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When Seeking to Compel Arbitration, a Motion to Dismiss Is Sometimes the First Step

The Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1, et seq., provides the usual means of enforcing an arbitration agreement by compelling a party to arbitrate rather than litigate. Thus, the FAA enables an aggrieved party to seek “an order directing that such arbitration proceed in a manner provided for in such agreement.” 9 U.S.C. § 4.

However, when (i) a judicial proceeding concerning the claims in question is already pending, and (ii) the applicable arbitration agreement provides that the place of arbitration is outside of the jurisdiction of the federal district court hearing the pending suit, a motion to that court under Fed. R. Civ. P. 12(b)(3) to dismiss the pending suit for improper venue is the correct means of attacking the judicial proceeding, rather than a motion under the FAA (a) to stay it or (b) to compel arbitration. See, e.g., Faulkenberg v. CB Tax Franchise Sys., LP, 637 F.3d 801, 808 (7th Cir. 2011).

A further motion to compel in a court with jurisdiction in the designated place of arbitration may still be necessary. And jurisdiction issues might then abound if it is.

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Gilbert A. Samberg is a Mintz litigator with extensive experience in complex international and domestic commercial disputes. He focuses on international litigation arbitration and other cross-border alternative dispute resolution proceedings, and is a regular commentator on current topics in those areas. He often draws on his science background to assist companies with disputes concerning technical matters.