Savage v. Hatcher

Full title: Lonnie J. Savage, Plaintiff, v. Stephen J. Hatcher, et al., Defendants

Court: United States District Court, S.D. Ohio, Eastern Division

Date published: Apr 27, 2009

Case No. 2:01-cv-0089 (S.D. Ohio Apr. 27, 2009)

Opinion

Case No. 2:01-cv-0089.

April 27, 2009

ORDER

GEORGE SMITH, District Judge

Plaintiff Lonnie J. Savage initiated this case on January 30, 2001, against Defendants Stephen J. Hatcher Esq., Stephen J. Hatcher Co., L.P.A. (collectively "Hatcher Defendants"), and Buckeye Check Cashing, II, Inc. d/b/a/Express Payroll Advance ("Express"). Plaintiff alleges violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq., and violations of the Ohio Consumer Sales Practices Act ("OCSPA"), O.R.C. § 1345.01 et seq. This matter is before the Court on Plaintiff's Motion to Lift Stay; Motion to Declare Defendants' Waiver of and Estoppel to Further Demand Arbitration; and Motion to Reinstate for Adjudication the Class Certification and Dispositive Motions pending on May 31, 2005 (Doc. 93). Defendant Express responded and also filed a Motion to Dismiss Plaintiff's Claims for Failure to Prosecute (Doc. 94). The Hatcher Defendants have filed a response in support of the Defendant's Motion to Dismiss (Doc. 96).

I. PROCEDURAL HISTORY

Defendant Express originally filed a motion to stay proceedings and compel arbitration on March 16, 2001 (Doc. 7). Subsequently, the Hatcher Defendants filed a motion for judgment on the pleadings on March 19, 2001 (Doc. 12). The Court granted the Hatcher Defendants' Motion on March 7, 2002 (Doc. 33), dismissing the federal claim. Since all federal claims were dismissed, the Court refused to exercise supplemental jurisdiction over the state law claims. The Sixth Circuit later partially reversed the decision and remanded the case back to this Court. See Savage v. Hatcher, No. 03-3437 (6^th Cir. Sep. 7, 2004). Both the Plaintiff and the Hatcher Defendants have since filed motions for summary judgment. Defendant Express once again filed a motion to stay the proceedings and to compel arbitration, or in the alternative to dismiss or for summary judgment. On May 31, 2005, the Court granted Defendant's motion to stay and compel arbitration and dismissed the pending motions for summary judgment without prejudice (Doc. 87).

Now, approximately three years later, Plaintiff is back before the Court requesting the Court lift the stay and order compelling arbitration because the arbitration has not taken place. Defendants oppose Plaintiff's motion and have also filed a motion to dismiss Plaintiff's claims for failure to prosecute.

II. DISCUSSION

Despite this Court's Order compelling arbitration on May 31, 2005, the parties still have not participated in arbitration. Plaintiff represents to the Court that he submitted his demand for arbitration on September 22, 2006.¹ Plaintiff argues that Defendants have refused to arbitrate. Defendants, however, argue that the American Arbitration Association ("AAA") never received Plaintiff's demand for arbitration and that they were never contacted by the AAA. There appears to have been some confusion as to what parties were to participate in the arbitration proceedings. Plaintiff should have immediately contacted to the Court to resolve this issue, but instead has let this matter drag out.

The Court orders the parties to comply with the Court's previous May 31, 2005 Order compelling arbitration. While the Court's previous Order states that it only has the authority to compel Plaintiff and Defendant Express to participate in the arbitration pursuant to the terms of the Contract at issue in this case, the Court encourages Defendants Stephen Hatcher Esq. and Stephen Hatcher Co., L.P.A. to also participate in the arbitration proceedings because the nature of the claims are so intertwined.

Plaintiff shall file an arbitration demand with the AAA on or before July 1, 2009. All Defendants shall respond to Plaintiff's demand in writing within ten days of receipt of the claim as instructed by the AAA. It is Plaintiff's obligation to ensure that all the necessary steps have been taken to begin the arbitration process. If Plaintiff encounters any problems with respect to initiating the arbitration or failure of the Defendants to respond to the arbitration demand, Plaintiff's counsel should immediately contact the Magistrate Judge's chambers to set up a conference to resolve the dispute. If Plaintiff fails to initiate the arbitration as ordered, the Court will seriously consider Defendants' Motion to Dismiss for Failure to Prosecute.

Therefore, pursuant to the Federal Arbitration Act ("FAA"), 9 U.S.C. § 1 et seq., the case shall remain stayed throughout the duration of the arbitration proceedings. The Court "shall . . . stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement. . . ." 9 U.S.C. § 3.

The parties are instructed to file a status report on or before September 1, 2009, regarding the status of the arbitration proceedings. Upon completion of the arbitration proceedings, the parties shall file another status report with the Court including the outcome of the arbitration proceedings and what claims, if any, remain for the Court to address.

The Court denies Defendant Express's Motion to Dismiss without prejudice. This motion, as well as the summary judgment motions, shall be subject to renewal upon completion of the arbitration if appropriate.

III. DISPOSITION

For all of the foregoing reasons, the Court DENIES Plaintiff's Motion to Lift Stay, Declare Defendants' Waiver of and Estoppel to Further Demand Arbitration, and Reinstate for Adjudication the Class Certification and Dispositive Motions Pending on May 31, 2005 (Doc. 93). The case shall remain stayed pending the arbitration proceedings.

The Court also DENIES Defendant Express's Motion to Dismiss without prejudice (Doc. 94).

The Clerk shall remove Documents 93 and 94 from the Court's pending motions list.

IT IS SO ORDERED.