statutes beyond A.R.S. § 12-341.01” (id. at 3-5); that a discretionary award of fees would 

be appropriate under the Wagenseller factors (id. at 5-6); and that CCRRG’s objections to 

the size of the fee request are vague, undeveloped, and at most target only $1,845 of the 

time entries (id. at 6-8).

B. Analysis

The statute giving rise to Plaintiffs’ fee request, A.R.S. § 12-1580(E), provides in 

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relevant part that “[t]he prevailing party” in an action involving an objection to a writ of 

garnishment “may be awarded costs and attorney fees in a reasonable amount determined 

by the court.” This statute provides the “exclusive avenue for recovering fees in a 

garnishment proceeding.” Ironwood Commons Cmty. Homeowners Ass’n, Inc. v. Randall, 

439 P.3d 1193, 1198 (Ariz. Ct. App. 2019). See also id. (“[A]ttorneys’ fees related to a 

garnishment for ‘non-earnings’ could be awarded only under A.R.S. § 12-1580(E).”).

As a threshold matter, it is unclear whether Plaintiffs may, at this stage of the case, 

qualify as a “prevailing party” for purposes of § 12-1580(E). Plaintiffs have not yet 

prevailed on the merits of their garnishment claim—instead, they have simply fended off 

CCRRG’s attempt to compel arbitration of that claim. Even though Plaintiffs correctly 

point out that Arizona courts have determined that a party may be considered “successful” 

or “prevailing” for purposes of other fee-shifting statutes by prevailing on a discrete issue 

on appeal (even though the appellate victory does not resolve the case on the merits), there 

are notable textual differences between those statutes and § 12-1580(E). That provision, 

when read in context with the other subdivisions of § 12-1580, seems to contemplate a fee 

award only after the merits of an objection to a garnishment request have been resolved.

4

 

4 A.R.S. § 12-1580 reads, in its entirety, as follows:

A. A party who has an objection to the writ of garnishment, the answer of the garnishee 

or the amount held by the garnishee or a party claiming an exemption from 

garnishment, not later than ten days after the receipt of the answer, may file a written 

objection and request for hearing. Copies of the objection shall be delivered to all 

parties to the writ at the time of filing the request for hearing form.

B. The hearing on an objection to the writ, answer or amount on a claim of exemption 

shall be commenced within five days after the request, not including weekends and 

holidays, but may be continued for good cause on terms the court deems appropriate 

after due consideration of the importance of the judgment debtor's rights and the 

need for a speedy determination. Good cause includes a situation in which the 

objection raised at the hearing is different from that set forth in the request for 

hearing. The hearing shall not be held later than ten days from the date of the request 

unless the request for a continuance is made by the judgment debtor.

C. A party requesting a hearing pursuant to this section is required to state the grounds 

for his objection in writing, but the objecting party is not limited to those written 

objections at the hearing conducted pursuant to this section.

D. The court shall notify the parties of the date and time of the hearing at least two 

days, not including weekends and holidays, before the date of the hearing.

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Here, of course, the merits remain unresolved.

Nevertheless, even if fees could be awarded at this juncture under A.R.S. § 12-

1580(E), the Court would decline in its discretion to impose a fee award. In Schooley v. 

Pena, __ P.3d __, 2022 WL 1548481 (Ariz. Ct. App. 2022), the court encountered a similar 

situation. There, Schooley obtained a $525,000 judgment against Pena and then served a 

writ of garnishment on Pena’s insurance company, Farmers Insurance Company

(“Farmers”). Id. at *1. After Farmers failed to file timely objections, Schooley obtained a 

default judgment against Farmers, but Farmers then successfully moved to vacate the 

default judgment. Id. at *2. Schooley appealed the vacatur of the default judgment but the 

Arizona Court of Appeals affirmed. Id. at *2-4. As relevant here, Farmers then sought an 

award of its attorneys’ fees on appeal, arguing that “Section 12-1580(E) provides for a 

discretionary fee award to the prevailing party in a garnishment proceeding.” Id. at *4. 

Even though Farmers was “the successful party on appeal,” the Arizona Court of Appeals 

“[i]n our discretion” denied the fee request. Id.

Like Schooley, this contested-garnishment action generated an appeal that did not 

resolve the merits of the objections to the garnishment claim. Even if it might be possible 

to award fees in these circumstances under the Wagenseller rule, the Court would decline 

to do so, just as the Schooley court declined to do so. If Plaintiffs prevail at the end of this 

action, they may then seek fees under § 12-1580(E).

...

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...

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...

E. The prevailing party may be awarded costs and attorney fees in a reasonable amount 

determined by the court. The award of attorney fees that are incurred due to the 

objection shall not be assessed against nor is it chargeable to the judgment debtor, 

unless the judgment debtor is found to have objected to the writ solely for the 

purpose of delay or to harass the judgment creditor.

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Accordingly,

IT IS ORDERED that:

1. CCRRG’s request to set a briefing schedule on the issue of arbitration-related 

preemption (Doc. 113 at 3) is denied. The Court will decide that issue in due course 

without the need for further briefing. 

2. CCRRG’s Rule 12(c) motion (Doc. 38) is denied.

3. CCRRG’s motion to strike (Doc. 75) is denied as moot.

4. CCRRG’s request to modify the scheduling order with respect to dispositive 

motions (Doc. 113 at 4-5) is granted. CCRRG may file a motion for summary judgment 

by July 7, 2022. Once that motion is fully briefed (and assuming the Court has not, in the 

interim, granted CCRRG’s preemption-related arbitration request), the Court will resolve 

both sides’ summary judgment motions.

5. NRRA’s motion to file an amicus brief (Doc. 66) is granted. The Clerk of 

Court is directed to file the amicus brief that was lodged as an attachment to NRRA’s 

motion (Doc. 66-1). Plaintiffs may file a response to that brief. The response is due on the 

same date as Plaintiffs’ response to CCRRG’s yet-to-be-filed summary judgment motion. 

No reply may be filed.

6. Plaintiffs’ motion for attorneys’ fees (Doc. 109) is denied.

Dated this 7th day of June, 2022.

Case 2:18-cv-00006-DWL Document 115 Filed 06/07/22 Page 13 of 13