American Express Centurion Bank v. Janis Jones (2012)

MEMORANDUM OF DECISION RE MOTION TO DISMISS (110.00)

I. Background

This is an action to collect an alleged debt owed on an American Express credit card.   Initially, the action was returned to court on March 30, 2010 and a default judgment was entered against the non-appearing defendant.   Counsel appeared for the defendant on November 22, 2010, and promptly filed a motion to open the judgment which was granted.   The defendant then moved to dismiss the complaint for lack of subject matter jurisdiction, or in the alternative to stay the proceeding to allow arbitration of the plaintiff's claim.   The plaintiff opposes the motion.

The credit card agreement contains a provision that “any claim shall be resolved ․ by arbitration” if either the card holder or the card issuer elects to do so.   In December 2010 the defendant notified the plaintiff that she elected to proceed by arbitration.

II. Discussion

That part of the motion seeking to dismiss the complaint because the court lacks subject matter jurisdiction is denied.   The Appellate Court pointed out not too long ago that the legislative grant of authority to the Superior Court to stay court proceedings to allow arbitration to go forward, as well as to enforce, modify or vacate arbitration awards (see General Statutes §§ 52–409, 417–19) presupposes that the court has subject matter jurisdiction.   Cabrini v. Erickson, 113 Conn. 195 (2009).   In addition, the public policy favoring arbitration is enhanced by considering the remedy of a stay rather than dismissal because the right of appeal in the latter instance may delay arbitration.  Salim Oleochemicals v. M/V Shropshire, 278 F.3d 90, 93 (2d.   Cir.2002).

General Statutes § 52–409 authorizes the court to stay a legal proceeding before it if it is satisfied that “any” issue involved is referable to arbitration.   The Federal Arbitration Act says practically the same thing.   9 U.S.C. § 3. The plaintiff argues that the defendant has “waived” her right to arbitrate this case by waiting too long.   There is caselaw cited by the plaintiff to support a waiver argument, but the court, after consideration, determines no waiver occurred here.

It is axiomatic that waiver involves the conscious relinquishment of a known right.   The facts in the record do not support a waiver when as soon as counsel appeared and opened the judgment, the defendant elected to arbitrate and filed this motion.   Further, those cases finding a waiver often point to acts by a defendant to avail him or herself of discovery or other rights generally not available in arbitration.   Those actions have not occurred in this case.

III. Conclusion

The motion to dismiss is denied.   The alternative motion to stay proceedings is granted.   The parties are ordered to commence arbitration proceedings consistent with the credit card agreement within twenty days of receipt of this decision.

TAGGART D. ADAMS

JUDGE TRIAL REFEREE

Adams, Taggart D., J.T.R.