Arbitrators, counsel, and the parties must comply with any Standing and Procedural
Orders of the Court related to arbitration procedures, in addition to the provisions of this
Rule.
1. Certification of Arbitrators.
A. The Chief Judge shall certify as many arbitrators as he or she
determines to be necessary under this rule.
B. Any individual may be certified to serve as an arbitrator if: (1) he or
she has been for at least five years a member of the bar of the highest
court of a state or the District of Columbia, (2) he or she is admitted to
practice before this court, and (3) he or she is determined by the Chief
Judge to be competent to perform the duties of an arbitrator.
C. Any member of the bar possessing the qualifications set forth in
subsection 1.B, desiring to become an arbitrator, shall complete the
application form obtainable in the office of the Clerk and when
completed shall file it with the Clerk who shall forward it to the Chief
Judge for a determination as to whether the applicant should be
certified.
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D. Each individual certified as an arbitrator shall take the oath or
affirmation prescribed by Title 28 U.S.C. § 453 before serving as an
arbitrator.
E. A list of all persons certified as arbitrators shall be maintained in the
office of the Clerk.
F. Any member of the Bar certified as an arbitrator may be removed
from the list of certified arbitrators for cause by a majority of the
judges of this court.
2. Compensation and Expenses of Arbitrators.
The arbitrators appointed to a panel shall each be compensated $175.00 for
services in each case assigned for arbitration (and $225 if the arbitration lasts
beyond lunch). Whenever the parties agree to have the arbitration conducted
before a single arbitrator, the single arbitrator shall be compensated $250 for
services in each case assigned for arbitration. The fees shall be paid by or
pursuant to the order of the director of the Administrative Office of the United
States Courts.
No compensation is permitted for preparation time on the case or for hearings
that are cancelled. In the event that the arbitration hearing is protracted, or
for cases involving extensive preparation time, the court will entertain a
petition for additional compensation. Arbitrators shall not be reimbursed for
actual expenses incurred by them in the performance of their duties under
this rule.
3. Cases Eligible for Compulsory Arbitration.
A. The Clerk of Court shall, as to all cases wherein only money damages
are being sought, and such damages do not exceed $150,000.00,
exclusive of interest and costs, designate and process such cases for
compulsory arbitration, including adversary proceedings in
bankruptcy, but excluding (1) social security cases, (2) cases in which
a prisoner is a party, (3) cases alleging a violation of a right secured by
the U.S. Constitution, and (4) actions in which jurisdiction is based in
whole or in part on 28 U.S.C. § 1343. In cases where an award of
counsel fees is permissible, any motion for counsel fees shall be
referred to the assigned judge for resolution.
B. The parties may agree by written stipulation that the Clerk shall
designate and process for arbitration any civil case eligible for
arbitration pursuant to Section 3.A of this rule (including adversary
proceedings in bankruptcy) wherein money damages only are being
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sought in an amount in excess of $150,000.00, exclusive of interest and
costs.
C. For purposes of this rule only, damages shall be presumed to be not in
excess of $150,000.00, exclusive of interest and costs, unless:
(1) Counsel for plaintiff, at the time of filing the complaint, or in
the event of the removal of a case from state court or transfer
of a case from another district to this court, within fourteen (14)
days of the docketing of the case in this district filed a
certification that the damages sought exceed $150,000.00,
exclusive of interest and costs; or
(2) Counsel for a defendant, at the time of filing a counterclaim or
cross-claim, filed a certification with the court that the damages
sought by the counterclaim or cross-claim exceed $150,000.00,
exclusive of interest and costs.
(3) The judge to whom the case has been assigned may, sua sponte
or upon motion filed by a party prior to the appointment of
the arbitrators to hear the case pursuant to section 4.C, order
the case exempted from arbitration upon a finding that the
objectives of an arbitration trial (i.e., providing litigants with a
speedier and less expensive alternative to the traditional
courtroom trial) would not be realized because (a) the case
involves complex legal issues, (b) legal issues predominate
over factual issues, or (c) for other good cause.
D. Counsel’s designation is entitled to substantial deference. In rare cases
where quantifiable special damages are absent or minimal, the judge
may issue a rule to show cause why the case is not eligible for
arbitration. Counsel’s designation may be disregarded if counsel’s
assessment of the potential value of the case is objectively
unreasonable.
4. Scheduling Arbitration Trial.
A. After an answer is filed in a case determined to be eligible for
arbitration, and after the parties have filed the consent/declination of
consent to proceed by videoconference, the arbitration clerk shall
send a notice to counsel setting forth the date, time, format, and
location (if applicable) for the arbitration trial. The date of the
arbitration trial set forth in the notice shall be a date approximately
one hundred twenty (120) days from the date the answer was filed.
The notice shall also advise counsel that they may agree to an earlier
date for the arbitration trial provided the arbitration clerk is notified
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within thirty (30) days of the date of the notice. The notice shall also
advise counsel that they have ninety (90) days from the date the
answer was filed to complete discovery unless the judge to whom the
case has been assigned orders a shorter or longer period for discovery.
In the event a third party has been brought into the action, this notice
shall not be sent until an answer has been filed by the third party.
B. The arbitration trial shall be held before a panel of three arbitrators,
one of whom shall be designated as chairperson of the panel, unless
the parties agree to have the hearing before a single arbitrator. The
arbitration panel shall be chosen through a random selection process
by the clerk of the court from among the lawyers who have been
certified as arbitrators. The arbitration clerk shall endeavor to assure
insofar as reasonably practicable that each panel of three arbitrators
shall consist of one arbitrator whose practice is primarily representing
plaintiffs, one whose practice is primarily representing defendants,
and a third panel member whose practice does not fit either
category. The arbitration panel shall be scheduled to hear not more
than four (4) cases on a date or dates several months in advance.
C. The judge to whom the case has been assigned shall at least thirty
(30) days prior to the date scheduled for the arbitration trial sign an
order setting forth the date and time of the arbitration trial and the
names of the arbitrators designated to hear the case. In the event that
a party has filed a motion to dismiss the complaint, a motion for
summary judgment, a motion for judgment on the pleadings, or a
motion to join necessary parties, the judge shall not sign the order
until the court has ruled on the motion, but the filing of such a motion
on or after the date of said order shall not stay the arbitration unless
the judge so orders.
D. Upon entry of the order designating the arbitrators, the parties must
send the arbitration clerk an email with a copy of the docket sheet and
all relevant pleadings, in the form in which they appear on CM/ECF, as
attachments. The email should be sent to the email address designated
on the Court website and in accordance with all procedural orders then
in effect. The arbitration clerk will then forward the documents to the
arbitrators by email, along with a copy of the court’s order and any
relevant procedural orders.
E. Persons selected to be arbitrators shall be disqualified for bias or
prejudice as provided in 28 U.S.C. § 144, and shall disqualify
themselves in any action in which they would be required under 28
U.S.C. § 455 to disqualify themselves if they were a justice, judge or
magistrate judge.
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F. The arbitrators designated to hear the case shall not discuss settlement
with the parties or their counsel, or participate in any settlement
discussions concerning the case assigned to them.
5. The Arbitration Trial.
A. The trial before the arbitrators shall take place on the date and at the
time set forth in the order of the Court. The trial shall take place in the
United States Courthouse in a room assigned by the arbitration clerk,
unless all parties have consented to proceed by videoconference. The
arbitrators are authorized to change the date and time of the trial
provided the trial is commenced within thirty (30) days of the trial
date set forth in the Court's order. Any continuance beyond this thirty
(30) day period must be approved by the judge to whom the case has
been assigned. The arbitrators must immediately notify the arbitration
clerk of any changes in date or time.
B. Counsel for the parties shall promptly report settlement of the case to
the arbitration clerk and all members of the arbitration panel assigned
to the case.
C. The trial before the arbitrators may proceed in the absence of any
party who, after notice, fails to be present. In the event, however, that
a party fails to participate in the trial in a meaningful manner, the
Court may impose appropriate sanctions, including, but not limited to
the striking of any demand for a trial de novo filed by that party.
D. Federal Rule of Civil Procedure 4 5 shall apply to subpoenas for
attendance of witnesses and the production of documentary evidence
at the trial before the arbitrators. Testimony at the trial shall be under
oath or affirmation.
E. The Federal Rules of Evidence shall be used as guides to the
admissibility of evidence. Copies or photographs of all exhibits, except
exhibits intended solely for impeachment, must be marked for
identification and delivered to adverse parties at least fourteen (14)
days prior to the trial and the arbitrators shall receive such exhibits
into evidence without formal proof unless counsel has been notified at
least seven (7) days prior to the trial that the adverse party intends to
raise an issue concerning the authenticity of the exhibit. The
arbitrators may refuse to receive into evidence any exhibit, a copy or
photograph of which has not been delivered prior to trial to the
adverse party, as provided herein.
F. A party may have a recording and transcript made of the arbitration
hearing at the party's expense.
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6. Arbitration Award and Judgment.
The arbitration award shall be promptly emailed to the arbitration clerk
for docketing after the trial is concluded, and shall be entered as the
judgment of the court after the thirty (30) day time period for requesting a
trial de novo has expired, unless a party has demanded a trial de novo, as
hereinafter provided. The judgment so entered shall be subject to the same
provisions of law, and shall have the same force and effect as a judgment of
the court in a civil action, except that it shall not be the subject of appeal. In
a case involving multiple claims and parties, any segregable part of an
arbitration award concerning which a trial de novo has not been demanded
by the aggrieved party before the expiration of the thirty (30) day time period
provided for filing a demand for trial de novo shall become part of the final
judgment with the same force and effect as a judgment of the court in a
civil action, except that it shall not be the subject of appeal.
7. Trial De Novo.
A. Within thirty (30) days after the arbitration award is entered on the
docket, any party may demand a trial de novo in the district court.
Written notification of such a demand shall be served by the moving
party upon all counsel of record or other parties. Withdrawal of a
demand for a trial de novo shall not reinstate the arbitrators' award
and the case shall proceed as if it had not been arbitrated.
B. Upon demand for a trial de novo, the action shall be placed on the trial
calendar of the Court and treated for all purposes as if it had not been
referred to arbitration. Any right of trial by jury which a party would
otherwise have shall be preserved inviolate.
C. At the trial de novo, the court shall not admit evidence that there had
been an arbitration trial, the nature or amount of the award, or any
other matter concerning the conduct of the arbitration proceeding
unless the evidence would otherwise be admissible in the Court under
the Federal Rules of Evidence.
D. To make certain that the arbitrators' award is not considered by the
Court or jury either before, during or after the trial de novo, the
arbitration clerk shall, upon the filing of the arbitration award, enter
onto the docket only the date and "arbitration award filed" and
nothing more, and shall retain the arbitrators' award in a separate file
in the Clerk's office. In the event no demand for trial de novo is filed
within the designated time period, the arbitration clerk shall enter the
award on the docket.
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