Jeremiah Parker v. Durham School Services, L.P., 130 F.4th 649

Plaintiffs (Tiffaney Whitt on behalf of her minor children and her adult son, Jeremiah Parker) sued Kearney School District and Durham School Services due to alleged continuous racial harassment experienced by Parker and his siblings on a school bus operated by Durham.
Plaintiffs brought a § 1981 claim against Durham, alleging they are intended third-party beneficiaries of the contract between Kearney and Durham which required Durham to provide safe, non-discriminatory transportation.
The district court denied Durham’s motions to dismiss and for summary judgment, finding at summary judgment that the contract was intended to benefit students/parents.
After losing summary judgment, Durham moved to compel arbitration just 15 days before trial, relying on an arbitration clause in its contract with Kearney but had not raised arbitration previously.
The district court denied the motion to compel, holding that Durham waived its right to arbitrate by engaging in extensive litigation before raising the arbitration issue.
Durham appealed the denial of its motion to compel arbitration to the Eighth Circuit.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Waiver of arbitration right	Durham acted inconsistently by litigating for an extended period before raising arbitration, causing prejudice to Plaintiffs	Durham only realized arbitration applied after summary judgment clarified Plaintiffs were third-party beneficiaries; sought arbitration as soon as possible	Durham waived its right: knew about arbitration and acted inconsistently by invoking litigation machinery before moving to compel
Timing of motion to compel	Filing motion 15 days before trial prejudiced Plaintiffs	Delay was justified by need for summary judgment ruling on beneficiary status	Prejudice is no longer a required element post-Morgan; but Durham acted inconsistently regardless
Good faith basis for appeal	Appeal was frivolous and should be sanctioned	Appeal was based on a reasonable good faith argument	Appeal was not frivolous; motion for sanctions/costs denied

Messina v. N. Cent. Distrib., Inc., 821 F.3d 1047 (8th Cir. 2016) (discussing standard for waiver of arbitration, strong federal policy favoring arbitration)
Lewallen v. Green Tree Servicing, LLC, 487 F.3d 1085 (8th Cir. 2007) (three-part waiver standard for arbitration—knowledge, inconsistent acts, prejudice)
Hooper v. Advance America Cash Advance Centers of Missouri, Inc., 589 F.3d 917 (8th Cir. 2009) (party cannot wait to see outcome in court before moving to compel arbitration; acting inconsistently waives arbitration)