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Wright v. Jerry Fulks & Co.10/31/2005
ve defense of arbitration. In Fisher, the court recognized that '{a}ny extra expense incurred as a result of the Fishers' deliberate choice of an improper forum, in contravention of their contract, cannot be charged to {the defendant}.' Fisher, 791 F.2d at 698. However, the Fisher court held that the defendant had not acted inconsistent with the agreement to arbitrate solely because the defendant did not have a legal right to enforce the arbitration agreement earlier in the proceedings. Fisher, 791 F.2d at 697; Steele, 85 Wn. App. at 858-59. Here, unlike the defendant in Fisher, Fulks did not have good cause to delay moving to compel arbitration. See Van Ness Townhouses, 862 F.2d at 759; Steele, 85 Wn. App. at 853, 858-59 (recognizing that a finding of prejudice is dependent on the totality of the circumstances in each case, and the result reached in one case does not necessarily create a bright line rule for another case).
In Hilti, the First Circuit recognized that Hilti shared equal fault in the delay in demanding arbitration because it failed to move to strike arbitration as an affirmative defense. Hilti is also distinguishable from this case. In Hilti, the defendant asserted its right to arbitration several times and the validity of the arbitration agreement was disputed. See Hilti, 392 F.2d at 370-71. Under the circumstances, the Hilti court concluded there was no reason for Hilti to believe that the defendant had waived arbitration and any prejudice incurred by moving forward with judicial proceedings, without resolving the issue of arbitration, was partially Hilti's fault. In this case, however, Fulks abandoned the issue of arbitration for nearly two years and aggressively engaged in discovery and pretrial litigation up to the day of trial. Unlike Hilti, Wright had every reason to believe that Fulks had waived arbitration.
Fulks contends that Wright's expenditures do not show sufficient prejudice for waiver because the same discovery was necessary for the non-arbitrable claims brought by Wright. To support its position, Fulks relies on Fisher, 791 F.2d 691, Hunt v. Up North Plastics, 980 F. Supp. 1046 (8th Cir. 1997), and Terminix Int. Co. v. Jackson, 669 So.2d 893 (Ala. 1995). In those cases, the court did not find prejudice because a substantial part of the discovery and litigation was necessary to adjudicate the non-arbitrable claims as well as the arbitrable claims. See Fisher, 791 F.2d at 697; Hunt, 980 F. Supp. at 1048; Terminix, 669 So.2d at 896.
By contrast, in this case Wright's non-arbitrable claims against Fulks were dismissed on partial summary judgment on September 16, 2003, five months before trial was scheduled to begin. Yet Fulks continued to actively engage in the judicial proceedings on Wright's contractual claims against it. Fulks noted several more depositions; requested review of documents and the premises; filed supplemental ER 904 submissions; objected to Wright's ER 904 submission, filed an opposition to Wright's motion to enforce the discovery cutoff date, filed two motions for judgment on the pleadings under CR 12(c), filed motions in limine regarding Wright's expert witnesses; jury instructions; and a trial brief. A substantial portion of Wright's expense is directly attributable to litigation of the contract claims against Fulks, which Fulks could have moved to arbitrate.
Finally, Fulks argues that Wright did not suffer prejudice because the parties would have engaged in the same discovery and motions under the rules of arbitration. Although there are similarities between arbitration rules and court rules, as demonstrated by J.A.M.S. Rule 17, arbitration rules are far less formal and more limited than court rules. J.A.M.S. Rule 17 provi
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