UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

_________________________________

MATTHEW S. WOLF, on behalf of 

himself and all others

similarly situated, Civil No. 10-3338 (NLH/KMW)

Plaintiff,

 OPINION

v.

 

NISSAN MOTOR ACCEPTANCE

CORPORATION,

Defendant.

__________________________________

APPEARANCES:

Michael John DeBenedictis, Esquire

DeBenedictus & DeBenedictis LLC

125 Kings Highway West

Haddonfield, New Jersey 08033

Thomas T. Booth, Jr., Esquire

Law Offices of Thomas T. Booth, Jr., LLC

129 W. Evesham Road

Voorhees, New Jersey 08043

Counsel for Plaintiff

William H. Grae, Esquire

The Chartwell Law Offices, LLP

75 Main Street

Suite 201

Millburn, New Jersey 07041

Counsel for Defendant

HILLMAN, District Judge:

The Court previously entered an Order staying the instant 

proceedings and referring the matter to arbitration. Presently 

1

Case 1:10-cv-03338-NLH-KMW Document 37 Filed 02/20/15 Page 1 of 18 PageID: 579
before the Court is Plaintiff’s letter motion [Doc. No. 27] 

seeking to lift the stay and reopen this case based upon the 

purported failure of Defendant, Nissan Motor Acceptance 

Corporation, to submit the proper arbitration fee, which 

resulted in the matter being withdrawn from arbitration. 

Defendant filed opposition to the letter motion, and Plaintiff 

has filed a reply. The Court has considered the submissions of 

the parties and decides this matter pursuant to Federal Rule of 

Civil Procedure 78. For the reasons that follow, Plaintiff’s 

motion will be denied. 

I. JURISDICTION

The Court exercises jurisdiction over Plaintiff’s federal 

claim pursuant to 28 U.S.C. § 1331, and may exercise 

supplemental jurisdiction over Plaintiff’s state law claim under 

28 U.S.C. § 1367.

II. BACKGROUND

This case involves a putative class action suit in which 

Plaintiff alleges, inter alia, violations of the Servicemembers 

Civil Relief Act, 50 U.S.C. §§ 501 et seq. (hereafter, “SCRA”). 

In November 2006, Plaintiff entered into an agreement to lease a 

2007 Nissan Infiniti G35 Sedan for thirty-nine months. (Op. 

[Doc. No. 15] 2, June 22, 2011.) At the inception of the lease, 

Plaintiff paid $595 in “Capitalized Cost Reduction” (hereafter, 

“CCR”), an advance toward the lease’s rent. (Id. at 3.) He 

2

Case 1:10-cv-03338-NLH-KMW Document 37 Filed 02/20/15 Page 2 of 18 PageID: 580
also prepaid for other items which he could instead have paid on 

a monthly basis. (Id.) During the lease term, Plaintiff 

entered into active military service, returned the leased 

vehicle to Nissan, and invoked the SCRA. (Id.) Plaintiff 

contends in the complaint that the SCRA entitles military 

service members, like himself, to a prorated refund of lease 

payments made in advance. (Id.) Defendant, however, refused to 

refund to Plaintiff any prorated CCR payments. (Id.) Plaintiff 

then filed a putative class action in this Court. (Id.)

Based on an optional arbitration clause contained in the 

lease agreement, Defendant filed a motion to stay the instant 

proceedings and compel arbitration. In opposition to the 

motion, Plaintiff raised a number of challenges, including that 

the arbitration clause is unconscionable because it included a 

class action waiver.

On June 22, 2011, this Court entered an Opinion and Order 

granting Defendant’s motion. The Court upheld the class action 

waiver provision in the arbitration clause, finding that the 

provision was not precluded either by the SCRA or New Jersey 

law. The Court did, however, strike two provisions in the 

arbitration clause concerning the payment of arbitration fees. 

Specifically, the arbitration clause contained a fee-shifting 

provision and an appeals provision which could be construed so 

as to require Plaintiff to shoulder the entire financial burden 

3

Case 1:10-cv-03338-NLH-KMW Document 37 Filed 02/20/15 Page 3 of 18 PageID: 581
of the arbitration and appeal of his claims, irrespective of the 

outcome. (Op. [Doc. No. 15] 18-19, June 22, 2011.) The Court 

thus severed these unconscionable provisions but nonetheless 

found the arbitration clause otherwise valid and enforceable. 

(Id. at 19.) As such, the Court stayed the case and referred 

the matter to arbitration. (Id.)1 

On October 22, 2012, counsel for Defendant wrote to 

Plaintiff’s counsel in an effort to initiate the arbitration 

process. Because the arbitration provision in the lease 

agreement provided Plaintiff an opportunity to choose the 

arbitration forum, defense counsel sought input as to whether 

Plaintiff preferred to arbitrate the matter through the American 

Arbitration Association (hereafter, “AAA”), the National 

Arbitration Forum, or JAMS. (Def.’s Ltr. Br. dated May 16, 2014 

(hereafter, “Def.’s Ltr. Br.”) [Doc. No. 30], Ex. A.) After 

receiving no response from Plaintiff, Defendant decided to 

submit the case to the AAA. (Decl. of James R. Bruinsma, Esq. 

(hereafter, “Bruinsma Decl.”) [Doc. No. 30-1] ¶¶ 9-13.) 

Before filing any papers with the AAA, however, counsel for 

Defendant represents that he obtained advice from the AAA as to 

1 Plaintiff subsequently filed a motion for reconsideration, 

which was denied by Opinion and Order dated March 29, 2012. 

Plaintiff then filed an appeal to the United States Court of 

Appeals for the Third Circuit, but the appeal was dismissed for 

lack of jurisdiction.

4

 

Case 1:10-cv-03338-NLH-KMW Document 37 Filed 02/20/15 Page 4 of 18 PageID: 582
the appropriate method to initiate arbitration. (Id. ¶ 13.) 

According to counsel, he sought such advice because of the 

unusual procedural circumstance in that Defendant -- although 

filing the claim to initiate arbitration -- was not the party 

seeking payment and thus was not the “claimant.” (Id.) Defense 

counsel was purportedly advised to utilize the AAA’s standard 

form and attach thereto those documents that Defendant believed 

set forth the nature of the case and its status. (Id. ¶ 14.) 

In January 2013, Defendant completed the standard form and 

attached Plaintiff’s complaint, this Court’s Order referring the 

matter to arbitration, and the arbitration clause between the 

parties. (Def.’s Ltr. Br., Ex. B.) Defendant determined that 

the dollar amount of the claim would be $600, and that the 

arbitration fee would be $775 based upon the AAA fee schedule, 

which was the standard fee for claims up to $10,000. (Bruinsma 

Decl. ¶¶ 15-17.) Defendant submitted the $775 fee with the 

standard form. 

By letter dated February 7, 2013, Defendant wrote to the 

AAA case manager advising that it should be designated as the 

“Respondent” in the proceeding rather than as the “Claimant” 

because it was not the party seeking payment. The letter 

specifically noted that “[t]his is not a claim by NMAC to 

collect a consumer’s debt; rather, it is a claim by a consumer 

against NMAC for damages and other relief as outlined in his 

5

Case 1:10-cv-03338-NLH-KMW Document 37 Filed 02/20/15 Page 5 of 18 PageID: 583
complaint.” (Def.’s Ltr. Br., Ex. C.) Defendant also requested 

through this letter an in-person hearing with an arbitrator. 

(Id.) The AAA sent an invoice for an additional $750, which was 

the flat rate due for compensation of an arbitrator for an inperson hearing. (Id., Ex. D.) Defendant paid the invoice in 

full. (Id.)

In March 2013, the AAA designated the Honorable Burrell 

Ives Humphreys (Retired) to serve as an arbitrator. A 

preliminary telephone conference was held on May 20, 2013, at 

which time Plaintiff was directed to submit his own Statement of 

Claim. (Pl.’s Ltr Br. [Doc. No. 35] 5, July 18, 2014; Bruinsma 

Decl. ¶¶ 28, 32.) Plaintiff submitted a Statement of Claim in 

June 2013. (Decl. of Michael J. DeBenedictis in Reply, Ex. G.) 

The Statement of Claim set forth not only Plaintiff’s individual 

claims, but also contained several class action allegations. 

(See generally id.) Although Plaintiff’s Statement of Claim 

acknowledged that “any claim proceeding in arbitration can only

proceed on an individual basis” (id. ¶ 16), the Statement 

nonetheless included the class action allegations and set forth 

an “Amount in Controversy” of $2,100,000 in monetary damages 

based upon “putative class claims,” with equitable and 

injunctive relief having a similar economic value. (Id. ¶ 26.) 

The Statement of Claim contains no estimate as to the value of 

Plaintiff’s individual claims. (See id.) Defendant filed a 

6

Case 1:10-cv-03338-NLH-KMW Document 37 Filed 02/20/15 Page 6 of 18 PageID: 584
response to Plaintiff’s Statement of Claim in July 2013, noting 

therein that “the parties’ agreement provides that Claimant’s 

claims may be arbitrated solely on an individual basis and not 

as a class action.” (Def.’s Ltr. Br., Ex. F at ¶¶ 58-72.) 

In October 2013, a new AAA case manager, Derek Coppola, 

sent an email to counsel with an attached invoice for $8,200. 

(Def.’s Ltr. Br., Ex. H.) The invoice was addressed to 

Plaintiff’s counsel and was to be paid within fifteen days. 

(Id.) Plaintiff did not pay the fee. (Bruinsma Decl. ¶ 41.) 

Defense counsel represents that Mr. Coppola contacted him on 

November 14, 2013 because Mr. Coppola had been unable to contact 

Plaintiff’s counsel. (Id.) According to defense counsel, Mr. 

Coppola inquired as to whether Plaintiff intended to pay the 

invoice. (Id.) Mr. Coppola purportedly stated during that 

conversation that the fee was assessed based on Plaintiff’s $2.1 

million monetary demand in his Statement of Claim. (Id. ¶ 42.) 

Defense counsel further represents that Mr. Coppola stated “‘If 

[Plaintiff] wants to arbitrate a $2 million claim, he has to pay 

the fee first.’” (Id.)

The parties at that point became entrenched in their 

positions that neither was going to pay the $8,200 filing fee. 

On February 11, 2014, Mr. Coppola emailed counsel for the 

parties advising that Plaintiff’s claim would be deemed 

withdrawn if the outstanding invoice was not paid by February 

7

Case 1:10-cv-03338-NLH-KMW Document 37 Filed 02/20/15 Page 7 of 18 PageID: 585
18, 2014. (Bruinsma Decl. ¶ 45.) Although the parties wrote to 

the AAA case manager arguing over who was responsible to pay the 

fee, no party ever asked the case manager to reconsider the fee. 

Most notably, it does not appear from the record that Plaintiff 

ever clarified to the case manager that the arbitration was 

based only on his individual claims, which were not within the 

range of $1,000,000 to $5,000,000 and did not require an $8,200 

fee. Defendant attempted to explain to the case manager that 

Plaintiff was improperly asserting a class claim, which 

generated an increased fee, but Defendant did not request that 

the case manager reduce the fee. Rather, Defendant insisted 

that it had already paid the fees required to arbitrate 

Plaintiff’s individual claim and that Plaintiff was responsible 

for any fees resulting from his class action allegations.

On March 7, 2014, after neither party paid the $8,200 

filing fee, Mr. Coppola sent another email to counsel stating 

that “[t]he Association has been advised that Claimant has 

withdrawn its claim from arbitration.” (Grae Ltr. Br., Ex. J.) 

Defense counsel responded to clarify whether Plaintiff was the 

“Claimant,” noting that Mr. Coppola’s email “says the Claimant 

has withdrawn ‘its’ claim[.]” (Id.) The case manager confirmed 

that Plaintiff “withdrew his claim.” (Id.)

8

Case 1:10-cv-03338-NLH-KMW Document 37 Filed 02/20/15 Page 8 of 18 PageID: 586
III. DISCUSSION

Section 2 of the Federal Arbitration Act (hereafter, “FAA”) 

provides for enforcement of arbitration agreements in written 

contracts. 9 U.S.C. § 2. Pursuant to Section 4 of the FAA, a 

party “aggrieved by the alleged failure, neglect, or refusal of 

another to arbitrate under a written agreement for arbitration 

may petition any United States district court . . . for an order 

directing that such arbitration proceed in the manner provided 

for in such agreement.” 9 U.S.C. § 4. Section 3 of the FAA 

states that a district court may stay the trial of a matter 

where the parties have agreed to arbitrate an issue, “provid[ed] 

the applicant for the stay is not in default in proceeding with 

such arbitration.” 9 U.S.C. § 3. 

Although the Court already stayed this matter so that the 

parties may proceed with arbitration, Plaintiff now asks the 

Court to lift the stay. Plaintiff contends in this regard that 

Defendant defaulted by failing to pay the filing fee to initiate 

arbitration, and consequently has purportedly waived its right 

to arbitrate Plaintiff’s claims under Section 3 of the FAA. 

In deciding whether Defendant defaulted in proceeding with 

the arbitration, the Court must determine whether Defendant was 

responsible for paying the $8,200 filing fee requested by the 

AAA. For the reasons discussed below, the Court finds that the 

AAA required Plaintiff to pay this filing fee, and therefore 

9

Case 1:10-cv-03338-NLH-KMW Document 37 Filed 02/20/15 Page 9 of 18 PageID: 587
Defendant’s failure to pay the fee does not constitute a default 

in proceeding with arbitration. 

The Court first rejects Plaintiff’s contention that the AAA 

case manager required Defendant to pay the invoice for $8,200. 

Although the invoice was sent via email to defense counsel, both 

attorneys for Plaintiff were “cc:d” on the email and the invoice 

attached thereto is addressed to Plaintiff’s counsel. The email 

itself states that it “acknowledge[s] receipt of a [sic] 

Claimant Matthew Wolf’s Statement of Claimant” and that “the 

claim is not properly filed without the submission of the 

appropriate filing fee.” (Def.’s Ltr. Br., Ex. H.) The email 

further states that “at this time we request that Claimant 

submit the appropriate filing fee in the amount of $8,200.00 . . 

. [.]” (Id.) The content of the email and the invoice attached 

thereto thus belie Plaintiff’s assertion that Defendant was 

required by the AAA to pay the invoice.

Moreover, the Court notes that the AAA case manager 

assessed the $8,200 when Plaintiff filed a Statement of Claim 

containing class action allegations.2 Plaintiff fought the class 

action issue before this Court and lost, both in connection with 

2 The Court notes that under AAA Rule R-53, “[t]he filing fee 

shall be advanced by the party or parties making a claim or 

counterclaim, subject to final apportionment by the arbitrator 

in the award.” AAA Rule R-53. 

10

 

Case 1:10-cv-03338-NLH-KMW Document 37 Filed 02/20/15 Page 10 of 18 PageID: 588
Defendant’s motion to compel arbitration and Plaintiff’s motion 

for reconsideration, and Plaintiff was unable to obtain relief 

from the Third Circuit. Despite this, Plaintiff proceeded to 

set forth class allegations in the Statement of Claim and sought 

$2.1 million in damages for the class claims.3 Clearly, the 

$8,200 fee, which is the standard fee for claims between $1 

million and $5 million, was predicated upon Plaintiff’s 

assertion of class claims. It does not appear that Plaintiff 

ever attempted to clarify with the AAA case manager that the 

value of his individual claims did not warrant an $8,200 fee. 

Whether the AAA case manager was correct in assessing a 

filing fee in the amount of $8,200 or in directing the invoice 

to Plaintiff is not for this Court to decide. “‘‘[P]rocedural’ 

questions which grow out of the dispute and bear on its final 

disposition’ are presumptively not for the judge, but for an 

3 Plaintiff’s counsel indicates that he was directed by the 

arbitrator to include in the Statement of Claim an estimate of 

the size of the class and the potential impact of equitable 

remedies in monetary terms. It is not clear to the Court why 

any class issues were raised and discussed with the arbitrator, 

when the Court had already ruled that the class action waiver 

provision in the arbitration agreement was valid and 

enforceable. Moreover, while Plaintiff submitted an estimate of 

the value of the class action claim, he did not submit an 

estimated value of his individual claim. In so doing, he placed 

the burden on the AAA case manager to sift through the 

allegations in his Statement of Claim to determine which claims 

were actually subject to arbitration to set the appropriate 

filing fee. 

11

 

Case 1:10-cv-03338-NLH-KMW Document 37 Filed 02/20/15 Page 11 of 18 PageID: 589
arbitrator, to decide.” Howsam v. Dean Witter Reynolds, Inc., 

537 U.S. 79, 84, 123 S. Ct. 588, 154 L. Ed. 2d 491 

(2002)(quoting John Wiley & Sons, Inc. v. Livingston, 376 U.S. 

543, 546-47, 84 S. Ct. 909, 11 L. Ed. 2d 898 (1964)). An 

arbitrator should decide whether a condition precedent to 

arbitrability, such as time limits, notice, laches, or estoppel, 

has been fulfilled. Id. at 85, 123 S. Ct. 588. At least one 

court has held that “questions related to the payment of fees . 

. . are for arbitrators to decide.” Pre-Paid Legal Services, 

Inc. v. Cahill, No. 12-CV-346-JHP, 2014 WL 1514161, at *1 (E.D. 

Okla. Apr. 16, 2014). 

In Lifescan, Inc. v. Premier Diabetic Services, Inc., 363

F.3d 1010 (9th Cir. 2004), the Ninth Circuit reversed the 

district court’s order compelling a party to pay an arbitration 

fee when the arbitrator had required another party to pay such 

fee. The issue before the court was “[w]hat happens when a 

party to an arbitration is unable to pay its pro-rata share of 

the arbitration fees[.]” Lifescan, 363 F.3d at 1011. There, 

the parties had participated in AAA arbitration but, before the 

final hearing, one of the parties, Premier Diabetic Services, 

Inc., was unable to pay its pro-rata share of the arbitrators’ 

estimated fees and costs for the remainder of the proceedings. 

Id. The arbitrator gave the other party, Lifescan, Inc., the 

option of advancing the fees owed by Premier, but Lifescan 

12

Case 1:10-cv-03338-NLH-KMW Document 37 Filed 02/20/15 Page 12 of 18 PageID: 590
refused. Id. The AAA declined to proceed and suspended the 

proceedings. Id. Lifescan then asked the district court to 

compel Premier to pay its pro-rata share of the fees, which 

request was granted by the district court. Id. 

On appeal, the Ninth Circuit reversed the district court’s 

decision, finding that the arbitrators acted within their 

discretion in requiring Lifescan to pay Premier’s share of the 

arbitration fees. Id. at 1013. In so holding, the Ninth 

Circuit noted that the AAA rules provide the arbitrators with 

“the authority to apportion fees and expenses as appropriate.” 

Id. at 1012. In particular, the Ninth Circuit noted that 

“[a]lthough the arbitrators originally requested an equal 

deposit from the parties, they changed their order when Premier 

informed them that it could not afford to pay.” Id. While 

recognizing that the arbitrators’ decision “may not be an ideal 

solution to the problem of a party’s failure to pay its share of 

the fees, . . . it is well within the discretion of the 

arbitrators.” Id. 

Another Ninth Circuit decision relevant to the present case 

is Sink v. Aden Enterprises, Inc., 352 F.3d 1197 (9th Cir. 

2003). In Sink, the district court stayed the plaintiff’s 

lawsuit for breach of an employment contract and referred the 

matter to arbitration pursuant to an arbitration clause in the 

contract. Id. at 1198. The employment agreement required the 

13

Case 1:10-cv-03338-NLH-KMW Document 37 Filed 02/20/15 Page 13 of 18 PageID: 591
defendant, as the employer, to pay the costs of any arbitration 

arising from the employment relationship. Id. at n.1. The 

defendant-employer failed to pay the filing fee, and the 

arbitrator cancelled the arbitration due to non-payment of fees. 

Id. at 1199. The plaintiff then sought to lift the stay of 

proceedings in the district court, which request was granted. 

Id. 

On appeal, the Ninth Circuit found that the defendantemployer defaulted in the arbitration. Id. Because the 

defendant was in default, the FAA no longer permitted a stay of 

the court proceedings in favor of arbitration and did not 

require the district court to order the parties to return to 

arbitration. Id. at 1201-02. The Ninth Circuit held “that a 

party to an arbitration agreement may not compel arbitration of 

claims under FAA § 4 where a prior default in arbitration of 

those claims precludes that party from obtaining a stay of 

litigation pending arbitration under § 3.” Id. at 1201. In so 

holding, the Ninth Circuit noted that if the parties were 

required to return to arbitration, “[t]he same offending party 

could then default a second time, and the prejudiced party’s 

sole remedy, again, would be another order compelling 

arbitration.” Id. at 1201. “This cycle could continue, 

resulting in frustration of the aggrieved resolution of claims.” 

Id. 

14

Case 1:10-cv-03338-NLH-KMW Document 37 Filed 02/20/15 Page 14 of 18 PageID: 592
The facts of this case fall neither squarely within 

Lifescan nor Sink. Lifescan involved payment of fees associated 

with the arbitration hearing rather than the initial filing fee, 

but supports the notion that the Court cannot require one party 

to pay a fee when the arbitrator has required a different party 

to pay such fee. Sink is more on point insofar as it involved 

the failure to pay the initial filing fee, but in that case the 

employer-defendant was clearly obligated by contract to pay the 

fee and failed to do so.4 There was no dispute as to the amount 

of the fee or any conduct by the plaintiff that generated an 

artificially-inflated fee. Here, by contrast, Defendant paid 

the initial fee, and the arbitrator then required Plaintiff to 

pay a significantly increased fee as a result of Plaintiff’s 

assertion of a class action claim in excess of $2 million. 

The FAA “establishes that, as a matter of federal law, any 

doubts concerning the scope of arbitrable issues should be 

4 Plaintiff also cites Stowell v. Toll Brothers, No. 06-cv-2103, 

2007 WL 30316, at *1 (E.D. Pa. Jan. 4, 2007), for the 

proposition that a defendant’s failure to pay an initial filing 

fee in arbitration constitutes default and, as such, is a waiver 

of the defendant’s right to compel arbitration. The relevant 

facts in Stowell were the same as those in Sink, because both 

cases involved a defendant who sought arbitration but then 

outright refused to pay an arbitration fee despite an obligation 

to do so. Those cases are distinguishable from the present case 

because Defendant here paid the initial filing fee but refused 

to pay the additional fee invoiced to Plaintiff and generated 

when Plaintiff filed his Statement of Claim. 

15

 

Case 1:10-cv-03338-NLH-KMW Document 37 Filed 02/20/15 Page 15 of 18 PageID: 593
resolved in favor of arbitration, whether the problem at hand is 

the construction of the contract language itself or an 

allegation of waiver, delay, or a like defense to 

arbitrability.” Moses H. Cone Mem. Hosp. v. Mercury 

Construction Corp., 460 U.S. 1, 24-25, 103 S. Ct. 927, 74 L. Ed. 

2d 765 (1983). There is a strong presumption against waiver of 

arbitration. See Sherrock Bros., Inc. v. DaimlerChrysler Motors 

Co., LLC, 260 F. App’x 497, 500 (3d Cir. 2008); Tracinda Corp. 

v. DaimlerChrysler AG, 502 F.3d 212, 223 (3d Cir. 2007). 

The Court recognizes, as discussed in Sink, that when the 

purpose of arbitration -- that is, to provide a cost-effective 

and efficient means of resolving a claim -- is thwarted by a 

party’s failure to pay the required fees, the defaulting party 

should not be permitted to return to arbitration. But this is 

not a case where Plaintiff was held at the mercy of a non-paying 

party who merely sought to delay resolution of the claims at 

issue. Defendant paid a filing fee and completed the paperwork 

to initiate the arbitration. Plaintiff then failed to pay an 

$8,200 invoice directed to him based on the claim he filed with 

the AAA. The AAA ultimately found that Plaintiff waived his 

claim. Under these circumstances, the Court cannot conclude 

that it was Defendant’s conduct that resulted in the case being 

removed from arbitration. As such, the Court does not find 

that Defendant defaulted in the arbitration proceedings so as to 

16

Case 1:10-cv-03338-NLH-KMW Document 37 Filed 02/20/15 Page 16 of 18 PageID: 594
overcome the strong federal policy favoring the enforcement of 

arbitration agreements.

In so finding, the Court notes Plaintiff’s argument that 

Defendant has purportedly shifted the arbitration fees onto 

Plaintiff in contravention of this Court’s ruling. The Court

previously held that because the fee-shifting provision in the 

arbitration clause gave unfettered discretion to an arbitrator 

to allocate the entire cost of the arbitration to Plaintiff, 

such provision was unconscionable and unenforceable to the 

extent it “may be construed and applied to require [Plaintiff] 

to shoulder the entire financial burden of the arbitration . . . 

[.]” (Op. [Doc. No. 15] 18-19, June 22, 2011.) Here, however,

Defendant paid the initial fees and there is no indication that 

Defendant ever asked Plaintiff to bear the entire financial 

burden of arbitration. Furthermore, there is no indication that 

the arbitrator has required Plaintiff to shoulder the entire 

financial burden, but has only required Plaintiff to pay a 

filing fee based upon a claim submitted by Plaintiff.

The Court also notes Plaintiff’s argument that the “outcome 

determinative question” is whether the $775 fee submitted by 

Defendant was sufficient to submit all of Plaintiff’s claims to 

arbitration. Plaintiff contends that Defendant should have 

checked the boxes on the initial filing form for injunctive and 

declaratory claims, which would have resulted in a filing fee of

17

Case 1:10-cv-03338-NLH-KMW Document 37 Filed 02/20/15 Page 17 of 18 PageID: 595
$3,350. Because Defendant only paid $775, Plaintiff argues that 

Defendant did not pay a filing fee sufficient to submit all of 

Plaintiff’s claims to arbitration and has thus defaulted. 

The Court will not predict whether the AAA case manager 

would have assessed a $3,350 fee if Defendant had checked 

different boxes on the filing form. Plaintiff never asked the 

AAA case manager to reduce the fee to $3,350, the AAA never 

sought a filing fee in the amount of $3,350, Defendant was never 

invoiced for $3,350, and the case was not withdrawn from 

arbitration based upon the failure to pay a $3,350 filing fee. 

The Court is thus unable to find Defendant in default for 

failing to pay a filing fee that Defendant was never asked to 

pay.

IV. CONCLUSION

For the reasons set forth above, the Court denies 

Plaintiff’s request to lift the stay entered on June 22, 2011 

and directs the parties to return to arbitration.

An Order consistent with this Opinion will be entered.

s/ Noel L. Hillman

At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.

Dated: February 20, 2015

18

Case 1:10-cv-03338-NLH-KMW Document 37 Filed 02/20/15 Page 18 of 18 PageID: 596