Consumer Arbitration Agreements: 6.3.2.5 Motions to Dismiss or for Summary Judgment or Otherwise Asking the Court to Address the Merits
Courts hold that a party generally cannot seek to compel arbitration after submitting arguments on the merits of the case to a court by, for example, filing a motion to dismiss or a motion for summary judgment.97 Indeed, some courts suggest that taking an overt act to have a dispute decided on the merits in court automatically waives the right to arbitrate the same dispute.98 This principle of waiver through inconsistent conduct can also apply to threshold questions of arbi