Both the FAA (9 U.S.C. § 6) and the Uniform Arbitration Act (RUAA § 5) say that an application to a court under the statute must be made by motion. In some courts, this creates a problem, because the clerk doesn’t know what to do with a motion that is not filed in a civil action. Of course, that can be a problem in other contexts too, notably in § 1782 cases but also in other ancillary proceedings like judgment recognition proceedings. But in my experience, it’s a particular problem in arbitration cases, and particularly in arbitration cases in state court.

The Massachusetts Superior Court has just issued an administrative directive that tries to bring some order to the chaos. The Massachusetts statute provides:

Except as otherwise provided, an application to the court under this chapter shall be by motion and shall be heard in the manner and upon the notice provided by law or rule of court for the making and hearing of motions. Unless the parties have agreed otherwise, notice of an initial application for an order shall be served in the manner provided by law for the service of an original writ of summons.

It’s important also to know that in our Superior Court, motions are made under Superior Court Rule 9A, which requires the movant to serve the motion before filing it, to await the opposition, and then to file the motion and the opposition together.

My practice has always been to serve a motion to confirm or vacate an arbitral award (serving as I would serve process under Mass. R. Civ. P. 4 rather than as I would serve other papers under Mass. R. Civ. P. 5, as the statute requires). But after a recent procedural muddle, I decided to ask the court to clarify the situation administratively, because it is a regular source of confusion.

To my pleasant surprise (I’m an inveterate letter-writer), the court decided to do something. It issued an administrative directive explaining what to do. The good news is that the procedure is now clear. The bad news is that I don’t think it’s the right procedure. I think the text of the statute makes it clear that you don’t file a complaint at the outset. You wouldn’t have to specify that a complaint should be served “in the manner provided by law for the service of an original writ of summons,” right? That last sentence in the statute clearly implies that you are serving something else—a motion—at the outset of the case.

But the biggest problem with the approach the court took is practical. The new administrative directive seems to say that you cannot bring a motion under the UAA until after the time to answer the complaint has passed. What does that mean in practice? Well, under Mass. R. Civ. P. 12, the respondent has 20 days to answer the complaint. Then the petitioner will serve a motion. So you are tacking on a month to the timeline of what should be a summary proceeding. And to what end? It seems hard to imagine a court or a litigant looking at the complaint or the answer in one of these proceedings once the motion is filed. Also, the new directive seems, on its face, not to allow emergency relief, even though there’s sometimes a need for quick action (e.g., when an arbitrator issues an interim award including equitable relief).

Still, it’s probably more important that lawyers now have a clear answer about how to proceed than that the way to proceed is the best way.

Here is a question that I do not think the administrative directive considers. What happens when the arbitration is governed by the FAA to the exclusion of state law yet the application is brought in state court?