Practice Reminder: A Motion to Compel Arbitration Does not Alter the Time to Answer
ABSTRACT: A Motion to Compel Arbitration is not one of the motions under Fed.R.Civ.P. 12(b) that extends the time to answer under Fed.R.Civ.P. 12(a)(1). In order to avoid filing an answer, defendants should file a Motion to Dismiss or, in the alternative, To Compel Arbitration.
During a recent scheduling before the United States District Court for the District of Kansas, the Court sua sponte asked counsel when he intended to answer on behalf of his client. Counsel replied that the defendant had filed a motion to compel arbitration and stay the case. The Court, politely, but firmly, reviewed all of the motions listed under Fed.R.Civ.P. 12(b) and noted that a motion to compel arbitration was not among the motions that would alter the time to answer. The Court gave defendant 10 days to answer.
When moving to compel arbitration pre-answer, please remember the rules and either: (1) file a motion to dismiss, under Fed.R.Civ.P. 12(b)(1) or in the alternative, to compel the parties to arbitrate and stay the case, or (2) prepare to answer within the 21-day time period, under Fed.R.Civ.P. 12(a)(1)(A). Either step will assist in avoiding a default judgment while waiting for a ruling on the motion to compel arbitration.