September 10, 2021

The Eighth Circuit Court of Appeals held that HomeServices of America Inc. waived its right to arbitrate claims, affirming an Order from the Western District of Missouri.

“A party cannot keep a contractual right to arbitration in its back pocket and pull it out only when it is ready for a ‘do over,'” U.S. Circuit Judge David R. Stras wrote for the panel. “It is not as if HomeServices lacked opportunities along the way. Indeed, it took 305 days before it finally moved to compel arbitration.”

The Panel held that not only did HomeServices of America Inc. join other defendants in motions to transfer and to dismiss, but also “[I]t negotiated a proposed scheduling order and participated in a scheduling hearing. And when the district court finally denied the earlier motions, it replied to written discovery, filed an answer, and even joined a motion to amend the scheduling order it had previously negotiated,” the opinion said. “These are hardly the actions of a party trying to move promptly for arbitration.”

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