Justices dubious about dismissing suits while waiting for arbitration

ARGUMENT ANALYSIS

Monday’s argument in Smith v. Spizziri was this month’s case below the Federal Arbitration Act. This one explores what a trial court docket can do when it refers a pending swimsuit to arbitration. Part 3 of the FAA says that if the court docket refers the case to arbitration, it “shall on software of one of many events keep the trial of the motion till such arbitration has been had.” The query is whether or not the trial court docket, as a substitute of staying the motion, can go forward and dismiss it solely.

The argument included a good quantity of questioning in regards to the textual content. For instance, early in Daniel Geyser’s argument (arguing for a keep slightly than dismissal), Justice Ketanji Brown Jackson identified that the statute says “keep the ‘trial,’” and commented that “you’ll have a better case if it mentioned keep the ‘continuing’ or keep the ‘motion.’ … You need us to interpret it to be ‘continuing’ or ‘motion,’ however that’s not precisely what it says.”

Then again, Justice Sonia Sotomayor pressed Joshua Rosenkranz (arguing for dismissal as a substitute for a keep) forcefully on her studying of the textual content.

Sotomayor informed Rosenkranz that she couldn’t “put apart the language, which says ‘keep till such arbitration has been had in accordance with the phrases of the settlement,’ so it’s placing a restrict,” she famous. “And it additionally says ‘offering that the applicant for the keep will not be in default in continuing’ … When the applying is made the district court docket can’t inform how lengthy it’s going to be.”

Sotomayor was emphatic: “I can’t learn dismissal into these two situations. In the event that they had been going to allow dismissal, they’d have put ‘keep the motion,’ interval.”

The opposite justices had been listening. Late within the argument, Jackson introduced Rosenkranz again to the identical level, asking how Rosenkranz’s argument was “in step with the language that Justice Sotomayor put ahead. I imply, … the statute says ‘keep till,’ so a minimum of Congress thought that it might come again …?” Justice Brett Kavanaugh adopted up on the identical level, suggesting that the three of all of them see a powerful textual argument in opposition to dismissal.

A a lot larger share of the argument, although, was dedicated to discussing the sensible penalties of dismissal as in comparison with a keep. On that time, the justices who addressed the purpose appeared united within the view that it’s unusual to power a plaintiff to pay two submitting charges for one dispute. Chief Justice John Roberts, for instance, famous to Rosenkranz that “it’s a a lot larger burden if the case isn’t there and one thing arises the place you must go to court docket. You’re going to have to start out throughout.”

Alongside related traces, Jackson mentioned, “The plaintiff says ‘I paid on day one as a result of I introduced this in court docket and it was regardless of the submitting charge is. My case acquired shunted to arbitration. I win. And now you’re saying I’ve to pay one other $500?’”

And Justice Elena Kagan famous that, however, the burden of leaving a case on the docket is trivial: “However, presumably … a district court docket will simply hold an inventory of circumstances now in arbitration, and that checklist will exist in some file someplace, and no person will do something with it, besides if there’s an issue.”

Because the argument closed, sentiment appeared to coalesce on the relative stability of burdens from leaving the case on the docket or refiling. Jackson summarized her sense: “[I]f the case is dismissed, they must really file a brand new motion with the charge and all the pieces else to open up that case … Why isn’t that extra burdensome for the general system than to simply permit the district court docket to place this on an inventory someplace?”

In the identical vein, Roberts opined, “You’re saying that it’s extra bother to let the factor sit there than to file a brand new motion, proper? … It appears to me that the choice could be much more burdensome than simply sitting there.”

Should you’re an arbitration proponent and also you don’t have the chief justice solidly in your camp, it’s laborious to look forward to finding 5 justices to help you. In the identical vein, there aren’t plenty of circumstances the place he agrees with Jackson and that isn’t the profitable aspect of the case.