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SAGA v. Voornas Attorneys and Footnotes

Attorneys for the plaintiff:

James G. Goggin, Esq.
Christopher McLaughlin, Esq.
Verrill & Dana
P.O. Box 586
Portland, Maine 04112

Attorney for the defendant:

Robert W. Kline, Esq.
75 Market St.
P.O. Box 7859
Portland, Maine 04112
FOOTNOTES******************************** {1} . Though Saga repeatedly based parts of its arguments before the Superior Court on Citadel's actions and "unjust enrichment," Citadel has never been made a party to this action. {2} . Several Citadel stations were listed as competitors under the noncompete agreement. {3} . The court also denied Voornas's motion to dismiss at that hearing. {4} . Section 5945 is an exception to the final judgment rule. See Maine Cent. R. R. Co. v. Bangor & Aroostook R. R. Co., 395 A.2d 1107, 1112-13 (Me. 1978). Saga's appeal was expedited upon its request, but due to Saga's delay in requesting arbitration, we were unable to decide this case prior to the expiration of the six month non-compete period, which expired on March 1st. Saga did not file its notice of appeal until February 9, 2000, and though we granted Saga's request that the appeal be expedited, even under that expedited schedule, the reply briefs were due one day prior to the expiration of the non-compete period, with the case scheduled for conference six days later. {5} . Saga does not dispute that the Superior Court was the proper forum for a determination of whether it has waived arbitration. See Doctor's Assoc., Inc. v. Distajo, 66 F.3d 438, 456 (2nd Cir. 1995) (holding that courts may decide the issue of waiver when the party seeking to compel arbitration has already participated in litigation on the dispute); Jones Motor Co. v. Chauffeurs Local No. 633, 671 F.2d 38, 43-44 (1st Cir. 1982). {6} . Maine has adopted a similar strong policy favoring the enforcement of arbitration clauses. See J. M. Huber Corp. v. Main-Erbauer, Inc., 493 A.2d 1048, 1050 (Me. 1985); Westbrook Sch. Comm. v. Westbrook Teachers Ass'n, 404 A.2d 204, 207-08 (Me. 1979) {7} . Although Saga claimed that the Superior Court invited a renewed motion if Voornas went on the air, the record does not reveal such a request. {8} . Voornas also filed a motion to dismiss; this motion litigated substantial issues going to the merits of the breach of contract claim, see Teltronics Serv., Inc. v. LM Ericksson Telecomm., Inc., 642 F.2d 31, 34 (2nd Cir. 1981), but not to the merits of the trade secrets claim: Voornas's motion was filed the day after Saga's amended complaint and did not address the newly added trade secrets count. {9} . The filing of these motions would necessarily appear in a different light if Voornas and not Saga had filed the complaint in this case. Saga would then be unwillingly brought to court, and Voornas could not escape arbitration merely by filing a substantive motion. Likewise, Voornas could not be said to have been reasonable in her expenditure of time and effort on a motion for summary judgment if Saga had attempted to compel arbitration from the beginning of the case. The crux of the present case, and the essential difference from those situations, is that Saga made a free choice of forum to resolve its dispute and only sought to escape that choice after significant litigation had ensued. {10} . Though this is the majority position, there are differences of opinion regarding how this requirement is approached; the First Circuit has recently questioned whether prejudice may be merely one of several factors, whereas the Fifth Circuit, in addition to requiring that the non-movant show prejudice, also requires that party to overcome a presumption against a finding of waiver. See Menorah, 72 F.3d at 221; Walker v. J.C. Bradford & Co., 938 F.2d 575, 577 (5th Cir. 1991). {11} . The Seventh Circuit stands on its own in holding that the commencement of the litigation process creates a rebuttable presumption that waiver has occurred; prejudice is then examined to determine whether the presumption has been rebutted. See Cabinetree of Wisconsin, Inc. v. Kraftmaid Cabinetry, Inc., 50 F.3d 388, 390-91 (7th Cir. 1995). {12} . Because we conclude that Saga has waived its right to arbitrate, we assume without deciding that the arbitrator could issue the relief Saga requests.

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