Does Motion for Extension of Time Waive Rights in Arbitration?

Revised Florida Arbitration Code

The Revised Florida Arbitration Code was initially signed into law in 1957, with the revision of the Code being adopted in 2013. As the Florida Bar Association states, the Revised Florida Arbitration Code is composed of three distinct sections:

  1. Pre-arbitration matters, such as scope of law that will govern the proceeding.
  2. The arbitration proceeding itself, such as the rules governing the conduct of the arbitrator and the arbitration proceeding itself, the ability of the arbitrator to grant awards and remedies, etc.
  3. Post-arbitration matters. This includes the procedure and standard for confirmation, modification, and vacatur of the award.

The FAA also preempts state law in favor of arbitration provisions in contracts involving interstate commerce (unless the parties contract around that in the contract itself).

How do Courts Look at Arbitrability?

Florida courts, similar to federal courts, generally resolve disputes involving the issue of arbitrability, in favor of arbitration. The Florida Supreme Court has stated that “courts [will] indulge every reasonable presumption to uphold proceedings resulting in an award.” Roe v. Amica Mut. Ins. Co., 533 So. 2d 279, 281 (Fla. 1988).

In determining whether arbitration should apply to a dispute, Florida Supreme Court developed a three-prong test that is called the Seifert test. The test asks these three questions: 1) whether a valid agreement to arbitrate exists; 2) whether an arbitrable issue exists; and 3) whether the right to arbitration has been waived.

Does a Motion for Extension of Time Waive the Right to Compel Arbitration?

Probably not. Although the law is not clear on this issue, a motion for extension of time may not waive the right to compel arbitration. The Motion should clearly include proof that there is an agreement between the parties and that the Seifert test discussed above has been satisfied. A copy of the arbitration agreement should be attached to the Motion. A Motion for Protective Order to Limit Discovery to Arbitration Issues can also be filled in such a case. This Motion would limit discovery to arbitration issues and operate under a court order which confirms that there was no waiver to the right of arbitration. Filling this Motion would satisfy the third prong of the Seifert test. This will also prevent the plaintiff from engaging in broad discovery when the defendant is attempting to compel arbitration.

Does a Motion for Extension of Time Waive Jurisdictional Defenses?

No, it does not. According to Benedetto v. U.S. Bank Nat. Ass’n, “Where a defendant files a motion for extension of time to answer a complaint, the defendant does not submit to the jurisdiction of the court or waive the defense of lack of jurisdiction for failure of service of process.” Benedetto v. U.S. Bank Nat. Ass’n, 181 So.3d 564, 567 (Fla. 2015). A filing of a motion for extension of time does not constitute a “general appearance” before the court. DiGiovanni v. BAC Home Loans Servicing, L.P., 83 So.3d 934, 935 (Fla. 2d DCA 2012).

Rule 12(b) of Federal Rules of Civil Procedure requires only that the motion asserting the defense be filed prior to pleading.

Does a Motion for Extension of Time Waive the Right to File a Motion to Quash?

No, it does not. In Green Emerald Homes, LLC v. PNC Bank, N.A., the District Court of Appeal of the Fifth District of Florida reversed the trial court’s order denying the Appellant’s motion to quash defective service of process in that case. The District Court relied on DiGiovanni v. BAC Home Loans Servicing, L.P., also stating that a filing of a motion for extension of time does not constitute a “general appearance” before the court. DiGiovanni v. BAC Home Loans Servicing, L.P., 83 So.3d 934, 935 (Fla. 2d DCA 2012). Therefore, the Court upheld the filing of a motion to quash after a motion for extension of time or a notice of appearance.

 


If you have questions regarding arbitration provisions in your contract or filing motion for extension of time, do not hesitate to contact one of our experienced lawyers at EPGD Business Law, EPGD Business Law is located in beautiful Coral Gables, West Palm Beach and historic Washington D.C. Call us at (786) 837-6787, or contact us through the website to schedule a consultation.

*Disclaimer: this blog post is not intended to be legal advice. We highly recommend speaking to an attorney if you have any legal concerns. Contacting us through our website does not establish an attorney-client relationship.*

Categories: Business Law | Business Litigation | Business Partnership Disputes | Civil Litigation

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