MEMORANDUM OPINION AND ORDER

AMIT P. MEHTA, District Judge.

Before the court is Defendant Dream Catcher, L.L.C.'s Motion to Stay and Motion to Compel Arbitration ("Motion to Stay"). See Def.'s Mot., ECF No. 21 [hereinafter Def.'s Mot.]; Def.'s Am. Mot., ECF No. 22 [hereinafter Def.'s Am. Mot.]. Plaintiff Stephen Kelleher responds, in part, that the Defendant forfeited its right to arbitrate by availing itself of the "litigation machinery" of this case. Pl.'s Opp'n to Def.'s Am. Mot., ECF No. 25 [hereinafter Pl.'s Opp'n], at 3. The court agrees.1

The D.C. Circuit's decision in Zuckerman Spaeder LLP v. Auffenberg, 646 F.3d 919 (D.C. Cir. 2011), sets forth the relevant legal principles. In that case, the court recognized that a defendant can forfeit its right to a stay pending arbitration under the Federal Arbitration Act, 9 U.S.C. § 3, if it fails to timely assert the right. Id. at 922. The court defined "timeliness" in that context as follows: A defendant "who has not invoked the right to arbitrate on the record at the first available opportunity, typically in filing his first responsive pleading or motion to dismiss, has presumptively forfeited that right." Id. The failure to assert that right at the first available opportunity is not fatal, however. A defendant can overcome the presumption of forfeiture if it shows that its delay "imposed no or little cost upon opposing counsel and the courts." Id. at 923.

Applying those principles here, Defendant's Motion is untimely and Defendant fails to overcome the presumption of forfeiture. Defendant did not assert its right to arbitrate at the first available opportunity. On October 31, 2016, ten days after removing its case to this court, Defendant filed an Answer, ECF No. 4, and a Motion to Dismiss in part, ECF No. 3. Defendant failed to invoke its right to arbitrate in either pleading. Nor did Defendant invoke the right soon thereafter. Rather, Defendant filed its Motion to Stay over five months later, on April 10, 2017. See Def.'s Mot.2

Defendant's delay imposed substantial costs on Plaintiff and required the attention of the court. Defendant filed an initial Motion to Dismiss, which Plaintiff opposed, see ECF No. 7, and which the court considered in full and denied, see Mem. Op. & Order, ECF No. 11. Defendant also participated in the meet and confer required under Local Civil Rule 16.3 and, together with Plaintiff, proposed a schedule for further proceedings. See ECF No. 9. And, after Plaintiff filed an Amended Complaint, Defendant filed two new Motions to Dismiss on January 27, 2017, see ECF Nos. 15, 16, which Plaintiff also opposed, see ECF Nos. 17, 18. Those Motions remain pending.

Defendant's delay also imposed discovery costs on Plaintiff. Plaintiff served its Rule 26(a)(1) initial disclosures on January 13, 2017, see ECF No. 14; made its Rule 26(a)(2) expert disclosures on March 24, 2017, see ECF No. 20; prepared and served interrogatory and document requests; and attempted to schedule depositions for key witnesses, see Pl.'s Opp'n at 4. Plaintiff would not have incurred these costs had Defendant invoked it right to arbitrate at the outset.

As the foregoing demonstrates, Defendant has not overcome the presumption that it forfeited its right to arbitrate after failing to invoke that right at the earliest opportunity. See Zuckerman Spaeder, 646 F.3d at 923-24. Accordingly, Defendant's Motion to Stay is denied. This is a final, appealable Order. See id. at 921 (citing 9 U.S.C. § 16(a)(1)(A)).