Initiating Judicial Procedures Causes Waiver of Arbitration Right

In Price v. Drexel Burnham Lambert, Inc., 791 F.2d 1156 (5th Cir. 1986), the federal district court had found that the party seeking arbitration had initiated extensive discovery and filed motions to dismiss and for summary judgment, all without demanding arbitration. Id. at 1159. In Zwitserse Maatschappij Van Levensverzekering En Lijfrente; N.V. Pensioen ESC v. ABN International Capital Markets, 996 F.2d 1478 (2nd Cir. 1993), Zwisterleven, the party seeking arbitration, initiated a discovery-like witness hearing in the Netherlands involving the testimony of six witnesses prior to arbitration. the court held that, because Zwitserleven had taken advantage of judicial procedures not available in arbitration, it had waived its right to arbitration. In St. Mary's Medical Center of Evansville, Inc. v. Disco Aluminum Products Co., Inc., 969 F.2d 585 (7th Cir. 1992), the party seeking arbitration filed a motion for summary judgment and participated in a status conference where discovery deadlines were set before requesting arbitration. More than a year and-a-half elapsed between the filing of the plaintiff's petition and the defendants' first request for arbitration.