Alston v. Midland Credit Management

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Michael A Alston,
Plaintiff,
v.
Midland Credit Management, et al.,
Defendants.
No. CV-25-02196-PHX-DWL
ORDER
On March 28, 2025, Plaintiff, who is proceeding pro se, filed a complaint in Pinal
County Superior Court. (Doc. 1 at 2 ¶ 1.) On April 8, 2025, Plaintiff filed a Second
Amended Complaint (“SAC”) in which he named four defendants—Midland Credit
Management, Midland Funding, LLC, Encore Capital Group, and Synchrony. (Id. at 9-
15.) Synchrony then removed the action to federal court and filed a motion to
dismiss. (Docs. 1, 14.) On August 25, 2025, the Court granted Synchrony’s motion but
also granted Plaintiff leave to amend. (Doc. 52.) Afterward, Plaintiff filed a Third
Amended Complaint (“TAC”). (Doc. 53.)
On October 15, 2025, Synchrony moved to dismiss the TAC. (Doc. 58.)
On October 20, 2025, Plaintiff filed a motion to compel arbitration and stay this
action. (Doc. 59.) Plaintiff did not separately file a response to Synchrony’s motion to
dismiss, although the “Prayer for Relief” in Plaintiff’s motion to compel arbitration and
stay the action includes a request to “Deny Synchrony Bank’s Motion to Dismiss With
Prejudice.” (Id. at 11.)
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On October 30, 2025, Synchrony filed a “notice of no response” requesting that its
motion to dismiss be summarily granted. (Doc. 60.)1 In a footnote, Synchrony also
observes that “Plaintiff’s initiation of this lawsuit, his subsequent amended pleadings, and
his significant motion practice collectively suggest that Plaintiff has waived any right to
arbitration.” (Id. at 1 n.1.)
“[T]he filing of a motion to stay does not impact the obligation to proceed; only an
order granting such relief imposes a stay.” PlayUp, Inc. v. Mintas, 635 F. Supp. 3d 1087,
1094 (D. Nev. 2022). Nevertheless, it is common for parties to assume (incorrectly) that a
motion for a stay, filed before the expiration of a pending deadline, effectively stays that
deadline until the stay motion is resolved. A party that wishes to delay a deadline during
the pendency of a stay request can properly request such relief via a motion to extend that
deadline—relief courts often grant to maintain the status quo during the pendency of the
stay request. See, e.g., Travelers Indem. Co. v. McKinstry Co., LLC, 2025 WL 1089525,
*2 (W.D. Wash. 2025) (“During the pendency of the motions to stay, McKinstry and Sellen
moved for two extensions to their deadline to answer Travelers’s complaint. Judge
Vaughan initially extended these Defendants’ deadline to answer until January 20, 2025,
then re-extended the deadline to a date 14 days after the Court’s adjudication of the motions
to stay.”) (citation omitted).
Because Plaintiff failed to request a deadline extension, Plaintiff’s request for a stay
did not relieve Plaintiff of the requirement to respond to Synchrony’s motion to dismiss,
and that motion could be granted summarily at this juncture. See LRCiv 7.2(i) (“[I]f the
unrepresented party . . . does not serve and file the required answering memoranda, . . .
such non-compliance may be deemed a consent to the . . . granting of the motion and the
Court may dispose of the motion summarily.”). However, before dismissing on this basis,
“the district court is required to weigh several factors: (1) the public’s interest in
expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk
of prejudice to the defendants; (4) the public policy favoring disposition of cases of their
1 This request should have been made by motion. Fed. R. Civ. P. 7(b)(1).
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merits; and (5) the availability of less drastic sanctions.” Ghazali v. Moran, 46 F.3d 52, 53
(9th Cir. 1995). Considering that Plaintiff, proceeding pro se, filed a motion to stay this
action before the deadline to respond to the motion to dismiss expired, summarily granting
the motion to dismiss appears unduly harsh. There is no risk of prejudice to Synchrony, as
the deadline to respond to the motion to dismiss elapsed only two days ago. The public
policy favoring disposition of cases of their merits favors allowing the motion to dismiss
to become fully briefed and decided on its merits. Finally, an informal admonition is an
available less drastic sanction, and this order serves that purpose.
Furthermore, the Court is able to resolve the pending motion to compel arbitration
without full briefing because it does not provide a valid basis for denying Synchrony’s
motion. As Synchrony correctly notes in its “notice,” Plaintiff has waived the right to
compel Defendants to submit to arbitration under these circumstances. See, e.g.,
Prudential-Bache Securities, Inc. v. Stevenson, 706 F. Supp. 533, 536 (S.D. Tex. 1989)
(“Plaintiff cannot invoke the jurisdiction of the Court, permit six months to pass, and then
seek an alternative forum by a motion to compel arbitration.”); Bolo Corp. v. Homes & Son
Const. Co., 464 P.2d 788, 792 (Ariz. 1970) (“We hold that when this plaintiff sought
redress through the courts, in lieu of the arbitration tribunal, and asked the court for exactly
the same type of relief (i.e. damages), which an arbitrator is empowered to grant, it waived
the right to thereafter arbitrate the controversy over the protest of the defendant.”); Sussman
v. Goldberg, 210 N.Y.S.2d 912 (N.Y. Sup. Ct. 1960) (“By bringing suit, a plaintiff
generally irrevocably waives and abandons any right to arbitration. Unless compelled to
do so, he cannot later change his mind and compel arbitration once he has waived it by
bringing the action.”).
Accordingly,
IT IS ORDERED that:
1. The “Notice of No Response” (Doc. 60) is construed as a motion to summarily
grant Synchrony’s motion to dismiss and is denied.
2. Plaintiff’s motion to compel arbitration (Doc. 59) is denied.
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3. Plaintiff’s deadline to respond to Synchrony’s motion to dismiss (Doc. 58) is sua
sponte extended to November 14, 2025. Failure to respond by this deadline will result in
dismissal of Plaintiff’s claims against Synchrony.
Dated this 31st day of October, 2025.
Case 2:25-cv-02196-DWL Document 61 Filed 10/31/25 Page 4 of 4