Richard Sharif v. Wellness International Network, Ltd. (2004)

E.g., Sharif, 376 F.3d at 726-27 (holding that a motion to dismiss or transfer venue does not constitute waiver of one’s right to arbitrate).

E.g., Sharif, 376 F.3d at 726-27 (holding that a motion to dismiss or transfer venue does not constitute waiver of one’s right to arbitrate).

Id. at 726-27.

Id. at 726-27.

Id. at 726.

Id. at 726.

See, e.g., Halim, 516 F.3d at 562 (defendant did not waive arbitration by removing case to fed- eral court and, thirty days later, before any other pleadings were filed, moving to dismiss the case by invoking the arbitration clause); Sharif, 376 F.3d at 726-27 (de- fendant who filed motions to dismiss and did not move to compel arbitration until eighteen months after suit began did not waive arbitration, as defendant did not re- move the case to federal court, there was no t…

Sharif v. Wellness Int’l Network, Ltd., 376 F.3d 720, 726 (7th Cir.2004).

LEXIS 222462 , at *4–5 (citing Sharif, 376 F.3d at 726).

Tenn. Sept. 15, 2022) (“The filing of a dispositive motion, though informative on the matter, does not in and of itself decide the issue of waiver.”); Sharif v. Wellness Int'l Network, Ltd., 376 F.3d 720 , 726 (7th Cir. 2004)(“It is well-established that a party does not waive its right to arbitrate merely by filing a motion to dismiss”); Kirsch, 2017 WL at *5 (“Here, Dean’s filing of a motion to dismiss did not waive his right to compel arbitration”)).

Ind. Dec. 15, 2017) (quoting Sharif v. Wellness Int'l Network, Ltd., 376 F.3d 720 , 726 (7th Cir. 2004) ("Unlike where a party files a motion for summary judgment, 'it is well-established that a party does not waive its right to arbitrate merely by filing a motion to dismiss.'")).

An agreement to arbitrate "must be enforced 'save upon such grounds as exist at law or in equity for the revocation of any contract.'" Hill v. Gateway 2000, Inc., 105 F.3d 1147, 1148 (7th Cir.1997) (quoting 9 U.S.C. § 2 ); see also Sharif v. Wellness Int'l Network, Ltd., 376 F.3d 720 , 726 (7th Cir. 2004) ("The Federal Arbitration Act, however, states that if the parties have an arbitration agreement and the asserted claims are within its scope, the motion to compel cannot b…

Gabriel v. Hamlin, 514 F.3d 734, 737 (7th Cir. 2008); see also Sharif v. Wellness Int’l Network, Ltd., 376 F.3d 720 , 725 (7th Cir. 2004) (“We have repeatedly held that a district court ordinarily may not dismiss a case for want of prosecution without first providing an explicit warning to the plaintiff.”).

An agreement to arbitrate "must be enforced 'save upon such grounds as exist at law or in equity for the revocation of any contract.'" Hill v. Gateway 2000, Inc., 105 F.3d 1147, 1148 (7th Cir.1997) (quoting 9 U.S.C. § 2 ); see also Sharif v. Wellness Int'l Network, Ltd., 376 F.3d 720 , 726 (7th Cir. 2004) ("The Federal Arbitration Act, however, states that if the parties have an arbitration agreement and the asserted claims are within its scope, the motion to compel cannot b…

See Kawasaki, 660 F.3d at 995 (“we have held that a party does not waive its right to arbitrate by filing a motion to dismiss”); Sharif, 376 F.3d at 726 (“[I]t is well-established that a party does not waive its right to arbitrate merely by filing a motion to dismiss.”).

Kawasaki, 660 F.3d at 995 -96 (citing Faulkenberg, 637 F.3d at 807 ); Sharif, 376 F.3d at 726.

Sharif, 376 F.3d at 726 (citation omitted).

In determining whether a party has waived its right to arbitrate I must examine the totality of the circumstances and determine whether “the party against whom the waiver is to be enforced has acted inconsistently with the right to arbitrate.” Ernst & Young, 304 F.3d at 757 (quotations omitted). “[Diligence or the lack thereof should weigh heavily in the decision.” Sharif, 376 F.3d at 726.

See Sharif, 376 F.3d at 726; see also HOVENSA, LLC., 369 F.3d at 269 .

The arbitrability of a dispute is a “gateway” issue, meaning that “a court should address the arbitrability of the plaintiff’s claim at the outset of the litigation.” Reyna v. Int’l Bank of Commerce, 839 F.3d 373, 376, 378 (5th Cir. 2016); see also Silfee v. Automatic Data Processing, Inc., 696 F. App’x 576, 577 (3d Cir. 2017) (unpublished) (“[A]fter a motion to compel arbitration has been filed, the court must ‘refrain from further action’ until it determines arbitrability.…

When a motion to dismiss raises jurisdictional or procedural arguments for dismissal, the party has not "submit[ed] the case to the court for a decision that resolves the dispute." Kawasaki , 660 F.3d at 995 ; accord Sharif v. Wellness Int'l Network, Ltd ., 376 F.3d 720 , 727 (7th Cir. 2004).

When a motion to dismiss raises jurisdictional or proce‐ dural arguments for dismissal, the party has not “submit[ed] the case to the court for a decision that resolves the dispute.” Kawasaki, 660 F.3d at 995 ; accord Sharif v. Wellness Int’l Net‐ work, Ltd., 376 F.3d 720 , 727 (7th Cir. 2004).

When a motion to dismiss raises jurisdictional or proce‐ dural arguments for dismissal, the party has not “submit[ed] the case to the court for a decision that resolves the dispute.” Kawasaki, 660 F.3d at 995 ; accord Sharif v. Wellness Int’l Net‐ work, Ltd., 376 F.3d 720 , 727 (7th Cir. 2004).

When a motion to dismiss raises jurisdictional or proce‐ dural arguments for dismissal, the party has not “submit[ed] the case to the court for a decision that resolves the dispute.” Kawasaki, 660 F.3d at 995 ; accord Sharif v. Wellness Int’l Net‐ work, Ltd., 376 F.3d 720 , 727 (7th Cir. 2004).

See, e.g., Sharif v. Wellness International Network, Ltd., 376 F.3d 720 , *938 726 (7th Cir.2004); Cabinetree of Wisconsin, Inc. v. Kraftmaid Cabinetry, Inc., 50 F.3d 388, 391 (7th Cir.1995); St.

See Hooper, 589 F.3d at 922 , citing Sharif v. Wellness Int’l Network, Ltd., 376 F.3d 720 , 726-27 (7th Cir.2004) (finding no waiver by a party that had filed a Rule 12(b)(6) motion), Rush v. Oppenheimer & Co., 779 F.2d 885, 886-88 (2d Cir.1985) (same), and Sweater *864 Bee, 754 F.2d at 463 (finding no waiver where dismissal of an arbitrable claim was a “ruling on the merits”).

This conclusion is bolstered by our more recent case law, where we have held that a party does not waive its right to arbitrate by filing a motion to dismiss. 5 *996 Faulkenberg v. CB Tax Franchise Systems, 637 F.3d 801, 807 (7th Cir.2011); see also Sharif v. Wellness Int’l Network, Ltd., 376 F.3d 720 , 726 (7th Cir.2004) (“[I]t is well-established that a party does not waive its right to arbitrate merely by filing a motion to dismiss.”).

See, e.g., Sharif v. Wellness Int’l Network, Ltd., 376 F.3d 720 , 726 (7th Cir. 2004) (stating “it is well-established that a party does not waive its right to arbitrate merely by filing a motion to dismiss”) (citations omitted); Rush v. Oppenheimer & Co., 779 F.2d 885, 888 (2d Cir. 1985) (similar); see also Dumont, 258 F.3d at 886-87 (declining to find waiver where the party “took no action with respect to the merits of the case prior to the district court ordering arbitrat…

See, e.g., Sharif v. Wellness Int’l Network, Ltd., 376 F.3d 720 , 726 (7th Cir.2004) (stating “it is well-established that a party does not waive its right to arbitrate merely by filing a motion to dismiss”) (citations omitted); Rush v. Oppenheimer & Co., 779 F.2d 885, 888 (2d Cir.1985) (similar); see also Dumont, 258 F.3d at 886-87 (declining to find waiver where the party “took no action with respect to the merits of the case prior to the district court ordering arbitratio…

See Sharif v. Wellness Int’l Network, Ltd., 376 F.3d 720 , 725 (7th Cir. 2004) (noting that a district court ordinarily must provide plaintiff with explicit warning before dismissing for want of prosecution).

See Sharif v. Wellness Int’l Network, Ltd., 376 F.3d 720 , 725 (7th Cir.2004) (“Because a plaintiff may refile the same suit on the same claim, dismissal without prejudice does not constitute such a harsh sanction and does not foreclose a determination on the merits.”).

See, e.g., Sharif v. Wellness Int'l Network, Ltd., 376 F.3d 720 , 725 (7th Cir.2004); Aura Lamp & Lighting, Inc. v. Int’l Trading Corp., 325 F.3d 903 , 908 (7th Cir.2003).

See Silfee v. Automatic Data Processing, Inc., 696 F. App’x 576, 577 (3d Cir. 2017) (holding that “the District Court erroneously ruled on [the defendant’s] motion to dismiss before resolving its motion to compel arbitration” and noting that “after a motion to compel arbitration has been filed, the court must ‘refrain from further action’ until it determines arbitrability” (quoting Sharif v. Wellness Int’l Network, Ltd., 376 F.3d 720 , 726 (7th Cir. 2004)); Manopla v. United…

See Silfee v. Automatic Data Processing, Inc., 696 F. App’x 576, 577 (3d Cir. 2017) (holding that “the District Court erroneously ruled on [the defendant’s] motion to dismiss before resolving its motion to compel arbitration” and noting that “after a motion to compel arbitration has been filed, the court must ‘refrain from further action’ until it determines arbitrability” (quoting Sharif v. Wellness Int’l Network, Ltd., 376 F.3d 720 , 726 (7th Cir. 2004)); Manopla v. United…

(Dkt. 11 at 16–18; Dkt. 18 at 6.) As a general matter, a court must grant a motion to compel arbitration where the parties have a written arbitration agreement and the asserted claims are within its scope. 9 U.S.C. §§ 3–4; see also Sharif v. Wellness Int’l Network, Ltd., 376 F.3d 720 , 726 (7th Cir. 2004).

See Silfee v. Automatic Data Processing, Inc., 696 F. App’x 576, 577 (3d Cir. 2017) (citing Sharif v. Wellness Int’l Network, Ltd., 376 F.3d 720 , 726 (7th Cir. 2004)).

See Silfee v. Automatic Data Processing, Inc., 696 F. App’x 576, 577 (3d Cir. 2017) (citing Sharif v. Wellness Int’l Network, Ltd., 376 F.3d 720 , 726 (7th Cir. 2004)).

See McInnis, 697 F.3d at 664 ; see also Sharif v. Wellness Int’l Network, Ltd., 376 F.3d 720 , 725 (7th Cir. 2004) (“We have repeatedly held that a district court ordinarily may not dismiss a case for want of prosecution without first providing an explicit warning to the plaintiff.” (citations omitted)).

See Sharif v. Wellness Int’l Network, Ltd., 376 F.3d 720 , 726 (7th Cir. 2004) (“diligence or the lack thereof should weigh heavily in [determining whether a party has waived the right to arbitrate] —did that party do all it could reasonably have been expected to do to make the earliest feasible determination of whether to proceed judicially or by arbitration?”) (Internal quotations omitted).

See McGuirt, 114 F. App’x at 559 (observing that dismissal under Rule 8 is an “extreme sanction”); see also Sharif v. Wellness Int’l Network, Ltd., 376 F.3d 720 , 725 (7th Cir. 2004) (holding that a court may dismiss a complaint without prejudice for noncompliance with Rule 8 absent an explicit warning because “dismissal without prejudice does not constitute such a harsh sanction and does not foreclose a determination on the merits”); Cook v. Unisys Fed.

See Sharif, 376 F.3d at 723 (describing the new suit, styled as a class action, as Budner v. Murnighan, No. 03 C 2100 (N.D.

See Sharif, 376 F.3d at 723 (describing the new suit, styled as a class action, as Budner v. Murnighan, No. 03 C 2100, 2003 WL 21544236 (N.D.Ill.

See Sharif v. Wellness Int'l Network, Ltd., 376 F.3d 720 , 723, 726 (7th Cir.2004) ("[T]he [district] court refused to consider the merits of the motion to compel arbitration because of the pending venue challenge.

See, also, Sharif v. Wellness Int'l Network, Ltd. , 376 F.3d 720 , 726-27 (7th Cir.2004) ("[I]t is well-established that a party does not waive its right to arbitrate merely by filing a motion to dismiss.