Chapter 13 - § 13.3 • PRE-HEARING MOTIONS

• Jurisdiction: Colorado

§ 13.3 • PRE-HEARING MOTIONS

§ 13.3.1—Pre-Hearing Dispositive Motions (Including For Summary Judgment)

There is nothing in the FAA that defines whether pre-hearing motions to dismiss or for summary judgment can be filed; however, the CRUAA, C.R.S. § 13-22-215(2) (2016), expressly provides for summary disposition:

(2) An arbitrator may decide a request for summary disposition of a claim or particular issue:
(a) If all interested parties agree; or
(b) Upon request of one or more parties to the arbitration proceeding if that party gives notice to all other parties to the proceeding and the other parties have a reasonable opportunity to respond.

Practitioners treat the principal of subsection 2(b) as also applicable when the FAA is applicable. It is a procedural rule.

Of course, the agreement of the parties can provide for an arbitrator to consider summary disposition, and, if so, it governs. Absent agreement, the arbitrator's inherent powers probably permit him or her to accept or reject pre-hearing motions. There is no "right to a hearing" in arbitration, and an arbitrator can determine a case upon a dispositive motion,¹⁴ unless the parties otherwise agree.

Rule R-34 of the AAA Construction Industry Arbitration Rules provides:

Upon prior written application, the arbitrator may permit motions that dispose of all or part of a claim, or narrow the issues in a case.

§ 13.3.2—Joinder Of Parties To The Arbitration

Arbitration exists only as a matter of contract: the express agreement of the parties. Consequently, a non-party to an agreement containing an arbitration clause normally may not be compelled to participate in an arbitration proceeding between the parties to the arbitration agreement.¹⁵ Conversely, arbitration may not be denied as to the two parties to an arbitration provision simply because one or more other parties with responsibility for the subject matter of the dispute cannot be ordered to participate in the arbitration.¹⁶ Compare, however, the Colorado intertwining claims doctrine.

Joinder of other parties as here used is analogous to joinder of additional parties to civil litigation, pursuant to C.R.C.P. 19. However, Rule 19 does not require the consent of the party to be joined or the consent of all existing parties to the litigation, whereas arbitration is a consensual arrangement requiring the agreement of all.

Neither of the arbitration acts (CRUAA and FAA) has provisions relating to joinder of additional parties to arbitration. Joinder is thus left to those circumstances where an additional party may agree to join an arbitration proceeding. Examples include:

• Subcontractor and contractor are in arbitration; owner agrees to join the arbitration so that subcontractor and contractor claims against owner can be tried in a single proceeding.
• "A" claims against "B" in arbitration. "B" claims contribution from "C," who agrees to join the arbitration.
• "X" claims against "Y" in arbitration. "X" and "Y" agree that "Z" is also a cause of the damages "X" seeks to recover from "Y." "Z" agrees to join the arbitration.
• Contractor asserts claims in arbitration against owner. Subcontractors agree to join the arbitration and assert their claims against contractor and owner.

Of course, if all parties agree, additional parties can be joined if they consent.

§ 13.3.3—Consolidation Of Arbitrations

A common situation is as follows: the owner asserts claims against the architect and against the contractor for defective design and construction. The owner has separate contracts with each, and each contains an arbitration clause. Absent contractual provisions governing the answer, may the owner join both parties in a single arbitration, or must separate arbitrations be pursued?

FAA

The FAA does not address issues pertaining to the consolidation of separate arbitration proceedings. However, the issue has been addressed by federal common law.

This topic is extensively covered in Annot., Consolidation by Federal Court of...