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Civil Procedure – arbitration — waiver

By: WISCONSIN LAW JOURNAL STAFF//October 21, 2011//

Civil Procedure – arbitration — waiver

By: WISCONSIN LAW JOURNAL STAFF//October 21, 2011//

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United States Court of Appeals

Civil

Civil Procedure – arbitration — waiver

Filing a brief that objects to a court’s jurisdiction is not participation in litigation from which an intent to waive the right to arbitration can be inferred.

“Contrary to the defendant in Cabinetree, BRP did not commit to a non-arbitral resolution of its dispute with Kawasaki, and thus did not trigger the presumption of waiver. First, BRP did not file a claim or motion in—nor remove a case to—the Texarkana Court. BRP merely responded to Kawasaki’s motion to reopen litigation, which cannot be characterized as a choice for judicial resolution of the dispute. Second, BRP did nothing to suggest that it was willing to have the Texarkana Court decide the merits of its dispute with Kawasaki. Neither the district court’s opinion nor Kawasaki’s brief suggest that BRP even made mention of the merits in its briefing to the Texarkana Court; BRP simply challenged the court’s jurisdictional ability to hear Kawasaki’s claim. In fact, one of BRP’s arguments against the Texarkana Court’s jurisdiction was that the case belonged in arbitration instead of the courts. It is evident, therefore, that BRP did not ‘proceed with litigation,’ and thus no presumption of waiver should be applied.”

Reversed.

11-2120 Kawasaki Heavy Industries, Ltd., v. Bombardier Recreational Products, Inc.

Appeal from the United States District Court for the Southern District of Illinois, Herndon, J., Flaum, J.

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