http://www.ca5.uscourts.gov/opinions/pub/08/08-20140-CV0.wpd.pdf
Before HIGGINBOTHAM, ELROD, and HAYNES, Circuit Judges.
AFFIRMED. (April 15, 2009)
Nicholas has language indicating that if a plaintiff files suit, a waiver of arbitration by plaintiff might occur, since it shows a "disinclination" by the plaintiff to arbitrate. However, the 5th Circuit will still require a showing of prejudice and will apply the same legal standard for either a plaintiff or defendant.
The Texas rule is similar, though apparently if the plaintiff files, that is not even an issue in itself. In re Williams, 2003 WL 23096072 (Tex.App. — Amarillo 2003, no pet.).
However, if plaintiff waits until eve of trial, forces arbitration, and wins big in arbitration, a waiver will be found. Perry Homes v. Cull, 258 S.W.3d 589 (Tex. 2008). Perry is the only case from the Supreme Court in recent years finding waiver of right to arbitrate.
Branch asserts he was prejudiced because (a) he spent substantial time, money, and effort on discovery and on responding to defendants' motion to dismiss; (b) defendants obtained the benefit of an onsite inspection and testing of Branch's property through the discovery process; and (c) moving the litigation to arbitration will mean Branch's efforts in court were wasted. We disagree that Branch has demonstrated prejudice. First, a party's efforts in requesting and obtaining discovery are not prejudicial. See Perry Homes, 258 S.W.3d at 600 (“[A] party who requests lots of discovery is not prejudiced by getting it and taking it to arbitration in the same way that a party who produces lots of discovery outside the stricter discovery limits in arbitration.”). As for the effort of responding to the motion to dismiss, Branch made no showing that he would not be subject to that motion if the case had gone immediately to arbitration. Likewise, Branch made no showing that he opposed defendants' inspecting the home and testing the property, and he has not shown defendants would not have been entitled to inspect the home or test the property in an arbitration proceeding. Nor has Branch shown that his efforts in court would be wasted if the litigation is moved to arbitration. We conclude Branch made no showing of prejudice.
The supreme court has found waiver of arbitration in only one case, Perry Homes v. Cull. In that case, the plaintiffs initially “vigorously opposed” the defendants' motion for arbitration, the parties conducted nearly complete discovery, and the case was set for trial. Perry Homes, 258 S.W.3d at 585. Then, after fourteen months of litigation, the plaintiffs changed their minds and moved for arbitration. The trial court granted the motion four days before the date the case was set for trial. Id. The supreme court held the arbitration was waived, set aside the arbitration award, and remanded the case “for a prompt trial.” Id. at 601. In this case, defendants never opposed arbitration, and they moved for arbitration seventy-three days after they answered. They conducted no formal discovery of their own. The record does not show the case was set for trial.
In re Hawthorne Townhomes, L.P., --- S.W.3d ----, 2009 WL 485567, *7 (Tex.App. --- Dallas 2009, no pet. hist. to date).