Borror Property Mgmt v. Oro Karric North, 979 F.3d 491

Oro Karric North, LLC (Oro) and Borror Property Management, LLC (Borror) had management contracts with a clause: disputes ‘‘to be determined by arbitration’’ if a party so notified the other.
Oro sent a pre-suit letter asserting Borror breached the contracts, stated Oro planned to proceed to litigation unless Borror requested arbitration within six days, and otherwise would assume Borror preferred litigation.
One week later Borror filed a federal complaint alleging breach; Oro did not answer but promptly filed a motion to compel arbitration.
The district court denied Oro’s motion, concluding Oro had waived its arbitration right through its pre-filing conduct; Oro appealed and obtained a stay pending appeal.
The Sixth Circuit reviewed de novo whether Oro waived arbitration and reversed, holding Oro did not waive its arbitration right.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Did Oro waive arbitration by sending a pre-suit, litigation‑threatening letter?	Oro’s letter signaled intent to litigate and therefore waived arbitration.	Pre-filing correspondence is routine ‘‘posturing’’ and not necessarily inconsistent with arbitration; Oro even mentioned arbitration and moved to compel after suit.	No waiver: the letter was not “completely inconsistent” with arbitration.
Is prejudice required to find waiver or can an express waiver dispense with prejudice?	If a party expressly waives arbitration, prejudice need not be shown.	Even if express/implied distinction exists, Oro did not expressly waive; the usual rule requiring prejudice applies.	Court found no express waiver and applied the prejudice requirement.
Did Borror suffer prejudice from Oro’s pre-suit conduct and timing?	Borror claims prejudice from Oro’s litigation posture and any resulting delay.	Borror incurred no material time, expense, discovery advantage, or other litigation advancement caused by Oro; Oro moved to compel promptly.	No actual prejudice shown; waiver not established.

Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612 (2018) (Federal Arbitration Act reflects a liberal federal policy favoring arbitration)
Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1 (1983) (doubts about arbitrability and defenses resolved in favor of arbitration)
Johnson Assocs. Corp. v. HL Operating Corp., 680 F.3d 713 (6th Cir. 2012) (waiver of arbitration not lightly inferred)
Shy v. Navistar Int’l Corp., 781 F.3d 820 (6th Cir. 2015) (waiver requires inconsistency with arbitration and actual prejudice)
Gen. Star Nat’l Ins. Co. v. Administratia Asigurarilor De Stat, 289 F.3d 434 (6th Cir. 2002) (significant delay in asserting arbitration rights can constitute waiver)
Highlands Wellmont Health Network v. John Deere Health Plan, Inc., 350 F.3d 568 (6th Cir. 2003) (pre‑litigation letters often amount to ordinary posturing)
Hurley v. Deutsche Bank Trust Co. Ams., 610 F.3d 334 (6th Cir. 2010) (extensive litigation activity and delay can create prejudice supporting waiver)