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Detailed Arbitration Pleadings - What are your thoughts?

If a Claimant chooses to file a detailed pleading instead of simply submitting a Demand Form, to what extent should the Claimant be held to any deficiencies in that pleading? For example, if the Claimant pleads certain factual averments but, even if taken as true, they do not rise to the level of a claim, is that an appropriate basis for an arbitrator to dismiss the claim upon the Respondent's motion?

Please provide your thoughts/comments below.

Comments (11)

While it's an advocacy mistake to fail to provide a statement of claim containing a full narrative of the facts giving rise to the dispute, a statement of claim is not a pleading. There are no minimum pleadings requirement under applicable arbitration law or institutional rules, and, therefore, a motion to dismiss would make no sense.

Paul Peter Nicolai:

No.Parties should not be punished for things the rules do not require. If a dispositive motion is going to be considered at all, the party should be allowed to plead and prove whatever facts they wish in the context of the motion.

Detailed statements of claim are regularly required by arbitrators even if Claimant filed a simple Demand form. It would be appropriate to dismiss a claim if the detailed statement is legally deficient based on the facts alleged, but leave to amend should freely be granted so Claimant can cure the deficiency.

Ruth Raisfeld:

Seems to me and under Employment Arbitration Rules as in any litigation, any statement made by either side as to which they verify its truth and accuracy may be considered on a motion, whether by claimant uppon the defense or respondent seekingto dismiss the proceeding. Whether or not the pleading is sufficient to withstand the motion depends on the facts, circumstances and law but certainly the filer should be held to the averments at that stage.

Eric H Holtzman:

A real estate broker is required (at least in New York) to both plead a prove licensure to state a cause of action. In a simple breach of contract case, the claimant is technically required to plead her performance of all obligations of the contract on her part to be performed or that she was wrongfully prevented from doing so by respondent. Dismissal on these technical grounds seems to me inconsistent with the goals of arbitration. Indeed, dismissal in these circumstances should fall into the "no good deed [particularization of the claims] goes unpunished" category. Upon respondents' objection to the detailed claim, leave to amend should be very freely given to claimant to supply the omitted technical allegations.

Judge Gerald Harris:

Dismissing a claim on the face of a pleading is wholly inimical to the raison d’etre of the arbitral process. While dispositive motions may, at some point, become appropriate (though rarely, in my opinion), failure to state a claim is a feature of cumbersome litigation which should not be imported into arbitration. It would be particularly ironic to allow simple demands for relief to suffice yet punish a more fulsome pleader who, perhaps, inartfully sets forth its claim.

Usually the detailed pleading comes as a result of an arbitration that is originally commenced in court and then transferred to arbitration due to an arbitration provision in the parties' agreement. I have granted motions to dismiss complaints that are insufficient as a matter of law, however, always without prejudice, giving the Claimant an opportunity to replead.

I generally agree that "Rule 12" Motions are not appropriate in arbitration proceedings. There can be exceptions after the claimant has been allowed to file a detailed statement of claims. Exceptions should not swallow the rule.

Dani Schwartz:

"Gotcha" litigation tactics have no place in arbitration. Having said that, in New York there is caw law holding that a motion to dismiss a complaint based upon a pleading deficiency (i.e., failure to state a cause of action) can be defeated by remedying the deficiency in an affidavit submitted in opposition to the motion, where the affidavit amplifies the pleading. Presumably, a claimant put on notice of a pleading deficiency in a motion to dismiss is squarely presented with an opportunity to address and remedy the deficiency in response. If the claimant fails or is unable to do so, one may well wonder about the merit of the claim.

Roslyn S. Harrison:

Dismissing a claim upon the Respondent's Motion without an opportunity for the Claimant to respond and amend is definitely not appropriate. Since having an efficient arbitration depends on the parties focusing on the necessary elements of the claim(s), encouraging a detailed statement in outline form is helpful.

While motion to dismiss for failure to state a cause of action or defense is not part of the arbitration landscape, there is no reason that arbitrators cannot make an expeditious determination of one or more manifestly unmeritorious claims or defenses. See https://iccwbo.org/media-wall/news-speeches/icc-court-revises-note-to-include-expedited-determination-of-unmeritorious-claims-or-defences/.

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