[TX] [TX] Where do I file a motion to stay proceedings pending arbitration pursuant to 9 U.S.C. § 3 in which the Federal Arbitration Act (FAA) has been invoked in an arbitration agreement?
I filed a related case in a Harris County district court in Texas; however, I have a related arbitration case going on. The judge says she can’t rule on federal law, which I disagree with on this matter. Should I file an appeal in the state Appellate Court or file a motion in federal court?
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File an interlocutory appeal (or, in the alternative, a mandamus petition) in the Texas Court of Appeals (1st or 14th—Houston) from the district court order that refuses to stay/compel arbitration. A Texas trial judge can—and must—apply the Federal Arbitration Act (FAA); if she claims she “can’t rule on federal law,” the remedy is review in the state appellate system, not a new motion in federal court.
The FAA creates substantive federal law that is equally binding on state and federal courts. State courts must enforce § 2 of the FAA and honor stay/compel requests. A state court that refuses to honor an FAA arbitration clause commits reversible error.
Since 2009, Texas law allows you to appeal immediately when a trial court denies (or refuses to rule on) a motion to compel arbitration under either the FAA or the Texas Arbitration Act (TAA). See Tex. Civ. Prac. & Rem. Code § 51.016. The deadline is 20 days from the signed order (Tex. R. App. P. 26.1(b)). File in the court of appeals that covers Harris County (1st or 14th).
If the judge has not entered a written order (just an oral statement), ask for one or file for mandamus; Texas appellate courts routinely grant mandamus relief compelling arbitration when the FAA applies (see In re Merrill Lynch Trust Co., 235 S.W.3d 185 (Tex. 2007)).
Removal to federal court is allowed only if you have an independent federal-question or diversity basis. The FAA itself does not create federal-question jurisdiction (Southland). Even with jurisdiction, you cannot have a federal court review a state judge’s refusal—that would be barred by the Rooker–Feldman doctrine. Stay in the state system.
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Where do I file a motion to stay proceedings pending arbitration pursuant to 9 U.S.C. § 3 in which the Federal Arbitration Act (FAA) has been invoked in an arbitration agreement? I filed a related case in a Harris County district court in Texas; however, I have a related arbitration case going on. The judge says she can’t rule on federal law, which I disagree with on this matter. Should I file an appeal in the state Appellate Court or file a motion in federal court?
Lexi, Chatbot
I understand the complexity of your situation. Have you already raised the issue of arbitration in the Harris County district court where your case is pending?
Yes.
Lexi, Chatbot
Have you consulted with an attorney who specializes in arbitration and federal law to get their opinion on the best course of action in this situation?
No.
Lexi, Chatbot
Is there anything else the lawyer should know before I connect you? Rest assured they’ll be able to help with your arbitration issue.
Yes.
Queeneth E. Esq
What state are you in?
Texas.
Queeneth E. Esq
File an interlocutory appeal (or, in the alternative, a mandamus petition) in the Texas Court of Appeals (1st or 14th—Houston) from the district court order that refuses to stay/compel arbitration. A Texas trial judge can—and must—apply the Federal Arbitration Act (FAA); if she claims she “can’t rule on federal law,” the remedy is review in the state appellate system, not a new motion in federal court.
The FAA creates substantive federal law that is equally binding on state and federal courts. State courts must enforce § 2 of the FAA and honor stay/compel requests. A state court that refuses to honor an FAA arbitration clause commits reversible error.
Since 2009, Texas law allows you to appeal immediately when a trial court denies (or refuses to rule on) a motion to compel arbitration under either the FAA or the Texas Arbitration Act (TAA). See Tex. Civ. Prac. & Rem. Code § 51.016. The deadline is 20 days from the signed order (Tex. R. App. P. 26.1(b)). File in the court of appeals that covers Harris County (1st or 14th).
If the judge has not entered a written order (just an oral statement), ask for one or file for mandamus; Texas appellate courts routinely grant mandamus relief compelling arbitration when the FAA applies (see In re Merrill Lynch Trust Co., 235 S.W.3d 185 (Tex. 2007)).
Removal to federal court is allowed only if you have an independent federal-question or diversity basis. The FAA itself does not create federal-question jurisdiction (Southland). Even with jurisdiction, you cannot have a federal court review a state judge’s refusal—that would be barred by the Rooker–Feldman doctrine. Stay in the state system.
Thank you. Yes, I do have another question. The judge also claimed that I could not represent myself in this matter. It is a wrongful death case. Her excuse was, “This is not J.P. Court.” She kept asking, “Where is your attorney?” I ignored it because I thought she was incompetent and/or asking a rhetorical question. When I tried to answer, she cut me off and got mad. How do I address this inappropriateness? Can I file a complaint with the bar or the board supervising her, or can I ask the appellate court to give an opinion?
Queeneth E. Esq
You can sue only for your own wrongful-death damages under Tex. Civ. Prac. & Rem. Code § 71.004—you may appear pro se for your own claims. You cannot represent other statutory beneficiaries or the estate without being a licensed attorney. If you’re suing only for your own damages, file an amended pleading clarifying that you appear pro se solely on your own behalf, dropping any estate claims.
If the judge still refuses to let you proceed, you may seek a writ of mandamus in the court of appeals. Rudeness alone rarely merits discipline, but if she persists after clarification, you may file a complaint with the Texas Commission on Judicial Conduct. Do not file with the State Bar—they oversee attorneys, not judges.
Well, I started the claim within 3 months of death by sending the 60-day notice to sue, which is required. My understanding is that I can file the case as an heir if the claim was started within 90 days. Please advise.
Queeneth E. Esq
You can file a survival action as an heir if no personal representative is appointed within 3 months, but your petition must plead this explicitly. If missing, the court may dismiss for lack of capacity.
Statute of limitations for med-mal: 2 years from date of negligence/death, tolled 75 days with timely notice. Filing late will require dismissal with prejudice.
The judge signed one of the defendant’s motions to dismiss with prejudice after she said she would not rule on the motion to stay proceedings pending arbitration. Do I just file a motion to vacate the order in the appellate court?
Queeneth E. Esq
No—you must first file a motion for new trial in the trial court within 30 days of the dismissal order. If you miss that, file a notice of appeal within 30 days after the judgment is final. A “motion to vacate” in the appellate court will be rejected without proper procedure.
Queeneth E. Esq
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