AAA Arbitration Dispositive Motion

Summary

This template is a dispositive motion you can use in disputes under the American Arbitration Association (AAA) Commercial Arbitration Rules and Mediation Procedures (AAA Rules). The template contains practical guidance and drafting notes. The AAA Rules permit a party to file a dispositive motion only if the arbitrator determines that the moving party has shown it is likely to succeed and the motion will dispose of or narrow the issues in the case. AAA Commercial Arbitration Rules and Mediation Procedures Rules R-34. Dispositive motions may be appropriate, for example, where a claim is barred by the statute of limitations, on the basis of force majeure clause or other contractual provisions, or where the claimant has failed to state a claim. Sometimes parties file dispositive motions for tactical reasons such as to appraise the tribunal of the importance of a particular issue in dispute. If you consider doing so though, be mindful that one of the factors arbitrators must consider in deciding whether to allow dispositive motions is the time and cost associated with the briefing. Rule 34(b). Thus, in addition to demonstrating likelihood of success, the moving party must show that the motion will result in more efficient arbitral proceedings by narrowing the issues of the case. For example, the moving party may show that eliminating a particular issue through dispositive motion will result in narrower discovery, or that a particular issue is outside of the agreement to arbitrate. Parties sometimes use dispositive motions for strategic reasons such as to educate the arbitrator on a particular issue or to solicit the position of their opponents. If the arbitration clause expressly provides for dispositive motions, the arbitrator will typically allow them. In the absence of a provision in the agreement to arbitrate the parties can always agree to the submission of dispositive motions after the dispute has arisen. If you plan on filing a dispositive motion, you may consider approaching opposing counsel to explore reaching a stipulation. AAA decisions on dispositive motions are not publicly available. By way of comparison, some federal courts have interpreted similar language as requiring parties to show "more than [a] mere possibility" of success and instead show a "strong likelihood" that they will prevail. Sindicato Puertorriqueno de Trabajadores v. Fortuno, 699 F.3d 1, 10 (1st Cir. 2012). Other courts have held that the "threshold for establishing likelihood of success is relatively low" and "the plaintiff's chances of prevailing need only be better than negligible." D.U. v. Rhoades, 2016 U.S. App. LEXIS 10141, at *14 (7th Cir. June 3, 2016). Some arbitrators may be cautious about granting summary disposition motions for concern that failing to give parties opportunity to present their case may constitute basis for vacating the award. Courts have affirmed arbitrator decisions granting dispositive motions. S. City Motors, Inc. v. Auto. Indus. Pension Tr. Fund, 2018 U.S. Dist. LEXIS 88452 (N.D. Cal. May 25, 2018 (affirming a summary disposition); NFL Mgmt. Council v. NFL Players Ass'n, 820 F.3d 527 (2d Cir. 2016) (affirming a summary award, emphasizing the narrow judicial review of arbitral awards). Beyond this standard, AAA Rules provide no guidance or standards for the format or contents of a dispositive motion. You have discretion to style it in a way that best suits your argument. Most parties begin with an overview of the facts supporting the motion, followed by a legal argument and request for relief. If the motion is lengthy, you can also include an "Introduction" or "Summary" providing a brief overview. You also may wish to create a table of contents, especially if you use multiple subheadings. Depending on the type of the motion and the relief sought you may include documentary evidence or witness statements to support the motion. The tribunal and the parties typically discuss the need for dispositive motions at the preliminary hearing, and the written scheduling order will address the plan for dispositive motion practice, if any. See AAA Commercial Arbitration Rules and Mediation Procedures Rules P-2(a)(vi). Follow any filing or other instructions specified in the scheduling order. As with any other filing, you must simultaneously provide the opposing party a copy of the motion, along with any supporting documents. You can file the motion through AAA WebFile, located at www.adr.org, or by any other means specified by the arbitrator. For a listing of key content covering AAA Arbitration, see AAA Arbitration Resource Kit. For related practice notes, see AAA Dispositive Motions and AAA Expedited Arbitration Procedures. For related templates, see AAA Demand for Arbitration, AAA Answer with Counterclaims, and AAA/ICDR Arbitrator's Award. For a related flowchart, see AAA Commercial Arbitration Flowchart.