What state law (UT or FL) should apply in a situation such as breach of contract suit whereby plaintiff files in FL against Def who resides in FL and fails to attach contract to its Complaint (as required by FL RCP). Plaintiff uses FL case law in its pleadings. Def. is granted ability to file Amended Answ. which includes Arbitration, then files MTC Arbitration, Order for Arb. is granted. Plaintiff refuses to comply with Order. Counsel for Def files for sanctions. Plaintiff files to vacate Order to Arb (still NO contract in evidence).
At hearing to vacate, Defendants' counsel fails to appear and Defendants, including company, are left unrepresented. Judge calls Def. counsel on phone in open court and suggests oral motion to w/d, which was granted (counsel had not filed to w/d in advance of hearing). Despite non-counsel for company, judge proceeds anyway and vacates his previous order. All of the above is done under FL law. Plaintiff later files MSJ (citing FL law) and at that time attaches alleged contract to MSJ. Def. new atty files Opp to MSJ stating case is improperly before the court. Plaintiff cancels its MSJ hearing and takes no further action. Then recently when court files to dismiss Plaintiff’s case for failure to prosecute, Plaintiff motions for Case Management conference – again under FL law. CMC date is approaching.
However – upon further examination of contract’s fine print by Def., contract states that the laws of UTAH govern the contract -- and further, the contract does now reveal an extensive provision for Arbitration, including terms that ANY claim “shall be resolved, upon the election by you or by us, by arbitration pursuant to this Arbitration Provision and the code of procedures of the national arbitration organization to which the claim is referred in effect at the time the Claim is filed.”
As such, Def. intends now to file Notice of Objection to CMC, and MTD (both at same time) for lack of jurisdiction. But what state law should the Objection and MTD be filed under -- i.e. per above what law should now be applied (as Plaintiff’s atty. at the vacate hearing, for example, had asserted that Def had “waived” right to arbitrate, which Def. now argue and case record shows is incorrect).
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