Petition for Writ of Certiorari — Uwaydah v. Van Wert County Hospital

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1; FILe®

02 958 DEC 1 72002

Supreme Court of the Anited States

MUNIR M. UWAYDAH, M.D.

Petitioner,

v.

VAN WERT COUNTY HOSPITAL , et. al.

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

a

Michael P. Harvey

Counsel of Record

c/o Michael P. Harvey Co., L.P.A.

311 Northcliff Drive

Rocky River, Ohio 44116

(440) 356-9108

Attorney for Petitioner

MICHAEL P. HARVEY CO., LP.A. © (440) 356-9108 * WWW.MPHARVEYLAW.COM

ree ee a ena:

1

QUESTIONS PRESENTED

1. Is an interlocutory Order denying a Motion to Compel

Arbitration pursuant to the Federal Arbitration Act, 9 U.S.C. § 16

timely filed over thirty (30) days from the written Order?

y 5 If a litigant voluntarily withdraws his first appeal, which was

timely filed, at the request of the district court to issue a written

Opinion on the same subject matter, should the Appellant be allowed

to refile his previously dismissed appeal beyond thirty (30) days from

the written decision?

ne

ii

PARTIES TO THE PROCEEDING

The only parties are named in the caption of this Petition. The parties

are: .

Petitioner: | Munir M. Uwaydah, M.D. (“Dr. Uwaydah”), an

individual.

Respondent: Petitioner states that Van Wert County Hospital is

a non-profit organization which does business in

Van Wert County, Ohio.

iii

TABLE OF CONTENTS

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PARTING TO THE PROCEEDING ..ccccccccccccccccccccccscccccs fb

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TABLE OF AUTHORITIES ..........eeceeee. Vikneatawer ovectann OO

EER Te TTT eee Tee TT ETT TT ETE E Tee

JURISDICTION ...... ih oeedkedin d ct atatue ose eceseecesesceens

STATUTORY AND ADMINISTRATION PROVISIONS INVOLVED .....

STATEMENT OF THE CASE ........--ee00; eee Aide aoa ek at Mz

Nv N HN WN

A. NATURE OF THE CASE...... SS Pe Pe ae :

B. COURSE OF PROCEEDINGS AND DISPOSITION

i re kc pcacddeebecesbvossce

REASONS FOR GRANTING THE WRIT ...........scccecsesccseeee’

CONCLUBION. .ccccscccscces ec cccccccccces Serrrrr rer eee ee . 10

+

lv.

TABLE OF AUTHORITIES

CASES

Dean Witter Reynolds, Inc. v. Byrd, 470 US. 213 (1995) ............ 9

Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52 (1995) ...5

Mitsubishi Motors Corp. v. Solar Chrysler-Plymouth, inc.,

GS A BG ha scsi ccvnckanveneracierertaasecwonss 5, 6

Moses H. Cohn Memorial Hospital v. Mercury Constr. Corp.,

GOB ULE. 3 CII UE. on: 6 o.0004 seen nnn tigetnecesecedpipetecsséess 9

Shearson, American Express, Inc. v. McMahon, 482 U.S. 220 (1997) 7, 10

Southland Corp. v. Keating, 465 U.S. 1 (1984) ..............--005- 6

FEDERAL STATUTES

9US.C. §2

9US.C.§4

9US.C. § 16

9 U.S.C. § 16(a(1)(A)

28 U.S.C. § 1254(1)

28 U.S.C. § 1291

28 U.S.C. § 2107

28 U.S.C. § 2107(a)

28 U.S.C. § 1332

APPENDI

November 5, 2002 Decision of the United States

Court of Appeals for the Sixth Circuit ............... eee eee eens

June 24, 2002 Order of the United States District Court,

Northern District of Ohio (Western Division) ................++.

Request to Withdraw Interlocutory Appeal Without Prejudice ....

October 2, 2002 Letter to Clerk Leonard Green ..................

|

IN THE

SUPREME COURT OF THE UNITED STATES

MUNIR M. UWAYDAH, M.D. .

Petitioner,

v.

VAN WERT COUNTY HOSPITAL, et al.

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

DR. MUNIR M. UWAYDAH, Petitioner, by the undersigned

counsel, under appropriate rules of this Court, requests that this Court

issue a writ of certiorari to the United States Court of Appeals for the

Sixth Circuit.

OPINIONS BELOW

The November 5, 2002 Opinion of the Sixth Circuit Court of

Appeals, which judgment is sought to be reviewed is printed in

Appendix A to this Petition. The Circuit Court dismissed Petitioner's

appeal as being sua sponte untimely. The Sixth Circuit found that even

though Petitioner withdrew his first appeal without prejudice so that

the district court could issue a written Opinion on the same subject,

which was the denial of a Motion to Arbitrate, that in a civil case the

Notice of Appeal must be filed within thirty (30) days of the entry of

Judgment or be untimely.

The written Decision of the United States District Court for the

Northern District of Ohio (Western Division) that was to be reviewed

2

by the Sixth Circuit Court of Appeals is appended in Appendix B to

this Petition. The District Court denied Petitioner’s right to arbitrate

required in the underlying contractual documents by and between the

parties, primarily because the Court contended that the Petitioner

waived the right to arbitrate.

JURISDICTION

The Judgment sought to be reviewed was entered by the Sixth

Circuit Court of Appeals on November 5, 2002. This Judgment is set

forth in Appendix A. Jurisdiction for the Sixth Circuit and District

Court was invoked through the Federal Arbitration Act, 9 U.S.C. § 16

and 28 U.S.C. § 1291 et seq. This Court has jurisdiction to review the

Judgment of the Sixth Circuit Court of Appeals under 28 U.S.C.

§ 1254(1).

STATUTORY AND ADMINISTRATION PROVISIONS

INVOLVED

a) The Federal Arbitration Act, 9 U.S.C. § 16.

b) 28U.S.C. § 2107.

STATEMENT OF THE CASE

A. Nature of the Case

This action arises from Van Wert County Hospital's failure to

initiate arbitration which was required by the underlying contractual

documents.

Dr. Uwaydah requested, via Motion, an Order to stay or

compel arbitration. The District Court found it had jurisdiction

pursuant to 28 U.S.C. § 1332. And, the Court found that resolution of

the Motion was governed by the Federal Arbitration Act, 9 U.S.C. § 1,

et seq. However, the Court denied the Motion, finding that the

Petitioner had waived his right to arbitration.

Dr. Uwaydah filed a timely Notice of Appeal with the Sixth

Circuit Court of Appeals from the Order on May 9, 2002. Shortly

thereafter, however, the district court requested that the Notice of

Appeal be withdrawn so that a written Opinion on the same subject

could be entered. Counsel for Petitioner agreed to this request.

Thereafter, the Court issued its written Opinion, which is attached

hereto as Appendix B. The appeal was taken again on the same issue

and the Sixth Circuit Court issued a written Opinion finding that

although a first appeal on the same subject was filed and withdrawn

voluntarily and without prejudice, the refiled appeal was untimely.

The basis for the interlocutory appeal was the refusal of the

District Judge to issue a decision on then plaintiff Dr. Uwaydah’s

Motion to Compel Arbitration or to Stay the Matter pending

arbitration pursuant to the Federal Arbitration Act.

4

REASONS FOR GRANTING THE WRIT

THIS COURT SHOULD GRANT CERTIORARI TO

CLARIFY THAT THE FEDERAL ARBITRATION

ACT ALLOWS AN INTERLOCUTORY APPEAL

EVEN BEYOND THIRTY (30) DAYS UNDER THE

CIRCUMSTANCES OF THIS CASE.

Nothing in 9 U.S.C. § 16 requires an appeal denying a Motion

to Stay and denying a Motion to Compel Arbitration must be filed

within thirty (30) days from the Decision. The authorization

legislation enacting the Federal Arbitration Act allows for

interlocutory appeals from a District Court Decision refusing to Stay

or compel arbitration. The statute does not require that the

interlocutory appeal must, or should, be brought within a certain

amount of time. And, nothing in the Federal Rules or, for that matter,

federal common law, requires that a denial of a Motion to Stay and/or

an to compel arbitration must be filed within thirty (30) days of the

Order or be forever lost.

The District Court also erroneously found that the Petitioner

had waived his right to arbitration. By doing so, the District Court

ignored very strong federal substantive and common law decisions

mandating the enforcement of arbitration agreements.

The Federal Arbitration Act requires that the parties agreement

to arbitrate claims be enforced like any other agreement. Section 2 of

the Federal Arbitration Act provides that:

A written provision in any maritime

transaction or contract evidencing a

transaction involving commerce to settle by

arbitration a controversy thereafter arising

5

out of such contract or transaction, or the

refusal to perform the hold or any part

thereof, or any agreement in writing to

submit to arbitration an existing controversy

arising out of such a contract, transaction or

refusal, shall be valid, irrevocable, and

enforceable, saved upon such grounds as

existed law or inequity for revocation of any

contract.

9 U.S.C. § 2.

The Federal Arbitration Act was designed to “guarantee the

enforcement of private contractual arrangements - the Act simply

creates a body of federal substantive law establishing and regulating

the duty to honor the agreement to arbitrate.” Mitsubishi Motors Corp.

v. Solar Chrysler-Plymouth, Inc., 473 U.S. 614 (1995) quoting Moses H.

Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1,25 n.32

(1993). The FAA was specifically enacted to “reverse the long-

standing judicial hostility to arbitration and to place agreements to

arbitrate ‘upon the same footing as other contracts.” Gilmer v.

Interstate/Johnson Lane Corp., 500 U.S. 20, 24 (1991). Thus, the duty of

the federal courts to enforce arbitration agreements is so fundamental

that the this court has held that the FAA preempt state law that

precludes arbitration. Mastrobuono v. Shearson Lehman Hutton, Inc.,514

US. 52 (1995). This Court has also stated that the public policy of the

Federal Arbitration Act is extremely strong. “Congress déclared a

national policy favoring arbitration and withdrew the power of the

states to require a judicial forum for the resolution of claims which the

contracting parties agreed to resolve through arbitration . .. Congress

has thus mandated the enforcement of arbitration agreements.”

Southland Corp. v. Keating, 465 U.S. 1,10 (1984); Mastrobuono v. Shearson

Lehman Hutton, Inc., Id.

6

In every agreement by and amongst the parties to this Petition,

arbitration was either required to be undertaken or was an implied

term of the contract. Dr. Uwaydah filed his case through previous

counsel in the Northern District of Ohio Western Division on the now

mistaken notion that his civil rights claim, since dismissed, had to be

filed in federal court and was not arbitrable. He always understood,

however, that the contract claims must and should have gone to

arbitration as required by the contracts drafted and revised by Van

Wert County Hospital counsel.

In light of the law and strong policies supporting arbitration,

this Court has routinely enforced arbitration provisions in accordance

with their terms. This Court held in Mitsubishi Motors Corp. that

federal statutory claims can and should be submitted to arbitration

only absent a congressional intent to the contrary. Id. at 628. And, in

Shearson, American Express, Inc. v. McMahon, 482 U.S. 220 (1997) this

Court similarly held that agreements to arbitrate consumer claims

brought under the Securities Act and Racketeer Influenced and

Corrupt Organization Act (“RICO”) should be enforced “ in

accordance with the explicit provisions of the Arbitration Act” despite

the public interest in deterrence served by the availability of civil

actions to enforce those statutes. Id. 482 U.S. at 238; 241-42.

Petitioner, Dr. Uwaydah, strongly believes that his right to

arbitration has been wrongfully taken from him. Van Wert County

Hospital drafted contracts which contained arbitration agreements

and clauses. However, they ignored their own contracts; ignored any

responsibility to determine with the signatory to the contract whether

a related non-signatory would be willing to agree to arbitration; and

then immediately filed a very damaging Complaint in Van Wert

County Common Pleas Court which was the genesis of the eventual

filing by Dr. Uwaydah in federal court. '

A lot of work has been spent in the underlying case on

procedure, not substance. And, since his federal discrimination claim

7

no longer exists, the parties are required to go to arbitrate the

underlying contract claims.

The Sixth Circuit noted that 28 U.S.C. § 2107(a) requires that a

Notice of Appeal be filed within thirty (30) days of the entry of the

Judgment or Order that is being appealed. What the Sixth Circuit does

not state, however, is that 28 U.S.C. § 2107 does not specifically apply

to interlocutory appeals. Nor, does the statutory section state that it

applies to interlocutory appeals specifically allowed under the Federal

Arbitration Act.

Moreover, 28 U.S.C. § 2107 allows under Section (c) “the

District Court may, upon Motion filed not later than thirty (30) days

after the expiration of the time otherwise set for bringing an appeal,

extend the time for appeal upon the showing of excusable neglect or

good cause. In addition, if the District Court finds - -

1. That a party entitled to notice of the entry of a

Judgment or Order did not receive such notice

from the Clerk or any party within twenty-one

(21) days of its entry; and

2. That no party would be prejudiced, the District

Court may, upon Motion filed within one

hundred eight (180) days after entry of the

Judgment or within seven (7) days after receipt of

such Notice, whichever is earlier, reopen the time

for appeal for a period of fourteen (14) days from

the date of entry of the Order reopening the time

for appeal.’

'The 180 days is not over and Dr. Uwaydah believes

filing such a Motion, though filed, is futile based upon the

litigation to date.

8

Here, the District Court was well aware that on May 9, 2002 the

Petitioner, Dr. Uwaydah, had filed a Notice of Appeal with the Sixth

Circuit Court of Appeals. Between that date and May 31, 2002, when

the Sixth Circuit was requested to withdraw the interlocutory appeal

without prejudice, Judge Carr of the Northern District of Ohio had

requested the opportunity to present a written determination on the

matter, rather than having the court reporter’s transcription being the

only evidence of what occurred on the subject.

The Appellant, Dr. Uwaydah, requested the opportunity to

withdraw the interlocutory notice of appeal “without prejudice to any

opportunity Appellant may choose to avail himself of when the

District Court issues a written decision on the Motion by the Plaintiff,

Dr. Uwaydah, for an Order staying resolution and compelling

arbitration under The United States Arbitration Act.” See Appendix

C. The specific import of this language was meant to allow a limited

period within which the District Court could enter the written

decision and then the matter would be re-appealed. No one objected

to this language. For all intents and purpose, there was only a few

days between the time when the second Notice of Appeal was actually

filed and the thirty (30) days that the Circuit Court claims bars this

appeal from going forward.

So, the Petitioner essentially makes both an equitable and legal

argument that the thirty (30) day rule is not absolute under 28 U.S.C.

§2107 and certainly could have been waived under the circumstances,

particularly since the first Notice of Appeal was withdrawn at the

specific request of the District Court. More importantly, the refiling

of the Notice of Appeal certainly should have and could have related

back to the previously filed Notice of Appeal on the same subject

matter and under the same circumstances.

It should be noted to this Court that no Sixth Circuit cases

could be found directly on point holding that interlocutory appeals,

pursuant to a denial of a request to stay proceedings and/or compel

arbitration must be brought to the Court of Appeals within thirty (30)

9

days or forever be barred. And, even if there were such a controlling

decision, a circumstance such as this case, where the initial appeal was

timely filed which the Appellant was prepared to go forward on it, but

withdrew it at the specific behest of a district court so that the Court

could enter a written decision affirming its previously ordered denial,

elevates only form over substance and this appeal should have been

allowed to go forward.

This Court should also note that this matter was not briefed at

the Sixth Circuit Court of Appeals because the matter was handled

procedurally by the panel. The only item that was filed with the Court

was an October 2, 2002 letter through Leonard Green, the Clerk of the

United States Court of Appeals for the Sixth Circuit which is

appended as Appendix D.

This Court has always stated that there is a liberal federal

policy favoring arbitration agreements notwithstanding any state

substantive or procedural policies to the contrary. Moses H. Cohn

Memorial Hospital v. Mercury Constr. Corp., 460 U.S. 1, 24 (1993) And,

this Court has also held that “the FAA establishes that, as a matter of

federal law, any doubts concerning the scope of arbitrable issues

should be resolved in favor of arbitration, whether the problem at

hand is the construction of the contract language itself, or an

allegation of waiver, delay, or like defense to arbitability.” Moses H.

Cohn Memorial Hospital, 460 U.S. at 24-25. This Court has also stated

that lower courts must “rigorously enforce” written arbitration

agreements. Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 221 (1995).

As the Dean Witter Court further stated “the Federal Arbitration Act

leaves no place for the exercise of discretion by a district court, but

instead mandates that a district court shall direct the party to proceed

to arbitration on issues as to which an arbitration agreement has been

signed.” 470 U.S. at 218. Shearson/American Express, Inc. v. McMahon,

482 U.S. 220, 226 (1987) (holding Statutory and non-statutory claims

arbitrable under the FAA).]

10 :

CONCLUSION

For the foregoing reasons, Petitioner respectfully requests that

this Court grant its Petition for a Writ of Certiorari to the United States

Court of Appeals for the Sixth Circuit.

RESPECTFULLY SUB

By: atu Si dite

Michael P. Harvey

Attorney for Petitioner

Michael P. Harvey Co., L.P.A.

311 Northcliff Drive

Rocky River, Ohio 44116-1344

Phone: (440) 356-9108

Fax: (440) 356-9128

E-mail: MPHarveyCo@aol.com

Web: MPHarveylaw.com

APPENDICES

APPENDIX A

FILED

NOV 05 2002

LEONARD GREEN, Clerk

United States Court of Appeals for the Sixth Circuit

No. 02-3990

MUNIR M. UWAYDAH, M.D.

Plaintiff-Appellant,

Ve

VAN WERT COUNTY HOSPITAL; MARK J. MINICK

Defendant-Appellee

Decided: November 5, 2002

Before: MERRITT, NELSON, and GILMAN, Circuit Judges.

The Plaintiff and the defendant, Van Wert County Hospital,

entered a medical services agreement which included an arbitration

provision. The defendant brought an action in state court for

repayment of advanced compensation. That action was dismissed

when the parties agreed to arbitration. Thereafter, the plaintiff

commenced the instant lawsuit. Since the commencement of this suit,

the district court has granted partial summary judgment to the

2

defendant and informally addressed several discovery disputes.

During the course of one discovery dispute, over a year after the suit

had been initiated, the plaintiff sought arbitration of the action. The

district court orally advised the parties that the request for arbitration

would be denied. Thereafter, the court issued a written order setting

a due date for discovery.

The plaintiff filed a notice of appeal from that order, which

was docketed in this court as Case No. 02-3561, and asserted that the

appeal was from the denial of his request for arbitration. He later

moved withdraw that appeal, “without prejudice to any opportunity

the Appellant may choose to avail himself of when the District Court

issues a written decision on the Motion by the Plaintiff .. . for an

Order Staying Resolution and Compelling Arbitration...“ An order

was entered granting voluntary dismissal of that appeal pursuant to

Fed. R. App. P. 42.

Subsequently, the district court entered an order that denied

the plaintiff's motion for arbitration. That order was filed and entered

on the docket on June 24, 2002. On August 19, 2002, 56 days after the

3

entry of the order, the plaintiff filed a notice of appeal. An order was

issued requesting the plaintiff to state why this appeal should not be

dismissed as untimely.

In response, the plaintiff argues 1) he withdrew his first appeal

to allow the district court time to issue 2 written opinion on the

arbitration issue; 2) the provision of the Arbitration Act, 9 U.S.C. § 16,

which authorizes an appeal from the denial of a motion to arbitrate,

does not set a time for appeal; 3) nothing in the federal rules suggests

that an interlocutory appeal must be filed within thirty days of the

order; and 4) there is no Sixth Circuit authority on pont. The plaintiff

suggests that he should be permitted to reopen his previously

dismissed appeal.

Ina civil case, the notice of appeal must be filed within 30 tne

of the entry of the judgment or order that is being appealed. Fed. R. |

App. P.4(a)(1)(A); see also 28 U.S.C. 2107(a). The time limits of this rule

are mandatory and jurisdictional prerequisites which this court cannot

waive or extend. Budinich v. becton Dickinson & Co., 486 U.S. 196, 203

(1988). The rule and statute setting the time limits for a notice of

4

appeal refer broadly to a judgment or order. In turn, a judgment

“includes a decree and any order form which an appeal lies.” Fed. R.

Civ. P.54(b). We find nothing within the statute or rules that would

exclude an appeal under 9 U.S.C. § 16 from the usual parameters for

a civil appeal. Further, the plaintiff's withdrawal of his first appeal

without prejudice did not reserve him the right to bring an untimely

appeal from a later order. ?

Upon consideration, this appeal is DISMISSED sua sponte as

untimely.

/s/ Leonard Green

Clerk

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

WESTERN DIVISION

Munir M. Uwaydah, Case No. 3:00CV7640

Plaintiff,

v. _ ORDER

Van Wert County Hospital, et al.

Defendants.

Pending is a motion by the plaintiff, Munir M. Uwaydah, to

stay or to compel arbitration. This court has jurisdiction pursuant to

28 U.S.C. § 1332. Resolution of this motion is governed by the Federal

Arbitration Act, 9 U.S.C. § 1, et seq. For the following reasons,

plaintiff's motion shall be denied.

Plaintiff's request for sanctions pursuant to Fed. R. Civ. P. 11

shall be denied, without prejudice to renew.

BACKGROUND

This dispute arises from a medical services agreement (the

"Agreement") between plaintiff, a medical doctor, and defendant Van

Weft Hospital (the "Hospital"). The Agreement contains an arbitration

provision:

Any controversy or claim arising out of or relating to

this contract, or the breach thereof, shall be settled by

arbitration in the City of Toledo, Ohio, in accordance

with the commercial arbitration rules of the American

Arbitration Association. Such decision shall be

2

binding upon the parties, and judgement [sic] upon the

award rendered may be entered by any court having

jurisdiction thereof.

(Doc. 70, Ex. A at 9).

In March, 2000, the Hospital fled suit against plaintiff in state

court, alleging breach of the Agreement based on, among other things,

plaintiff's failure to repay $412,244.51 in advanced compensation paid

by the Hospital. The lawsuit was dismissed after it was filed with the

parties agreed to arbitration.

On October 13, 2000,plaintiff filed suit in this court, and on

January 17, 2001, the Hospital filed a counterclaim. Plaintiff made no

mention of any desire or right to arbitrate in his complaint.

On July 31, 2001, plaintiff filed an amended complaint against

the hospital, asserting diversity jurisdiction and alleging state tort

claims.* Once again, plaintiff made no mention of any desire or right

to arbitrate.

Since the filing of this action, recurrent discovery disputes have

arisen between the parties, who, in accordance with our local rules

and practice, called on me to resolve those disputes informally

without the necessity of a formal motion to compel.’ There have been

*Plaintiff based his original complaint on federal

question jurisdiction. By an order of June 6, 2001, this court

granted defendants’ motion for partial summary judgment

and dismissed plaintiff's federal claims. By the same order,

this court refused to exercise jurisdiction over plaintiff's

remaining state law claims and dismissed those claims as well.

Plaintiff filed a motion for relief from this order and an

amended complaint asserting diversity jurisdiction.

*The purpose of requiring counsel to contact the court

to seek information resolution of discovery disputes, which, in

3

at least three such discovery conferences. In addition, I was asked to

review purportedly confidential documents in camera, and have

issued two discovery orders. In additional, I have ruled on a motion

for partial summary judgment.

After eighteen months of litigation before this court, plaintiff,

citing the Agreement’s arbitration clause, asserted - for the first time

- his pending demand for arbitration. The Hospital opposes plaintiff's

demand, arguing that plaintiff long ago waived any right to ask for

arbitration. I find the Hospital’s argument well-taken, and hold that

plaintiff's institution, maintenance, and participation in this case

manifested a clear and unequivocal waiver of any right to arbitrate

that otherwise might have been available under the Agreement.

DISCUSSION

Through the Arbitration Act, Congress has declared a national

policy favoring arbitration and a strong presumption favoring

arbitrability. See Ferro Corp. v. Garrison Indus., Inc., 142 F.3d 926, 932

(6 Cir. 1998); Siam Feather & Forest Prods. Co., Inc. v. Midwest

Feather Co., Inc., 503 F. Supp. 239, 241 (S.D. Ohio 1980), aff'd, 663 F.2d

1073 (1981) (Table). As the Sixth Circuit noted in Liskey v.

Oppenheimer & Co., Inc, 717 F.2d 314, 391 (6" Cir. 1983) (quoting

Cunningham v. Dean Witter Reynolds, Inc., 550 F. Supp. 578, 584 (E.D.

Cal. 1982)), “The policy Congress intended to effectuate [through

arbitration] was to avoid unnecessary expense and delay of litigation

where parties had provided for the more efficient process of

arbitration... .”

all likelihood, is not available in an arbitration proceedings,

results in a very substantial saving of time for the court and

counsel, and of money for the litigants, because in almost no

instance, except where a bona fide claim of privilege is being

asserted, does such informal process fail to resolve the

discovery dispute.

4

Nonetheless, a party may waive its contractual right to

arbitration as it can waive any other contractual provision. See

Germany v. The River Terminal Ry. Co., 477 F.2d 546 (6" Cir. 1973);

American Locomotive Co. v. Gyro Process Co., 185 F.2d 316, 318 (6"

Cir. 1950); Southern Sys., Inc. v. Torrid Oven Ltd, 105 F. Supp. 2d 848,

825 (W.D. Tenn. 2000); The Central Trust Co. v. Anemostat Prods.

Div., 621 F. Supp. 44, 46 (S.D. Ohio 1985); Sam Feather, 503 F. Supp. at

242.

A waiver of the right to arbitrate may be expressed or implied.

An implied waiver occurs “when the party actively participates in

litigation or acts inconsistently with its right to proceed with

arbitration.” Siam Feather, 503 F. Supp. at 242 (citing American

Locomotive Co., 185 F.2d 316). While there is no bright-line rule as to

what constitutes waiver, “[c]onduct such as filing responsive

pleadings while not asserting a right to arbitration, filing a

counterclaim, filing pretrial motions, engaging in extensive discovery,

use of discovery methods unavailable in arbitration, and litigation of

issues on the merit have all been considered by courts to amount to a

waiver of the right to arbitration.” Southern Sys., Inc., 105 F. Supp. 2d

at 854.

Here, the record amply supports the conclusion that plaintiff

impliedly waive d his right to arbitration by instituting and actively

participating in this litigation and thereafter acting inconsistently with

regard to any right to arbitrate he may have had. Without first

seeking to assert a demand for arbitration, though the parties had

agreed to do so shortly after the Hospital’s state court suit had been

dismissed, plaintiff filed the present lawsuit, ‘ amend his complaint,

‘One court has noted:

The filing of a complaint is notice to a

defendant that the plaintiff is refusing to

arbitrate. At that point, or within a reasonable

time thereafter, defendant must decide whether

5

engaged in extensive discovery, used discovery methods unavailable

in arbitration, participated in several discovery conferences with the

court, responded to defendants’ counterclaim and motion for partial

summary judgment, and was provided with the court's rulings on

various matters.

Both the parties and this court have expended much time and

substantial resources on this matter for the past eighteen months. But

for plaintiff's demand for arbitration, he would, after providing some

additional discovery that he has been ordered over his objections to

provide, have had to file a response to defendant's pending motion for

summary judgment. This case, in other words, is on the brink of

resolution either by dispositive motion or trial, which, pursuant to an

order entered on October 11, 2001, had been set for September 3, 2002.°

In Cabintree of Wisconsin, Inc. v. Kraftmaid Cabinetry, Inc., 50

F.3d 388, 390 (7* Cir. 1995), the Seventh Circuit held that the el3ection

to proceed ina nonarbitrable forum acts as a “ presumptive waiver” of

to proceed to trial or invoke Sections 3 or 4 of

the Arbitration Act.

The Central Trust Co. v. Anemostat Prods. Div., 621 F. Supp.

44, 46 (S.D. Ohio 1985).

Plaintiff's actions strongly suggest that he originally chose to

proceed to litigate, rather than arbitrate, and now seeks to

change his mind after an unreasonable amount of time and

rulings adverse to his claims.

‘Earlier trial dates (January 8, 2002 and May 21, 2002,

had been vacated, principally due to delays caused by

discovery disputes). Until plaintiff filed his demand for

arbitration, there was no reason to believe that the case,

assuming defendant's summary judgment motion were to

have been overruled, would not have proceeded to trial. There

can be little doubt, in my view, that judicial disposition of the

parties; dispute would have been accomplished well before the

arbitration process would have been completed.

| ieee ieee

6

the right to arbitrate. In that case, the court held that a party’s decision

to proceed in federal court without also seeking arbitration constituted

an election to proceed in a nonarbitrable forum and, therefore, created

a presumption of waiver. Id.; see also American Locomotive, 185 F.2d

at 320 (stating that the filing of an action in a nonarbitrable forum is

notice that the party is refusing to arbitrate the dispute under an

arbitration provision); Wor il Coati c. v. M

Constr. Co., Inc., 946 F.2d 473, 478 (6" Cir. 1991) (“unless authorized

by contract, submission of arbitrable issues in a judicial proceeding

constitutes a waiver of the right to compel arbitration regardless of the

prejudice to the other party.”) ("analyzing Illinois law).

Here, plaintiff's choice of this forum was not limited to seeking

to enforce the arbitration clause in the Agreement. See American

Locomotive, 185 F.2d at 320 (noting that a party can proceed under 9

U.S.C. § 4 for specific performance of an arbitration provision).

Indeed, there is no indication that defendant would have refused a

timely request to arbitrate. To be sure, it had filed suit in state court,

but it had also acquiesced in an agreement to arbitrate and dismissal

of that action.

In response to the Hospital’s claim of waver of the right to

arbitrate, plaintiff asserts: 1) without a showing that defendant has ~

incurred prejudice from plaintiff's failure to make a timely demand for

arbitration, waiver cannot occur; and 2) pretrial expense and delay,

without more, do not constitute prejudice sufficient to support waiver.

Plaintiff cites several cases from other circuits in ot of this

67 F.3d 20 (2d Cir. 1995) r [PIretrial ex expense and aes canny

inherent in litigation - without more, do not constitute prejudice

sufficient to support a finding of waiver.”); Rush v. Oppenheimer, 779

F.2d 885, 887 (2d. Cir. 1985) (“[W]aiver of the right to compel

arbitration due to participation in litigation may be found only when

prejudice to the other party is demonstrated.”); Painewebber, Inc. v.

Fragalli, 61 F.3d 1063, 1069 (3d Cir. 1995) (“Prejudice is the touchstone

for determining whether the right to arbitration has been waived.”);

7

Britton v. Co-op Banking Group, 916 F.2d 1405, 1412 (9" Cir. 1990);

Fisher v. A.G. Becker Paribas, Inc., 791 F.2d 691, 694 (9" Cir. 1986)

(adopting a three prong test for determining waiver: 1) knowledge of

an existing right to compel arbitration; 2) acts inconsistent with that

right; and 2) prejudice to the opposing party resulting from the

inconsistent acts).

In addressing plaintiff's first contention, that prejudice is

determinative of waiver, it appears that not all of the courts agree with

plaintiff's contention that a party opposing an untimely arbitration

demand must show prejudice of the demand to be overruled. In other

circuits, prejudice is a factor, but is not dispositive. See Cabintree of

Wisconsin, Inc. v. Kraftmaid Cabinetry, Inc,, 50 F.3d 388, 390 (7* Cir.

1995) (“To establish a waiver of the contractual right to arbitrate, a

party need not show that it would be prejudiced if the stay were

granted and arbitration ensued.”); Metz v. Merrill Lynch, Pierce,

Fenner & Smith, Inc., 39 F.3d 1482, 1489 (10" Cir. 1994) (listing

prejudice as one of six factors to examine in determining whether a

party has waiver); Nati: F Cancer R v. AG.

Edwards & Sons, Inc., 821 F.2d 772, 777 (D.C. Cir. 1987) (“This circuit

has never included prejudice as a separate and independent element

of the showing necessary to demonstrate waiver of the right to

arbitration.” ).

The Sixth Circuit does not appear to have resolved the issue of

the extent to which prejudice to the opponent of arbitration must be

shown. In American Locomotive, the court, making no mention of

prejudice, noted that at the time of the filing of the complaint, or a

reasonable time thereafter, the party seeking arbitration could have

and should have made the decision to insist on arbitration or prepare

for trail. 185 F.2d at 320. In Germany v. River Terminal Ry. Co., the

court, likewise making no mention of prejudice, stated “[a]n

agreement to arbitrate may be waived by the actions of a party which

are completely inconsistent with any reliance thereon.” 477 F,2d 546,

547 (6" Cir. 1973). In an unreported decision, the court noted that

“[p]rejudice to the opposing party is a significant fact” in determining

; 8

waiver. Mantaline Corp. v. PPG Indus., Inc., No. 97-4473, 2000 U.S.

App. LEXIS 14036, at * 13 (June 8, 2000). Although the court has also

stated “a party may waive the right [to arbitration] by delaying its

assertion to such an extent that the opposing party incurs actual -

prejudice,” Gener. O. V. ini ia Asi ilo

~ De Stat, 289 F.3d 434 (6™ Cir. 2002), the court’s decisions, on balance

can most fairly be read as recognizing prejudice as a factor, but not

solely dispositive. See Southern Systems, 105 F. Supp. 2d at 853 (citing

American Locomotive, 185 F.2d at 318).

Other district courts in this circuit have likewise treated

prejudice as a favor in determining waiver, but not as the exclusive

factor. Id.; see also J. Wise Smith & Assoc., Inc. v. Nationwide Mut.

Ins. Co., 925 F. Supp. 528,531 (W.D. Tenn. 1995); In re H & M Charters,

Inc. & Reed, 757 F. Supp. 859, 865 (S.D. Ohio 1991); Siam Feather, 503

F. Supp. at 243. Thus, I will treat the issue of prejudice as a factor, but

not as an exclusive factor in determining waiver.

Plaintiff, citing Leadertex 67 F.3d at 26, argues that pretrial

expenses and delay, without more, are insufficient to establish

prejudice. The facts in this case, however are readily distinguishable

from the facts present in this case. In Leadertex, the defendant sought

arbitration after only eight months of litigation, not the eighteen

months present in this case. Additionally, the party opposing

arbitration had not engaged in extensive discovery, as that party had

evaded discovery by producing a few documents, giving

unresponsive answers to interrogatories, and failing to produce

witnesses for scheduled depositions. Here, the parties have engaged

in extensive discovery and protracted discovery.

The circumstances of this case likewise differ from the other

cases on which plaintiff relies for his contention that a showing of

prejudice requires more than a showing that time and money have

been spent in litigation before the demand for arbitration was made.

In Rush, 779 F.2d 885, arbitration was demanded after suit had been

pending for only eight months - not after eighteen months, as here.

9

Both Rush and Fisher, 791 F.2d 691, involved federal securities actions,

which raised nonarbitrable claims. Discovery in those cases related to

the nonarbitrable claims. Here, there are no nonarbitrable clams

between the parties. Finally, in both Painewebber, , 61 F.3d 1063, and

Britton, 916 F.2d 1405, the parties had engaged in no discovery before

arbitration was sought.

-This case is , however, analogous to Southern Systems, 105 F.

Supp. 2d 848. In Southern Systems, the court found a waiver of the

right where the party seeking arbitration had: filed its motion to stay

only a month before the discovery deadline and after extensive

discovery had taken place; irivoiced the court’s assistance in

compel’ing discovery; obtained discovery not available in arbitration;®

and filed a motion to dismiss and counterclaim — all before raising

the issues of arbitration. In determining waiver, with [defendart]

having the benefit of eighteen months of pretrial proceedings in this

court, would clearly result in substantial prejudice to plaintiff.” Id. at

856.

As in Southern Systems, a period of eighteen months passed

before plaintiff invoked any arbitration rights. During that period, the

Hospital has had to respond to plaintiff's complaint and motions, and

has become involved in extensive, protracted, and expensive

discovery proceedings. Plaintiff has invoked this court's assistance in

discovery matters, including a motion to compel, discovery

conferences and in camera review of Hospital documents. Moreover,

plaintiff filed his motion after this court issued an order compelling

discovery from plaintiff and shortly before summary judgment

proceedings.

‘The court noted that the Federal Rules of Civil

Procedure are more liberal with regard to discovery than those

of the American Arbitration Association. Southern Systems,

105 F. Supp. 2d at 856 n.7.

10 ‘

Forcing arbitration at this point would only result in further

delay, greatly increased expense, and substantial prejudice on the part

of the Hospital. See Central Trust Co., 621 F. Supp. at 46 (“To dismiss

the action or force the parties into arbitration now would further delay

a case that has already been pending almost 19 months.”) Thus, aside

from the other prejudice incurred thus far, the Hospital would incur

even greater prejudice from the additional expense and delay that

proceeding to arbitration would entail.

Through his demand for arbitration, plaintiff claims to be

seeking prompt resolution of his dispute with the Hospital. There is

no permit to his shallow and insincere protestations: his motion is the

quintessential delaying tactic and effort at forum-shopping.

Plaintiff, having at the eleventh hour retained his fifth

attorney,’ is stalling. He fears and wants to avoid, rather than seeks

and desires, prompt adjudication. Because he is entitled to an

interlocutory appeal from a decision denying a demand for

arbitration, 9 U.S.C. § 16(a)(1)(A), no matter how untimely or

manipulative such appeal may be, plaintiff seeks to gain that which he

claims not to want - postponement of an adjudication of his claims on

their merits. |

There is no other reasonable interpretation, in light of the

protracted procedural history of this case, of plaintiff's untimely

demand for arbitration than to view it as a deliberate tactic employed

to foreclose, for two years or more (given the workload and

manpower (and womanpower) shortage of our Circuit court), a final

decision in this case.

’Plaintiff has used five different attorneys to represent

him in his dispute with the Hospital. His first attorney was

Charles Kennedy of Van Wert, William Case took over the Van

Wert County Case. Charles, Murray, Timothy Sprague, and

Michael Harvey have all represented plaintiff in this court.

11

To require the Hospital to submit to arbitration at this point

would be to make a mockery of the purposes - prompt resolution of

disputes without the inconvenience, expense, delay, and uncertainty

0 litigation — arbitration. Granting plaintiff's motion would nothing

useful, while causing greater inconvenience, more expense, further

delay and continued uncertainty. It would, moreover, cause the

extensive work of this court on this case to have been largely, if not

entirely wasted.®

If plaintiff's demand for arbitration were to be upheld, there

would be nothing to keep any litigant with an arbitration clause from

testing the judicial waters, and to do so for as long as he liked, even to

the point where the case has arrived on the brink of resolution, and

then nullifying all that has gone before by demanding arbitration. If

that is what a deliberately delayed demand for arbitration can do, then

all that is bad about litigation — including most particularly

unnecessary delay, wasteful expense, and the manipulative impulse

to forum-shop - would be fostered, rather than deterred.

I am firmly persuaded that neither the Arbitration Act nor

sound common sense would or does countenance such an absurd

distortion of the arbitration process. Plaintiff's untimely motion to

stay and compel arbitration shall be denied.

Defendant understandably demands that sanctions be imposed

under Fed. R. Civ. P. 11. That motion will be denied, without

prejudice to renew following the Sixth Circuit’s decision on appeal.

*The time taken on this case would have needlessly

been taken from the other cases on my docket. Not only

would plaintiff's demand, if granted, have the effect of causing

delay in the resolution of this case, it would have also caused

delay in the adjudication of the cases of other litigations, who

want and deserve prompt resolution of their lawsuits.

12

Whether or not that court imposes sanctions under Fed. R. App. P. 38,”

I will entertain plaintiff’s renewed motion when this case is, as seems

likely, remanded for further proceedings before this court.

Plaintiff can avoid the risk of sanctions under Fed. R. Civ. P. 11

and Fed. R. App. P. 38 if he accepts this denial of his untimely and

unjustified demand for arbitration by declining to seek interlocutory

review of this order, and, instead, complies with the discovery that,

pursuant to prior order, he owes, and thereafter files his opposition to

defendant's pending motion for summary judgement. This will bring

him, either by ruling on that motion, or trial in early September, a far

speedier resolution of this protracted dispute than either an appeal

from this order or recourse to arbitration.

That is his decision to make. For now, mine simply is to deny

plaintiff's unfounded demand for arbitration on the basis that his

actions for the past eighteen months have been completely

inconsistent with any right to arbitration that he might otherwise have

enjoyed.

CONCLUSION

It is, therefore,

ORDERED THAT

Plaintiff's Motion for stay or to compel arbitration be, and

hereby is, denied.

*Fed R. App. P. 38 states:

If acourt determines that an appeal is frivolous,

it may, after a separately filed motion or notice

form the court and reasonable opportunity to

respond, award just damages and single or

double costs to the appellee.

13

So ordered.

/s/ James G. Carr

APPENDIX C

CASE NO. 02-3561

IN THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

MUNIR UWAYDAH, M.D.

Plaintiff-Appellant,

Vv.

VAN WERT COUNTY HOSPITAL, et al.

Defendants-Appellees.

On Appeal from the United States District Court

for the Northern District of Ohio

Western Division

REQUEST TO WITHDRAW INTERLOCUTORY APPEAL

WITHOUT PREJUDICE

MICHAEL P. HARVEY, ESQ.

MICHAEL P. HARVEY Co., L.P.A.

311 NORTHCLIFF DRIVE

ROCKY RIVER, OHIO 44116-1344

OFFICE: (440) 356-9108

FAX: (440) 356-9128

E-mail: MPHarveyCo@aol

Attorney for Plaintiff-Appellant —

Munir Uwaydah, M.D.

The Appellant, Munir Uwaydah, M.D., respectfully requests

the opportunity to withdraw the Interlocutory Notice of Appeal filed

on May 9, 2002 without prejudice to any opportunities the Appellant

may choose to avail himself if and when the district court issues a

written decision on the underlying request by the Plaintiff in the

underlying case, Dr. Uwaydah, for an Order staying and compelling

arbitration.

Respectfully submitted,

Michael P. Harvey, Esq. -

MICHAEL P. HARVEY Co. L.P.A.

CERTIFICATE OF VI

The undersigned hereby certifies that one copy of the

foregoing Appellant’s Request to Withdraw Interlocutory Appeal was

served, via ordinary U.S. mail, upon the following counsel of record:

C. Philip Baither, III, Esq.

Robinson, Curphey & O’Connell

9" Floor

Four SeaGate

Toledo, Ohio 43604

James L. Rogers, Esq.

Eastman & Smith

P.O. Box 10032

Toledo, Ohio 43699-0322

Ted Kurt, Esq.

Robinson, Curphey & O’Connell

Ninth Floor

Four SeaGate

Toledo, Ohio 43604

Gerald R. Kowalski, Esq.

Cooper & Walinski

900 Adams Street

Toledo, Ohio 43624

Gary O. Sommer, Esq.

Watkins, Bates & Carey

National City Bank Building

405 Madison Avenue

Toledo, Ohio 43604-1207

Patrick G. Warner, Esq.

Murray & Murray

111 E. Shoreline Drive

P.O. Box 19

Sandusky, Ohio 44871-0019

and

Timothy L. Sprague, Esq.

2697 Derbyshire Road

Cleveland Heights, Ohio 44106

via regular U.S. mail, postage prepaid, this___ day of May, 2002.

Michael P. Harvey, Esq.

MICHAEL P. HARVEY Co. L.P.A.

iV

APPENDIX D

Law Offices

MICHAEL P. HARVEY Co., L.P.A.

Facsimile: (440) 356-9128 311 Northcliff Drive Internet:

MPHarveylaw.com

Cellular: (440) 570-2812 Rocky River, Ohio 44116-1344 E-mail:

MPHarveyCo@aol.com

(440) 356-9108

October 2, 2002

Leonard Green, Clerk

United States Court of Appeals -

for the Sixth Circuit

532 Potter Stewart U.S. Courthouse

100 E. Fifth Street

Cincinnati, Ohio 45202-3988

Re: Munir Uwaydah, M.D. v.

Van Wert County Hospital, et al.

Sixth Circuit Court of Appeals Case No. 02-3990

Dear Mr. Green:

On or about September 17, 2002 you sent me an Order

pursuant to Appellate Rule 45 requesting in writing within

twenty-one (21) days the reasons why the appeal should not be

dismissed for lack of a timely notice of appeal.

First, Appellant withdrew the initial notice of appeal in

Case No. 02-3561 at the specific request of District Court Judge

Carr who requested an opportunity to write a formal written

opinion on the subject matter of the initial interlocutory appeal

rather than relying solely upon the April 29, 2002 transcript

—

TR rate

decision of a pretrial on the same subject. The Appellant

agreed to this oral request, knowing full well that the Court

intended to confirm the earlier decision which, in fact, the

Court did. Therefore, Appeal Number 02-3990 is the District

Court's written affirmation of the April 29, 2002 decision

which relates back to the initial filed appeal which, of course,

was timely filed and not dismissed with prejudice.

Second, the authorizing legislation of the Uniform

Federal Arbitration Act allows for interlocutory appeals from

a District Court decision on the subject matter. It does not

state that such an appeal must, or should be, brought within a

certain period of time.

Third, neither Federal Appellate Rule 4 nor anything

else in that Rule states that a notice of interlocutory appeal

must be filed within thirty (30) days of an entry of a Judgment

or Order.

Fourth, there are no Sixth Circuit cases directly on

point holding that interlocutory appeals, pursuant to a denial

of a request to stay proceedings and/or compel arbitration,

must be brought within thirty (30) days. And, even if there

were such a decision; a circumstance such as this where the

initial appeal was timely filed and the Appellant was prepared

to go forward on it, but withdrew it at the request of the

District Judge so that the Court could enter a written decision

affirming the previously filed denial, elevates form over

substance.

The Appellant is fully prepared to brief this subject as

part of the Appellate process. However, the main point of this

letter, in response to the Court's request, is that the Appellant

had every intention of dismissing the initial appeal without

prejudice for the sole reason of allowing the Court to enter its

subsequent written Order on the same subject reaching the

same decision, except with written analysis. Quite possibly,

what the Appellant would suggest is that we discuss refiling

Appeal No. 02-3561, since that would certainly obviate this

procedural difficulty.

li

In any event, the Appellant renews his request here, as

he has done in the Notice of Appeal and related materials, that

the Sixth Circuit take jurisdiction over this question of whether

the Appellant’s right to arbitrate contained in the written

agreements between the parties should have been honored by

the District Court and, for that matter, the Appellee, Van Wert

County Hospital right along, and whether that right to

arbitrate was waived under the particular circumstances of the

case that this counsel finds as he has taken this case over from

Attorney Timothy Sprague.

Sincerely,

MICHAEL P. HARVEY CO., L.P.A.

By

Michael P. Harvey, Esq.

MPH/ tab

cc: C. Philip Baither, III, Esq. (via regular U.S. mail)

James L. Rogers, Esq. (via regular U.S. mail)

Ted Kurt, Esq. (via regular U.S. mail)

Gerald Kowalski, Esq. (via regular U.S. mail)

Gary O. Sommer, Esq. (via regular U.S. mail)

Joe Saponaro (via e-mail only)

C:\MPH\2002\Uwaydah\WritofCertiorari.12116-02.wpd