HEARING ORDERED BY THE COURT

DISTRICT COURT

CLARK COUNTY, NEVADA

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE that on ___________________, 2022, at 8:30 a.m., or as soon thereafter as it may be heard, in Department 27 of the above-entitled court (located at [INSERT COURT ADDRESS]), defendant 2TWENTY TWO, LLC (“222”) will and hereby does move for an order compelling arbitration of claimant ITRIA VENTURES LLC (“ITRIA”) complaint, and staying any further proceedings.

222 makes this motion pursuant to NV Rev Stat § 38.221 et seq., on the grounds that claimant is bound by a written agreement to arbitrate the subject matter of the complaint. In addition, while arbitration of claimant’s complaint is pending, further proceedings “shall” be stayed “until an arbitration is had.” NV Rev Stat § 38.221.6.

This motion is based on this notice of motion, the attached memorandum of points and authorities, the declaration of [insert your name as representative of the company], the record and all pleadings and papers on file in this action, any relevant matters that are judicially noticeable, and such other or further argument or evidence as may be presented to the Court at or before the hearing hereof.

Respectfully submitted,

Dated February 21, 2022 /s/ [insert your name]

[insert your name]

[insert address]

Special Appearance – Pro Se

MEMORANDUM OF POINTS AND AUTHORITIES

INTRODUCTION.

Plaintiff’s sole claim against the Defendants is for declaratory relief, and concerns payment of future receivables that Plaintiff contends he is entitled to receive under Future Receivables Sale Agreement, which agreement contains a valid, binding agreement to arbitrate. A Plaintiff who “brings a claim which relies on contract terms” to assert an “entitle[ment] to recover for its breach” is bound to arbitrate and “estopped from repudiating the arbitration clause contained in that agreement.” JSM Tuscany LLC v. Superior Court, 193 Cal. App. 4th 1222, 1239-1240 (2011). Plaintiff is also bound to arbitrate its dispute because it claims to be a party to the agreement. Plaintiff’s complaint thus cannot proceed in this Court, and must instead be ordered to arbitration. Furthermore, because the courts of this state “shall . . . stay” an action, proceeding, or issue that has been ordered to arbitration, Defendants respectfully request that any further proceedings on Plaintiff’s case be stayed pending the completion of arbitration. See NV Rev Stat § 38.221.6.

FACTUAL BACKGROUND.

On or about December 9, 2021, Plaintiff entered into a Future Receivables Sale Agreement with Blue Screen, LLC, d/b/a 222 Beauty Boutique, 2Twenty Two, LLC for purchase of Blue Screen;s and 2Twenty Two’s furture account receivables in the amount of $103,700.00. Pursuant to the agreement, Blue Screen and 2Twenty Two agreed to remit periodic payments in the amount of $2,160.42 plus 8.83% of future receivables, to Plaintiff on a weekly basis. Plaintiff alleges breach of the terms of the agreement and filed the present complaint against the Defendants seeking to recover the sum of $99,429.16.

Plaintiff’s Future Receivables Sale Agreement contains a clear and conspicuous agreement to arbitrate the claims that may brought against a party to the agreement. Specifically, as part of the agreement, Plaintiff agreed to arbitrate “any Dispute […] involving this Agreement.” The scope of the arbitration agreement requires Plaintiff to arbitrate disputes arising out of the agreement. The provisions of the Arbitration clause were conspicuously disclosed to both parties in the agreement. Plaintiff had no barriers to access arbitration to resolve any dispute. Yet, despite these clear protections and contractual obligations, Plaintiff did not pursue its claims in the arbitral forum required by the agreement. Instead, Plaintiff instituted this lawsuit.

III. ARGUMENT

THE ARBITRATION AGREEMENT

A party seeking to compel arbitration meets its burden by “proving the existence of a valid arbitration agreement by the preponderance of the evidence[.]” Engalla v. Permanente Med. Grp., Inc., 15 Cal. 4th 951, 972 (1997); see also Avery v. Integrated Healthcare Holdings, Inc., 218 Cal. App. 4th 50, 59 (2013). The inquiry concludes upon the demonstration of the existence of an arbitration agreement; questions of the agreement’s scope “are for the arbitrators and not for the court to resolve.” Felner v. Meritplan Ins. Co., 6 Cal. App. 3d 540, 543 (1970).2 Once that initial burden is met, the burden shifts to the party opposing arbitration, who must establish one of the limited statutory exceptions to arbitrability in sections 1281.2(a)-(d). See Engalla, 15 Cal. 4th at 972.

First and foremost, it must be noted that the agreement that is the subject of this dispute, was drawn and approved by the Plaintiff and later presented to the Defendants for their execution. As such, the Plaintiff cannot dispute the clause as it was aware of its existence from the moment it was drafted. Thus, there can be no doubt that Plaintiff has agreed to arbitrate, rather than litigate, the claims in its Complaint. The terms of the arbitration agreement make clear that Plaintiff’s claims are within the scope of the arbitration agreement and must, accordingly, be sent to arbitration.

The Uniform Arbitration Act of 2000 (UAA), adopted in Nevada as NRS 38.206-.248, does not require any particular formality to create an enforceable arbitration agreement. Rather, it states simply: “An agreement contained in a record to submit to arbitration any existing or subsequent controversy arising between the parties to the agreement is valid, enforceable and irrevocable except upon a ground that exists at law or in equity for the revocation of a contract.” UAA § 6(a), 7 U.L.A. 25 (part 1A) (West 2009), codified in substantially similar form at NRS 38.219(1).

The Future Receivables Sale Agreement on which Plaintiff bases its claim contains a broad and unambiguous agreement to arbitrate. The scope of that agreement is comprehensive—covering “any and all claims and controversies” as well as “all disputes that may arise between” plaintiff and Defendants, and there are no exceptions to its reach.

Defendants therefore meet their burden to “prov[e] the existence of a valid arbitration agreement” by a preponderance of the evidence. Engalla, 15 Cal. 4th at 972. “‘Typically, those who enter into arbitration agreements expect that their dispute will be resolved without necessity for any contact with the courts.’” Moncharsh v. Heily & Blase, 3 Cal. 4th 1, 9 (1992) (“[T]he Legislature has expressed a ‘strong public policy in favor of arbitration[.]’”) (citations omitted).

THE CROSS-COMPLAINT MUST BE STAYED.

Where a court has compelled arbitration of an issue, any further proceedings on that issue “shall” be stayed upon motion by an involved party.  NV Rev Stat § 38.221.6. The purpose of the stay is “to protect the jurisdiction of the arbitrator by preserving the status quo until the arbitration is resolved . . . since, in the absence of such a stay, a party could simply litigate claims that it had agreed to arbitrate.”  MKJA, Inc. v. 123 Fit Franchising, LLC, 191 Cal. App. 4th 643, 660 (2011). “Any party to a judicial proceeding is entitled to [such] a stay” upon a showing that the parties have agreed to submit to arbitration even “a single question of law or fact.”  Heritage Provider Network, Inc. v. Superior Court, 158 Cal. App. 4th 1146, 1152-53 (2008).

Applying these principles to the facts at hand, any further proceedings on Plaintiff’s cross-complaint must be stayed “until an arbitration is had.” NV Rev Stat § 38.221.6

IV. CONCLUSION

For the foregoing reasons, 222 respectfully requests that this Court order Plaintiff to submit his complaint against 222 and other Defendants to arbitration on the terms of the Future Receivables Sale Agreement with which he is equitably obligated to comply, and further order that proceedings on his complaint be stayed for the duration of that arbitration.

Respectfully submitted,

Dated February 21, 2022 /s/ [insert your name]

[insert your name]

[insert address]

Special Appearance – Pro Se

CLARK COUNTY, NEVADA

I, [insert your name], declare as follwos:

1. The following fats are of my own personal knowledge, and if called as a witness I could and would testify competently as to their truth.
2. I am currently the [insert designation] for 2TWENTY TWO LLC.
3. On or about December 9, 2021, Plaintiff entered into a Future Receivables Sale Agreement with Blue Screen, LLC, d/b/a 222 Beauty Boutique, 2Twenty Two, LLC for purchase of Blue Screen;s and 2Twenty Two;s furture account receivables
4. That the agreement was executed by one Britney Marie Wings, who did not have proper authority to bind the company to the said agreement.
5. I am aware of the arbitration clause that forms part of the said agreement, requiring any form of dispute or disagreement to be referred to arbitration.
6. That the Plaintiff instead issued instructions to file a complaint against the Defendants with a view of resolving the dispute.
7. That I submit this my declaration in support of the motion to compel arbitration pursuant to the term of the agreement willingly and knowingly executed by the parties to the present action.
8. I declare under penalty of perjury that the foregoing is true and correct.

Executed in [insert city], Nevada on February 22, 2022.

_______________________________

[insert your name]

At Legal writing experts, we would be happy to assist in preparing any legal document you need. We are international lawyers and attorneys with significant experience in legal drafting, Commercial-Corporate practice and consulting. In the last few years, we have successfully undertaken similar assignments for clients from different jurisdictions. If given this opportunity, The LegalPen will be able to prepare the legal document within the shortest time possible. You can send us your quick enquiry ( here )