Cooper v. Asset Acceptance, LLC, 532 F. App'x 639

Cooper opened a personal line of credit with HSBC in 2004 and agreed to an arbitration rider covering “any claim, dispute, or controversy.”
Cooper defaulted; Asset Acceptance purchased the delinquent account and sued Cooper in state court for the balance. Arbitration and a bench trial earlier produced judgments that were later vacated by settlement between the original parties.
Cooper later sued Asset in Illinois state court (putative class) alleging violations of the Illinois Consumer Agency Act and unjust enrichment; Asset removed to federal court.
Asset moved to dismiss, sought to stay discovery, removed the case, and participated in some discovery and scheduling while the motion to dismiss was pending; the district court denied the stay and denied the motion to dismiss.
Asset then moved to compel arbitration; the district court granted the motion and dismissed Cooper’s case without prejudice. Cooper appealed, arguing Asset waived its arbitration right by litigating in court and participating in discovery.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Did Asset waive its contractual right to arbitrate?	Asset’s litigation conduct (removal, motion to dismiss, participation in discovery and scheduling) shows intent to litigate and thus waiver.	Removal and a motion to dismiss (not summary judgment), limited discovery participation, and attempt to stay discovery do not show an intent to abandon arbitration; any delay was modest and linked to waiting on the court’s ruling.	No waiver: totality of circumstances does not show Asset acted inconsistently with its arbitration right.
Does removal to federal court and participation in discovery create a presumption of waiver that Cooper can rely on?	Removal plus discovery participation triggers a presumption of waiver similar to Cabinetree.	The presumption is rebuttable; Asset’s discovery was limited, it sought a stay, and it moved to compel arbitration 14 months before trial—so presumption overcome.	Presumption rebutted; removal and limited discovery did not establish waiver here.
Does the timing of Asset’s motion to compel (after denial of motion to dismiss) constitute unjustified delay/bombshell?	Filing after extensive litigation and only after losing motion to dismiss was untimely and prejudicial.	Motion to compel was filed promptly after denial of dismissal; 14-month lead to trial is not an extraordinary delay.	Delay was not unreasonable or prejudicial; no waiver from timing.

St. Mary’s Med. Ctr. of Evansville, Inc. v. Disco Aluminum Prods. Co., Inc., 969 F.2d 585 (7th Cir. 1992) (waiver can be inferred from litigation conduct; extent of litigation matters)
Cabinetree of Wis., Inc. v. Kraftmaid Cabinetry, Inc., 50 F.3d 388 (7th Cir. 1995) (extensive discovery and removal can create a presumption of waiver)
Kawasaki Heavy Indus., Ltd. v. Bombardier Recreational Prods., Inc., 660 F.3d 988 (7th Cir. 2011) (waiver analysis reviewed de novo; filing a motion to dismiss alone does not necessarily waive arbitration)