United States District Court Judge Marilyn Hall Patel (Northern District of California) found that the defendant waived its right to enforce an arbitration agreement when it availed itself of the Court to file multiple motions to dismiss. Gonsalves v. Infosys Technologies, Ltd., 2010 WL 3118861 (N.D.Cal. Aug. 5, 2010).  The key factor, from the Courts perspective, was that Infosys sought and obtained the dismissal of certain claims in court:

The court therefore holds that Infosys-by waiting to file its motion to compel arbitration until after it filed two separate motions to dismiss for failure to state a claim which ultimately resulted in dismissal, with prejudice, of Gonsalves' FEHA and wrongful termination claims-waived its right to enforce the arbitration clause in Gonsalves' employment agreement.

Gonsalves, slip op., at 5.  This case concerns an individual employment claim, but the issue of arbitration has been and continues to be significant in class actions.  I will report on them when they are of interest.