United States District Court, D. South Dakota, Southern Division
Lawrence L. Piersol United States District Judge
November 2016, Plaintiff filed a two-count Complaint against
Defendants in Minnehaha County state court, seeking payment
for legal fees Plaintiff alleges it is owed. Doc. 1-1. On
December 30, 2016, Defendants filed a timely notice of
removal pursuant to 28U.S.C. § 1441 and 28 U.S.C. §
1332. On January 6, 2017, Defendants filed a Motion to Stay
and Compel Arbitration for claims asserted in Count II. Doc.
7. On May 1, 2017, the Court issued a Memorandum Opinion and
Order granting the stay and compelling arbitration of Count
II. Doc. 14.
the Court stayed the lawsuit and compelled arbitration of
Count II in its May 1, 2017, order, there were no
counterclaims pending. The Court retained jurisdiction over
the case. On August 23, 2017, Defendants presented Plaintiff
with their Answer, Affirmative Defenses, and Counterclaims
during the arbitration proceedings. Doc. 26 at 6.
August 23, 2017, Plaintiff filed a Motion for Relief from
Stay and Motion for Order to Declare the Scope of the
Arbitration Proceedings. Doc. 16. Therein, Plaintiff
requested an order from the Court determining the
arbitrability of Defendants' counterclaims. On November
20, 2017, the Court issued a Memorandum Opinion and Order
holding that only some of Defendants' counterclaims
remain in arbitration and granting in part and denying in
part Plaintiffs Motion for Relief from Stay and Motion for
Order to Declare the Scope of the Arbitration Proceedings.
December 18, 2017, Defendants filed a notice of appeal of the
Court's November 20, 2017, order with the Eighth Circuit
Court of Appeals. Doc. 27.
January 29, 2019, Defendants filed a Motion to Stay
Proceedings on Counterclaims Pending Appellate Proceedings
and Arbitration and this motion is currently pending before
the Court. Doc. 34. Attached as an exhibit to Defendants'
brief in support of its motion to stay is a copy of
Defendants' Answer, Affirmative Defenses, and
Counterclaims that was presented in the arbitration
proceedings. Doc. 35-1. In its brief in support of its motion
to stay, Defendants state that "the parties dispute
whether [P]laintiff has been served with or otherwise
provided notice of the [c]ounterclaims for purposes of
satisfying or tolling any applicable statute of limitation
that may apply to the [c]ounterclaims." Doc. 35.
Defendants state that they "file[d] [the] motion [to
stay] and their [c]ounterclaims ... to avoid any contention a
statute of limitations may apply to bar them based on not
having been filed with the Court or served on
[P]laintiff." Doc. 35.
February 6, 2019, the Eighth Circuit Court of Appeals issued
its opinion affirming the Court's November 20, 2017,
order, except the Court's finding that the Williamses,
not the firm, terminated the representation with that being a
determination to be made within and for the arbitration
proceedings and the court remanded for further proceedings.
February 15, 2019, Plaintiff filed its response to
Defendants' Motion to Stay Proceeding Pending Appellate
Proceedings and Arbitration. Doc. 38. Plaintiff stated that
it has no objection to Defendants filing their Answer,
Affirmative Defenses and Counterclaims, but contend that that
pleading has not been served to date in these proceedings.
Doc. 38. Since the Court of Appeals has already issued its
decision, Plaintiff stated that once the pleading is filed,
it has no objection to the Court staying these proceedings
pending the arbitration of any claims in these proceedings.
the Local Rules 5.1, "[a]ll attorneys, including
attorneys admitted pro hac vice and attorneys authorized to
represent the United States, must register with the
court's electronic filing system . . . [and]
[Registration constitutes written consent to electronic
service of all documents filed in accordance with these rules
and the Federal Rules of Civil Procedure." D.S.D. L.R.
5.1.1. "Receipt of Notice of Electronic Filing (NEF)
that is generated by the Case Management/Electronic Case
Filing (CM/ECF) system constitutes service of pleadings or
other papers on any person who has consented to electronic
service." L.R. 5.1.2.
stated above, Defendants filed their Answer, Affirmative
Defenses and Counterclaims with the Court as an exhibit to
Defendants' brief in support of their Motion to Stay
Proceedings Pending Appellate Proceedings and Arbitration.
ORDERED that Plaintiff shall hereby file with the Court no
later than 5:00 p.m. on April 8, 2019, legal authority to
support its argument that it has not be served with