U.S. Aprons v. Z-TEX

Filing 95

MEMORANDUM AND ORDER granting plaintiff's motion to continue, (filing no. 91 ). The plaintiff is given until November 25, 2009 to file its brief in response to defendants motion to stay for arbitration. Any reply brief shall be filed on or before December 1, 2009. Ordered by Judge Richard G. Kopf. (JAB)

IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF NEBRASKA U .S . APRONS, Inc., A Nebraska C o r p o r a ti o n , Plaintiff, V. R -F IV E , Inc., Defendant. ) ) ) ) ) ) ) ) ) )

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M E M O R A N D U M AND ORDER

T h e plaintiff's complaint was filed on May 1, 2008. Over the eighteen months th e r e a fte r, the parties engaged in mediation to resolve the case, and participated in o n g o in g discovery to prepare for trial. The pretrial conference is scheduled to be held o n January 11, 2010 in North Platte, with the trial set for February 16, 2010. The defendant moved to stay the case for arbitration on November 6, 2009, and m o v e d for summary judgment on November 13, 2009. The plaintiff requests a d d itio n a l time to file its brief in opposition to defendant's motion to stay for a rb itra tio n . Filing No. 91. Without commenting on whether an arbitration right ever e x is te d , under the facts presented, the court questions whether the defendant waived a n y such right by demanding arbitration during the late stages of the litigation process, a n d by moving for summary judgment after filing a motion to stay for arbitration. See e .g ., Lewallen v. Green Tree Servicing, L.L.C., 487 F.3d 1085, 1090 (8th Cir. 2007). S e e also, Fed. R. Civ. P. 8(c)(listing "arbitration and award" as an affirmative defense).

A c c o r d in g ly , IT IS ORDERED: 1) T h e plaintiff's motion to continue, (filing no. 91), is granted, and the p la in tiff is given until November 25, 2009 to file its brief in response to d e fe n d a n t' s motion to stay for arbitration. A n y reply brief shall be filed on or before December 1, 2009.

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DATED this 20 th day of November, 2009. B Y THE COURT: R ich a rd G. Kopf U n ite d States District Judge

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