When is a Motion to Compel Arbitration Filed?

Full Question:

In the state of Georgia, when an Answer to aComplaint is filed with the appropriate Superior Court using right to arbitration as an affirmative defense, is a Motion to Compel required to be filed at the same timeor can it be filed prior to court appearance?
08/16/2011   |   Category: Arbitration and Me...   |   State: Georgia   |   #25335

Answer:

We are unable to find a requirement that a motion to compel arbitration be filed at the same time as the defense, although it may be local practice to do so. We suggest you the clerk of court to obtain a copy of the local rules of court, which vary by court.

Please see the following GA statute:

9-9-6. (a) A party aggrieved by the failure of another to arbitrate may apply. . . .

(a) A party aggrieved by the failure of another to arbitrate may apply for an order compelling arbitration. If the court determines there is no substantial issue concerning the validity of the agreement to submit to arbitration or compliance therewith and the claim sought to be arbitrated is not barred by limitation of time, the court shall order the parties to arbitrate. If a substantial issue is raised or the claim is barred by limitation of time, the court shall summarily hear and determine that issue and, accordingly, grant or deny the application for an order to arbitrate. If an issue claimed to be arbitrable is involved in an action pending in a court having jurisdiction to hear a motion to compel arbitration, the application shall be made by motion in that action. If the application is granted, the order shall operate to stay a pending or subsequent action, or so much of it as is referable to arbitration.

(b) Subject to subsections (c) and (d) of this Code section, a party who has not participated in the arbitration and who has not made an application to compel arbitration may apply to stay arbitration on the grounds that:

(1) No valid agreement to submit to arbitration was made;

(2) The agreement to arbitrate was not complied with; or

(3) The arbitration is barred by limitation of time.

(c) A party may serve upon another party a demand for arbitration. This demand shall specify:

(1) The agreement pursuant to which arbitration is sought;

(2) The name and address of the party serving the demand;

(3) That the party served with the demand shall be precluded from denying the validity of the agreement or compliance therewith or from asserting limitation of time as a bar in court unless he makes application to the court within 30 days for an order to stay arbitration; and

(4) The nature of the dispute or controversy sought to be arbitrated; provided, however, that the demand for arbitration may be amended by either party to include disputes arising under the same agreement after the original demand is served.

(d) After service of the demand, or any amendment thereof, the party served must make application within 30 days to the court for a stay of arbitration or he will thereafter be precluded from denying the validity of the agreement or compliance therewith or from asserting limitation of time as a bar in court. Notice of this application shall be served on the other parties. The right to apply for a stay of arbitration may not be waived, except as provided in this Code section.

(e) Unless otherwise provided in the arbitration agreement, a party to an arbitration agreement may petition the court to consolidate separate arbitration proceedings, and the court may order consolidation of separate arbitration proceedings when:

(1) Separate arbitration agreements or proceedings exist between the same parties or one party is a party to a separate arbitration agreement or proceeding with a third party;

(2) The disputes arise from the same transactions or series of related transactions; and

(3) There is a common issue or issues of law or fact creating the possibility of conflicting rulings by more than one arbitrator or panel of arbitrators.

(f) If all the applicable arbitration agreements name the same arbitrator, arbitration panel, or arbitration tribunal, the court, if it orders consolidation under subsection (e) of this Code section, shall order all matters to be heard before the arbitrator, panel, or tribunal agreed to by the parties. If the applicable arbitration agreements name separate arbitrators, panels, or tribunals, the court, if it orders consolidation under subsection (e) of this Code section, shall, in the absence of an agreed method of selection by all parties to the consolidated arbitration, appoint an arbitrator.

(g) In the event that the arbitration agreements in proceedings consolidated under subsection (e) of this Code section contain inconsistent provisions, the court shall resolve such conflicts and determine the rights and duties of various parties.

(h) If the court orders consolidation under subsection (e) of this Code section, the court may exercise its discretion to deny consolidation of separate arbitration proceedings only as to certain issues, leaving other issues to be resolved in separate proceedings.

(Code 1933, § 7-307, enacted by Ga. L. 1978, pg. 2270, § 1; Code 1981, § 9-9-86; Code 1981, § 9-9-6, as redesignated by Ga. L. 1988, pg. 903, § 1.)