Gray filed suit claiming breach of an employment contract. Gray actually filed three lawsuits: two in state and federal court in New York and this one. Her former employer responded with a combined motion to dismiss and motion to compel arbitration. The employment agreement included an arbitration provision. GC Services argued Gray did not state a cognizable claim because it was precluded by the other lawsuits. GC Services asked “merely as an alternative” for the trial court to compel arbitration. The trial court granted the motion to dismiss and decided there was no need to decide whether the arbitration clause applied. The case was dismissed, and Gray appealed. GC Services defended the appeal by arguing Gray’s opening brief did not follow the rules. Court holds the brief is close enough. The court of appeals then holds the trial court should have compelled arbitration rather than dismiss. And, regardless of whether there is a “legally cognizable claim” the case should be decided by arbitration.  We wonder. How did the plaintiff not waive arbitration by filing the lawsuit? And, as a defendant, why ask for arbitration when the complaint fails to state a claim?

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