In Holsapple v. BNSF, CCL filed a supplemental brief asserting that BNSF Railway waived any right it had to mandatory arbitration of cases brought as a result of a train derailment near Mendon, Missouri.
In a post on the CCL blog on November 3, CCL provided background on the case and the court's request for supplemental briefing on whether arbitration was waived. In the brief filed today, CCL argued that a party seeking arbitration must tell the court at the earliest feasible moment, under relevant precedent, and cannot otherwise participate in the case without waiving arbitration. In this case, BNSF opposed adding Amtrak as a third-party defendant, supported a stay pending an investigation by the National Transportation Safety Board, and filed for a change of venue to another court. Those actions forfeited any arbitration rights BNSF might have had because it expended time and resources in the trial court without alerting the court to the arbitration issue. It is therefore inconsistent with any claimed right to arbitration.
The court is expected to rule on BNSF's motion to stay proceedings pending arbitration shortly.
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