REVERSING TRIAL COURT, TENTH CIRCUIT FINDS NO WAIVER OF RIGHT TO ARBITRATE
Phillip Hill sued his former employer in federal court, alleging retaliatory discharge. His former employer, Ricoh Americas Corp., answered the complaint, and the parties engaged in a Rule 26 pre-trial conference to set discovery and trial deadlines. Shortly thereafter, and approximately four months after suit had been filed, Ricoh moved to compel arbitration based on a provision in Hill’s original employment contract with Ricoh’s predecessor-in-interest. The district court denied the motion to compel on waiver grounds and Ricoh appealed. The Tenth Circuit found no waiver, quickly disposing of Hill’s argument that Ricoh failed to raise “arbitration and award” as an affirmative defense with its answer, as Hill asserted was required under Rule 8, noting that the provision only applies to completed arbitrations. The Tenth Circuit then analyzed several factors to determine whether Ricoh had waived its right to arbitrate, and found that on balance of the factors, it had not. Key to this analysis was that Ricoh had engaged in “minimal litigation activity,” and that there was “no evidence in the record that Ricoh intentionally and knowingly relinquished its right to demand arbitration.” It remanded with instructions to compel arbitration. Hill v. Ricoh Americas Corp., No. 09-3182 (10th Cir. April 19, 2010).
This post written by John Pitblado.
