Whether litigation conduct waives the right to arbitration is a gateway issue that the court rather than the arbitrator decides.  Here, defendant’s conduct of the litigation for 17 months before moving to compel arbitration waived the right to arbitration.  The litigation included a motion to dismiss on a key legal issue and extensive discovery including a deposition taken by the defendant. Plaintiff was prejudiced by having to expend considerable sums on the litigation and if sent to arbitration would have to re-litigate the key issue already resolved on the motion to dismiss.

Ninth Circuit Court of Appeals (Reinhardt, J.); July 21, 2016; 2016 WL 3924381