Legal Memorandum: Motion to Compel Arbitration

Issue: When does the threshold element in a motion to compel arbitration, a valid agreement to arbitrate, exist?

Area of Law: Alternative Dispute Resolution, Business Organizations & Contracts, Litigation & Procedure
Keywords: Motion to compel arbitration; A valid agreement to arbitrate; Threshold element
Jurisdiction: Federal
Cited Cases: None
Cited Statutes: Fed. R. Civ. P. 56(e)(1)
Date: 02/01/2009

The court’s determination of whether the parties entered a valid agreement to arbitrate is subject to a standard analogous to the summary judgment standard.  See Par-Knit Mills, 636 F.2d at 54.  Under that standard, the moving party may not simply assert the existence of certain facts, but rather must support its assertions with competent evidence. See Fed. R. Civ. P. 56(e)(1); Woloszyn v. County of Lawrence, 396 F.3d 314, 323 (3d Cir. 2005); Small v. Lehman, 98 F.3d 762, 764-65 n.5 (3d Cir. 1996).  Statements of fact in a party’s brief, not in proper affidavit form, cannot be a basis for granting the motion.  Tunnell v. Wiley, 514 F.2d 971, 975 (3d Cir. 1975) (“The memorandum of law which was submitted in support of the motion could not have sufficed, in the absence of an affidavit or other appropriate sworn statement to support the grant of a motion for summary judgment.”)  Moreover, merely attaching unauthenticated documents to the motion, of course, does not satisfy the moving party’s burden either.  Smith v. Devlin Partners, LLC, No. CIV.A.03-238-KHV, 2004 WL 1490401 (D. Kan. July 2, 2004) (“On this record, defendant has not demonstrated an enforceable agreement to arbitrate.  As an initial matter, defendant has not authenticated the documents which it contends create the arbitration agreement. . . . .  Because defendant has not shown that the parties have a written agreement to arbitrate, an extension of the stay is inappropriate.”).


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