Devon Robotics LLC v. Gaspar DeViedma

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________

No. 12-3676
_____________

DEVON ROBOTICS, LLC; DEVON HEALTH SERVICES
INC.; JOHN A. BENNETT, M.D.

v.

GASPAR DEVIEDMA; MCKESSON CORPORATION

Gaspar DeViedma,
Appellant
_______________

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-09-cv-03552)
District Judge: J. Curtis Joyner
_______________

Argued: October 29, 2014

Before: MCKEE, Chief Judge, GREENAWAY, JR. and
KRAUSE, Circuit Judges.

(Filed: August 5, 2015)
_______________
Gary M. Samms (Argued)
Obermayer, Rebmann, Maxwell & Hippel
1617 John F. Kennedy Boulevard
One Penn Center, 19th Floor
Philadelphia, PA 19103

Counsel for Appellees

James P. Golden (Argued)
Hamburg & Golden
1601 Market Street
Suite 3310
Philadelphia, PA 19103

Counsel for Appellant
_______________

OPINION OF THE COURT
_______________

KRAUSE, Circuit Judge.

This appeal stems from a failed agreement to distribute
robotic medical devices, but the issue before us is a threshold
question of jurisdiction under the Federal Arbitration Act (the
“FAA”). The case comes to us in the unusual posture of an
interlocutory appeal from an order denying summary
judgment, a type of order not normally before this Court, but
one the Appellant urges us to sweep within the ambit of
appellate jurisdiction under § 16 of the FAA on the ground
that it is the equivalent of an order denying a petition to
compel arbitration. We hold that § 16 does not sweep so

2
broadly and therefore will dismiss this appeal for lack of
jurisdiction.

I. Background

A. Factual History1

Appellee Devon Robotics, LLC (“Devon”) acquired
the rights to distribute two robotic medical devices, CytoCare
and i.v. Station, from an Italian corporation, Health Robotics,
S.r.l. (“Health Robotics”). Appellant Gaspar DeViedma
(“DeViedma”), the general counsel for Health Robotics,
negotiated the distribution contracts for both CytoCare and
i.v. Station. Each contract contained an identical arbitration
clause:

Disputes between the parties arising out of, in
relation to, or in connection with this agreement
or the breach thereof shall be finally settled by
binding arbitration. Any arbitration shall be
conducted in English under the rules of the
International Chamber of Commerce by a
single, mutually-agreed-to arbitrator and shall
be held in Geneva, Switzerland.

(App. 153 n.1.)

1
This factual summary is derived from the District
Court’s Memorandum and Order on the parties’ cross
motions for summary judgment.

3
 The CytoCare contract, which is the focus of this
dispute, was executed in September 2008. By February 2009,
CytoCare sales were not performing as the parties had hoped.
To help Devon boost sales, the parties executed a Second
Amendment to the CytoCare Distribution Agreement in
which Health Robotics agreed to provide executive
management consulting services to be performed by
DeViedma. Pursuant to that amendment, DeViedma began
acting as Devon’s Chief Operating Officer (“COO”).

Over the next few months, Devon conducted
negotiations with McKesson Corporation (“McKesson”)
regarding a sublicensing agreement for CytoCare, but
DeViedma allegedly obstructed McKesson’s ability to
complete a due diligence trip to Health Robotics’s
manufacturing facilities in Italy. Meanwhile, Devon failed to
make franchise fee payments to Health Robotics, leading
Health Robotics to draw down a $5 million line of credit that
Itochu International, Inc. (“Itochu”) had extended to Health
Robotics and Devon had guaranteed. In turn, this led Itochu
to bring a suit against Devon to recoup the $5 million as well
as an unrelated debt.

Shortly thereafter, in June 2009, DeViedma stopped
serving as Devon’s COO, and Devon and Health Robotics
executed a Fourth Amendment to the CytoCare Distribution
Agreement reflecting that the management consulting
services had been terminated. Health Robotics then
terminated its CytoCare contract with Devon altogether and
entered into a direct agreement with McKesson, with
DeViedma signing the termination letter to Devon in his
capacity as Health Robotics’s general counsel. Health
Robotics also sent Devon a notice alleging breaches of their
i.v. Station agreement, and DeViedma e-mailed several of

4
Devon’s hospital customers telling them that Devon faced
financial difficulties and bankruptcy proceedings, and that
Devon lacked staff qualified to manage i.v. Station robot
installations.

B. Procedural History

Devon filed suit against DeViedma and McKesson in
August 2009, claiming breach of fiduciary duty, tortious
interference with current and prospective contractual
relations, defamation, and conspiracy. In response,
DeViedma filed a motion to dismiss on two grounds: first,
that the complaint must be dismissed in favor of arbitration,
and second, that Devon failed to state any claim upon which
relief could be granted. The District Court granted the motion
only in part.2 DeViedma did not appeal that order, and
extensive litigation followed. Over the next seventeen
months, the parties expended considerable time and resources
in discovery, producing hundreds of thousands of pages of
documents and taking approximately twenty-six depositions.

DeViedma then filed a motion for summary judgment
on the remaining two claims against him, which were for

2
The District Court dismissed the claims for
conspiracy and tortious interference with prospective
contractual relations but found the others did not arise out of
the agreements containing the arbitration clauses. In addition,
the District Court dismissed claims brought by Appellees
Devon Health Services, Inc. and Dr. John A. Bennett, and the
parties subsequently stipulated to dismissal of the defamation
claims.

5
breach of fiduciary duty and tortious interference with current
contractual relations. He repeated his argument that the
claims against him could only be brought in arbitration in
Switzerland. In the Memorandum and Order that are the
subject of this appeal, the District Court rejected his
arguments in favor of arbitration, but granted summary
judgment on Devon’s tortious interference claim, leaving
only Devon’s breach of fiduciary duty claim. DeViedma then
filed this interlocutory appeal seeking our review of the
District Court’s order holding that Devon’s claims were not
subject to arbitration, and Devon moved to dismiss the appeal
for lack of jurisdiction.

II. Discussion

Devon argues that there are three independent reasons
we lack jurisdiction over this appeal: that the District Court’s
Order denying summary judgment is not appealable under §
16 of the FAA because it is not an order “denying an
application under section 206 of [Title 9] to compel
arbitration,” 9 U.S.C. § 16(a)(1)(C); that DeViedma’s Notice
of Appeal is defective because DeViedma inadvertently cited
to 9 U.S.C. § 16(a)(1)(B) instead of 9 U.S.C. § 16(a)(1)(C);3
and that DeViedma waived his right to compel arbitration
because he opted not to seek an interlocutory appeal of the

3
Subsection (B) of § 16 permits an appeal from an
order “denying a petition under [9 U.S.C. § 4] to order
arbitration to proceed,” whereas Subsection (C) permits an
appeal from an order “denying an application under [9 U.S.C.
§ 206] to compel arbitration.” 9 U.S.C. § 16(a)(1)(B), (C).

6
District Court’s denial of his motion to dismiss and instead
engaged in protracted litigation.4

4
Devon raises this argument as a bar to jurisdiction,
although we have generally treated waiver of the right to
compel arbitration as a merits issue, not a jurisdictional one.
See, e.g., In re Pharmacy Benefit Managers Antitrust Litig.,
700 F.3d 109, 117 (3d Cir. 2012); Gray Holdco, Inc. v.
Cassady, 654 F.3d 444, 451 (3d Cir. 2011).

In addition, Devon argues, on the merits, that
DeViedma cannot compel arbitration because he was not a
party to the contracts containing arbitration clauses—a
contention we note may also bear on jurisdiction, as a party
must allege a “prima facie case of entitlement” to arbitration
in order to obtain interlocutory review under § 16(a) of the
FAA. Ehleiter v. Grapetree Shores, Inc., 482 F.3d 207, 212-
13 (3d Cir. 2007); see also Sourcing Unlimited, Inc. v.
Asimco Int’l, Inc., 526 F.3d 38, 43, 46 (1st Cir. 2008)
(analyzing a party’s status as a non-signatory as both a
jurisdictional and merits issue). DeViedma counters, first,
that he is entitled to arbitration because he was acting at
relevant times as an agent of signatory Health Robotics. See
Pritzker v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 7
F.3d 1110, 1122 (3d Cir. 1993) (“In keeping with the federal
policy favoring arbitration, we . . . will extend the scope of
the arbitration clauses to agents of the party who signed the
agreements.”). Second, he asserts that Devon should be
equitably estopped from avoiding arbitration because its
claims are closely intertwined with the CytoCare contract.
See E.I. DuPont de Nemours & Co. v. Rhone Poulenc Fiber
& Resin Intermediates, S.A.S., 269 F.3d 187, 201-02 (3d Cir.

7
 In such a situation, “there is no mandatory ‘sequencing
of jurisdictional issues,’” and we enjoy “leeway ‘to choose
among threshold grounds for denying audience to a case on
the merits’” in the order that best serves judicial economy.
Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S.
422, 431, 435-36 (2007) (quoting Ruhrgas AG v. Marathon
Oil Co., 526 U.S. 574, 584-85 (1999)). We need not reach
Devon’s alternative arguments because we conclude we lack
jurisdiction under § 16(a)(1)(C), and, therefore, this appeal
must be dismissed.

A. Orders Appealable Under § 16(a)(1)(C)

In the ordinary course, we possess jurisdiction over
only “final decisions of the district courts of the United
States.” 28 U.S.C. § 1291. The FAA, however, provides for
appellate jurisdiction of certain categories of interlocutory
orders, including orders “denying an application under
section 206 . . . to compel arbitration.” 9 U.S.C.
§ 16(a)(1)(C). Devon contends that we lack jurisdiction
under that provision because DeViedma is appealing from not
an order denying an application under § 206 to compel
arbitration but, rather, a motion for summary judgment in
favor of arbitration, and “[t]he denial of a summary judgment
motion is not a final order,” United States v. Spears, 859 F.2d

2001) (collecting cases compelling signatories on basis of
equitable estoppel to arbitrate against non-signatories claims
that were intertwined with contracts containing arbitration
clauses). We have no occasion to address these arguments
because we will dismiss for lack of jurisdiction on other
grounds.

8
284, 286 (3d Cir. 1988) (citing Boeing Co. v. Int’l Union,
United Auto., Aerospace & Agric. Implement Workers of Am.,
370 F.2d 969, 970 (3d Cir. 1967)).

In Harrison v. Nissan Motor Corp., 111 F.3d 343 (3d
Cir. 1996), we identified a similar issue: whether to interpret
§ 16 of the FAA as reaching the denial of a motion to dismiss
in favor of arbitration. See 111 F.3d at 348. We
acknowledged there is some logic to treating a motion to
dismiss in favor of arbitration like a motion to compel
arbitration under § 16, but also posited that “linguistically, a
motion to dismiss, even for failure to pursue the statutorily
provided threshold arbitral remedy, is a far cry from a
‘motion to compel arbitration.’” Id. at 349. Because we
dismissed the appeal for lack of jurisdiction on different
grounds, however, we did not reach the issue. We do reach it
today and conclude that § 16(a)(1)(C) does not extend to
denials of motions for summary judgment.

1. Statutory Text

Our analysis begins with the statutory text. Section 16
of the FAA provides that:

(a) An appeal may be taken from—

(1) an order—

(A) refusing a stay of any action under
section 3 of this title,

(B) denying a petition under section 4
of this title to order arbitration to
proceed,

9
 (C) denying an application under
section 206 of this title to compel
arbitration,

(D) confirming or denying
confirmation of an award or
partial award, or

(E) modifying, correcting, or vacating
an award;

(2) an interlocutory order granting,
continuing, or modifying an injunction
against an arbitration that is subject to
this title; or

(3) a final decision with respect to an
arbitration that is subject to this title.

9 U.S.C. § 16(a). As the Supreme Court instructed in Green
Tree Financial Corp.-Alabama v. Randolph, 531 U.S. 79
(2000), “we apply the ‘plain language of the statutory text’ in
interpreting the FAA.” Lloyd v. HOVENSA, LLC, 369 F.3d
263, 269 (3d Cir. 2004) (quoting Green Tree, 531 U.S. at 88).
“We do not look past the plain meaning unless it produces a
result demonstrably at odds with the intentions of its drafters
or an outcome so bizarre that Congress could not have
intended it.” Mitchell v. Horn, 318 F.3d 523, 535 (3d Cir.
2003) (citations and quotation marks omitted).

Further, the Supreme Court has repeatedly held that
“statutes authorizing appeals are to be strictly construed.”
Office of Senator Mark Dayton v. Hanson, 550 U.S. 511, 515

10
(2007) (quoting Perry Educ. Ass’n v. Perry Local Educators’
Ass’n, 460 U.S. 37, 43 (1983)) (internal quotation marks
omitted). That command carries extra force for statutes
authorizing interlocutory appeals, which are exceptions to the
final decision rule of 28 U.S.C. § 1291 and “the long-
established policy against piecemeal appeals.” Gardner v.
Westinghouse Broad. Co., 437 U.S. 478, 480 (1978). Thus,
“we must construe the scope of the provision with great care
and circumspection” and “approach this statute somewhat
gingerly lest a floodgate be opened that brings into the
exception many pretrial orders.” Kershner v. Mazurkiewicz,
670 F.2d 440, 446-47 (3d Cir. 1982) (quoting Switz. Cheese
Ass’n v. E. Horne’s Mkt., Inc., 385 U.S. 23, 24 (1966))
(internal quotation marks omitted).

Here, the plain language of the FAA provides no
support for exercising jurisdiction over an order denying a
motion for summary judgment. Even when motivated by a
conclusion that claims are not subject to arbitration, an order
denying summary judgment is not an order “denying an
application under section 206 of this title to compel
arbitration.” 9 U.S.C. § 16(a)(1)(C); see Harrison, 111 F.3d
at 349. And under the canon of expressio unius est exclusio
alterius (“the express mention of one thing excludes all
others”), Congress’s enumeration of several categories of
appealable orders, but not orders denying summary judgment,
indicates that Congress intended orders denying summary
judgment to fall outside the scope of § 16. See, e.g.,
Delaware Cnty. v. Fed. Hous. Fin. Agency, 747 F.3d 215, 221
(3d Cir. 2014).

2. Statutory Structure

11
 The structure of the FAA further compels us to read §
16 as excluding orders denying summary judgment. Section
16 is strikingly specific in describing the categories of orders
from which we may hear interlocutory appeals. It names
orders “denying a petition under section 4 of this title to order
arbitration to proceed” and orders “denying an application
under section 206 of this title to compel arbitration.” 9
U.S.C. § 16(a)(1)(B), (C) (emphasis added). These references
to §§ 4 and 206 are telling.

Section 4 outlines a procedure for a party to “petition”
a court for “an order directing that such arbitration proceed,”
not an order granting summary judgment. 9 U.S.C. § 4.
Section 206 similarly provides that a court “may direct that
arbitration be held in accordance with the agreement at any
place therein provided for, whether that place is within or
without the United States”; it does not provide that a court
may grant summary judgment. 9 U.S.C. § 206. Had
Congress defined the categories of appealable orders using
more malleable language—such as “orders denying motions
to compel arbitration,” “orders denying requests to compel
arbitration,” “orders refusing to enforce arbitration
agreements,” or “orders hostile to arbitration”—the argument
for jurisdiction over some orders denying summary judgment
might be stronger. But Congress’s decision to specify denials
of § 4 petitions or § 206 applications indicates that § 16 is not
so elastic.5

5
For simplicity’s sake, we refer in this opinion to § 4
petitions and § 206 applications interchangeably as motions
to compel arbitration.

12
 We conducted a similar analysis of the FAA in Lloyd,
where we considered § 3 of the statute. Section 3 provides
that, upon the application of a party, a district court “shall”
stay proceedings that are referable to arbitration. 9 U.S.C. §
3.6 In Lloyd, we held that a district court lacked discretion to
dismiss, rather than stay, a case under § 3 where the parties
had requested a stay and not a dismissal. 369 F.3d at 269.
After reviewing the text of § 3, we opted to “side with those
courts that take the Congressional text at face value” and
reasoned that the statute’s “directive that the Court ‘shall’
enter a stay simply cannot be read to say that the Court shall
enter a stay in all cases except those in which all claims are
arbitrable and the Court finds dismissal to be the preferable
approach.” Id.

We also analyzed whether exercising jurisdiction was
consistent with the structure of the FAA. We noted the
ongoing role of the district court after sending all of the
claims in a lawsuit to arbitration, including resolving disputes

6
In full, this section states: “If any suit or proceeding
be brought in any of the courts of the United States upon any
issue referable to arbitration under an agreement in writing
for such arbitration, the court in which such suit is pending,
upon being satisfied that the issue involved in such suit or
proceeding is referable to arbitration under such an
agreement, shall on application of one of the parties stay the
trial of the action until such arbitration has been had in
accordance with the terms of the agreement, providing the
applicant for the stay is not in default in proceeding with such
arbitration.” 9 U.S.C. § 3.

13
regarding the appointment of an arbitrator, compelling
witnesses, and entering judgment on an award. Id. at 270
(citing 9 U.S.C. §§ 5, 7, 9-11). If a case were dismissed
rather than stayed, the parties would have to file a new action
each time the court’s assistance was required, and the dispute
could be assigned to different judges over the course of the
arbitration. Id. Furthermore, whereas an order granting a
stay under § 3 is not immediately appealable under 9 U.S.C. §
16(b),7 an order dismissing claims in favor of arbitration is
immediately appealable because it is a final order. Lloyd, 369
F.3d at 270. Consequently, construing § 3 as permitting
district courts to dismiss claims instead of staying them would
have altered the statutory scheme of appeals. Ultimately, we
held that a “literal reading of § 3” was the only reading

7
Section 16(b) provides that:

Except as otherwise provided in section 1292(b) of
title 28, an appeal may not be taken from an interlocutory
order—

(1) granting a stay of any action under section 3 of this
title;
(2) directing arbitration to proceed under section 4 of
this title;
(3) compelling arbitration under section 206 of this
title; or
(4) refusing to enjoin an arbitration that is subject to
this title.

9 U.S.C. § 16(b).

14
consistent with the structure of the FAA and the strong
national policy in favor of arbitration. Id. at 271.

So, too, must we construe § 16 by its plain terms.
Consider the procedures § 4 specifies for § 16 motions to
compel arbitration: A party’s ability to “petition any United
States district court . . . for an order directing that . . .
arbitration proceed” is conditioned on the opposing party’s
“failure, neglect, or refusal . . . to arbitrate,” and the petitioner
must give the opposing party “[f]ive days’ notice in writing”
of the petition. 9 U.S.C. § 4.8 Moreover, the inquiry a district
court is required to undertake in analyzing a motion to
compel arbitration differs significantly from the analysis
required for a motion for summary judgment. As we
explained in Guidotti v. Legal Helpers Debt Resolution, LLC,
716 F.3d 764 (3d Cir. 2013), where “the party opposing
arbitration can demonstrate, by means of citations to the
record, that there is a genuine dispute as to the enforceability
of the arbitration clause, the court may then proceed
summarily to a trial regarding the making of the arbitration
agreement or the failure, neglect, or refusal to perform the
same, as Section 4 of the FAA envisions.” Id. at 776 (internal
citations and quotation marks omitted).

Because of these prescribed procedures, equating a
denial of summary judgment with a denial of a motion to
compel under § 16 could be quite consequential. For

8
Under § 208, the requirements of § 4 apply to § 206
applications as well, provided there is no conflict between the
two provisions. See Control Screening LLC v. Technological
Application & Prod. Co. (Tecapro), HCMC-Viet., 687 F.3d
163, 170-71 (3d Cir. 2012).

15
example, a party trying to enforce an arbitration agreement
but seeking to avoid trial on the issue of arbitrability could
file a motion for summary judgment instead of a § 4 petition
(or § 206 application) and then seek immediate review if the
motion is denied. Even if any concerns about these kinds of
procedural differences would be modest in practice, they
indicate that construing § 16 to open the door to interlocutory
appeals from orders denying motions for summary judgment
is incompatible with the structure of the FAA. Therefore, we
conclude that § 16 “simply cannot be read” to grant us
jurisdiction over orders denying motions for summary
judgment. See Lloyd, 369 F.3d at 269.

B. Our Approach to Applying § 16(a)(1)(C)

That conclusion, however, does not necessarily end
our inquiry, for the question remains whether we should
construe the order denying DeViedma’s motion for summary
judgment as a denial of a motion to compel arbitration. Most
Courts of Appeals have addressed this question only in the
context of motions to dismiss, and they have answered it in a
variety of ways.

At one end of the spectrum, the D.C. Circuit has
adopted a narrow approach to jurisdiction under § 16,
declining to “treat” the defendant’s motion as something
other than a Rule 12(b)(6) motion to dismiss and reasoning
that the “principle of narrow construction . . . counsels against
broad construction of a motion forwarded for review.”
Bombardier Corp. v. Nat’l R.R. Passenger Corp., 333 F.3d
250, 254 (D.C. Cir. 2003). The Bombardier court went on to
explain that “even if [it] were to construe a motion to dismiss
more broadly in some circumstances,” it would not do so
there, primarily because the motion to dismiss “exhibited no

16
intent to pursue arbitration—indeed, it sought outright
dismissal with no guarantee of future arbitration.” Id.; see
also Wabtec Corp. v. Faiveley Transp. Malmo AB, 525 F.3d
135, 140 (2d Cir. 2008) (citing Bombardier, 333 F.3d at 254)
(declining to exercise jurisdiction where a motion to dismiss
did not explicitly or implicitly request the district court to
“direct that arbitration be held” (internal quotation marks
omitted)).

At the other end are the First and Sixth Circuits, which
have adopted a broad approach. Thus, in Fit Tech, Inc. v.
Bally Total Fitness Holding Corp., 374 F.3d 1 (1st Cir. 2004),
the court treated the defendant’s request for dismissal in favor
of arbitration “as encompassing the lesser alternative remedy
of a stay and reference” because “no one ha[d] been
prejudicially misled by [its] request for an over-favorable
remedy of dismissal.” Id. at 6; see also Sourcing Unlimited,
526 F.3d at 46 (“A movant’s choice to request dismissal
rather than a stay of proceedings during referral to arbitration
is within the ambit of § 16(a).”). And the Sixth Circuit has
held simply that § 16 grants appellate jurisdiction over
“refusal[s] to enforce, through dismissal or stay, an agreement
to arbitrate.” Simon v. Pfizer, Inc., 398 F.3d 765, 772 (6th
Cir. 2005); accord Turi v. Main St. Adoption Servs., LLP, 633
F.3d 496, 501 (6th Cir. 2011) (citing Simon, 398 F.3d at 772-
73) (“The district court’s denial of Main Street’s motion to
dismiss, which was based on the parties’ arbitration clause, is
independently reviewable under the Federal Arbitration Act .
. . .”).

The Tenth Circuit, on the other hand, has taken a
functional approach, focusing on the relief requested by a
motion and holding that “in order to invoke the appellate
jurisdiction provided in § 16(a), the defendant in the district

17
court must either move to compel arbitration and stay
litigation explicitly under the FAA, or must make it plainly
apparent that he seeks only the remedies provided for by the
FAA—namely, arbitration rather than any judicial
determination—in his prayer for relief.” Conrad v. Phone
Directories Co., 585 F.3d 1376, 1385 (10th Cir. 2009). The
court in Conrad thus dismissed the appeal because, despite
“mention[ing] that the court might compel arbitration in one
sentence of its memorandum,” the appellant’s motion asked
only for dismissal, not for any relief under the FAA. Id. at
1386. The Fourth Circuit is in accord. See Rota-McLarty v.
Santander Consumer USA, Inc., 700 F.3d 690, 698-99 (4th
Cir. 2012) (articulating an approach focusing on the relief
requested in a motion); see also Grosvenor v. Qwest Corp.,
733 F.3d 990 (10th Cir. 2013) (applying Conrad to an order
granting cross motions for partial summary judgment).

We now join the Tenth and Fourth Circuits in focusing
our § 16(a) inquiry on a movant’s requested relief. While the
analytical approach we adopt here will not turn solely on the
caption of a motion, we have two concerns with looking
much farther. First, construing motions as “petitions under
section 4 of this title to order arbitration to proceed” or
“applications under section 206 of this title to compel
arbitration,” when they are not, has the effect of expanding
the scope of § 16 when our mandate is to construe it
narrowly. See supra at 9-11. Second, jurisdiction over an
appeal “must be determined by focusing upon the category of
order appealed from,” Arthur Andersen LLP v. Carlisle, 556
U.S. 624, 628 (2009) (quoting Behrens v. Pelletier, 516 U.S.
299, 311 (1996)), and in fashioning any rule of appellate
jurisdiction, predictability is paramount, see Jerome B.
Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S.

18
527, 547-48 (1995); Carroll v. United States, 354 U.S. 394,
404-06 (1957) (“Appeal rights cannot depend on the facts of a
particular case. The Congress necessarily has had to draw the
jurisdictional statutes in terms of categories.”). Allowing our
jurisdiction to turn on a case-by-case evaluation of how
central an arbitration clause is to a party’s argument for
dismissal or summary judgment is the antithesis of
predictability. Both of these concerns counsel against
determining jurisdiction based on the contents, rather than the
caption, of a motion.

Nonetheless, we recognize the need for a limited look
beyond the caption itself, both to ensure that a true motion to
compel is not overlooked and to ensure that parties cannot
“‘game’ the captions of their motions in an effort to gain an
interlocutory appeal where none is warranted.” Conrad, 585
F.3d at 1385. We have charted this course before in
construing orders under 28 U.S.C. § 1292(a), which provides
for appellate jurisdiction over certain kinds of interlocutory
appeals, including appeals from orders “granting, continuing,
modifying, refusing or dissolving injunctions, or refusing to
dissolve or modify injunctions.” 28 U.S.C. § 1292(a)(1).9 In
an opinion by then-Judge Alito, dismissing an appeal for lack
of jurisdiction under § 1292(a)(1), we explained that “when
determining our jurisdiction, we must examine the substance

9
The Tenth Circuit found its own analysis of §
1292(a)(1) instructive in developing an analytical approach to
§ 16 of the FAA. See Conrad, 585 F.3d at 1385 (citing
Pimentel & Sons Guitar Makers, Inc. v. Pimentel, 477 F.3d
1151, 1153 (10th Cir. 2007)).

19
of the order rather than merely its language.” U.S. Fire Ins.
Co. v. Asbestospray, Inc., 182 F.3d 201, 207 (3d Cir. 1999)
(citing Cromaglass Corp. v. Ferm, 500 F.2d 601, 604 (3d Cir.
1974) (en banc)). We noted that “the labels attached by the
district court to its order are not determinative,” id. (quoting
Gregory v. Depte, 896 F.2d 31, 38 n.14 (3d Cir. 1990)
(Becker, J., concurring in part and dissenting in part))
(internal quotation mark omitted), and thus looked to the
operative terms of the January 1998 order before us as well as
the underlying motion, which was a “motion seeking
clarification of the original restraining order,” id. at 206. We
then concluded that the order did not modify a June 1997
injunction, but rather, clarified its scope, notwithstanding the
district court’s use of the term “MODIFIED” in its January
1998 order, and that, as such, it was not appealable under §
1292(a)(1). Id. at 207.

Likewise, we hold that to determine whether an order
constitutes an order that is appealable under § 16, we examine
the label and the operative terms of the district court’s order,10

10
We recognize that many, if not most, district court
orders have no label or title besides “ORDER.” Where that is
the case, we will focus on the terms of the order. In
determining jurisdiction under § 16, however, we decline to
conduct an extensive review of a district court’s
accompanying memoranda. See Conrad, 585 F.3d at 1384
(rejecting an approach that “would require courts of appeals
carefully to parse the district court motions and memoranda to
determine, factually, whether the arguments pressed in the
district court sufficiently raised the concerns of the FAA to
deem the motion brought ‘under section 3’ or ‘under section

20
as well as the caption and relief requested in the underlying
motion. An explicit reference to the FAA, namely §§ 3, 4, or
206, in the caption of a motion is not dispositive, although
“those hoping to avail themselves of the immediate appeal
provided for in the FAA would do well” to “caption the[ir]
motion in the district court as one brought under [the] FAA.”
Conrad, 585 F.3d at 1385. We have exercised jurisdiction
where motions are labeled simply—but clearly—“motions to
compel arbitration,” so a party’s failure to cite the governing
provision of the FAA does not necessarily preclude
jurisdiction. See, e.g., Guidotti, 716 F.3d at 770-71 & n.3.
Nor does a district court’s subsequent mislabeling of a
properly-captioned motion to compel arbitration as a motion
to dismiss or for summary judgment always place an order
outside the scope of § 16. Cf. Asbestospray, 182 F.3d at 207
(attributing the district court’s use of the term “MODIFIED”
in its order following a motion to clarify to a “mistake in
draftsmanship”). But if a motion does not at least request an
order compelling arbitration or an order directing that
arbitration proceed, then the denial of that motion is not
appealable under § 16(a)(1)(B) or (C). Mere “offhand
references” to the FAA or to arbitration are not sufficient.
See Conrad, 585 F.3d at 1386.

Importantly, we do not read § 16 as barring
jurisdiction where both a motion to compel arbitration and a

4’”); cf. Arthur Andersen, 556 U.S. at 628-29 (expressing a
preference for determining jurisdiction under § 16 by
focusing on the “category of order appealed from” rather than
engaging in a fact-intensive jurisdictional inquiry).

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motion to dismiss (or a motion for summary judgment) are
made in the alternative. While the FAA does not discuss a
remedy of dismissal, it does not explicitly preclude requests
for multiple forms of relief, and in Guidotti, we exercised
jurisdiction under § 16 where the defendants filed motions to
dismiss simultaneously with their motions to compel
arbitration. See Guidotti, 716 F.3d at 767. Other courts have
also exercised jurisdiction over appeals where defendants
filed motions to compel arbitration or, in the alternative, to
dismiss. See, e.g., Cappuccitti v. DirecTV, Inc., 623 F.3d
1118, 1121 (11th Cir. 2010); Suburban Leisure Ctr., Inc. v.
AMF Bowling Prods., Inc., 468 F.3d 523, 524-25 (8th Cir.
2006); see also Grosvenor, 733 F.3d at 1000 (“Had Qwest
sought an order granting summary judgment on the issue of
contract formation and an order compelling arbitration, there
would be no question as to our jurisdiction.”). However, we
decline to treat a “request for an over-favorable remedy of
dismissal,” Fit Tech, 374 F.3d at 6, as including a request for
an order compelling arbitration. Because the former would
not invoke the statutory requirements of § 4 of the FAA, it
cannot trigger the right to interlocutory appeal under § 16.
Cf. Lloyd, 369 F.3d at 270-71 (analyzing the incompatibility
of the remedy of dismissal and the statutory scheme of the
FAA).

C. Application to DeViedma’s Appeal

Given the analytical framework we adopt today, the
order before us is clearly not appealable under § 16. The
Order provided: “Defendant Gaspar DeViedma’s Motion for
Summary Judgment (Doc. Nos. 81, 82, and 84) is DENIED as
to Count IV for Breach of Fiduciary Duty. The Motion is
otherwise GRANTED.” (App. 3.) It made no reference to a
motion to compel or to the FAA. As for DeViedma’s motion,

22
the motion was entitled, “Motion for Summary Judgment of
Defendant Gaspar DeViedma,” and it began: “Pursuant to
Federal Rule of Civil Procedure 56, defendant Gaspar
DeViedma moves for summary judgment on Counts IV and V
of the First Amended Complaint.” (DeViedma’s Mot. for
Summ. J. 1, ECF No. 81.) It went on to state: “Mr.
DeViedma respectfully requests that this Court enter
summary judgment in its favor and dismiss plaintiffs’ case
with prejudice.” (Id.) In sum, DeViedma’s motion was not
captioned as a motion to compel, did not reference § 4 or §
206, and did not request an order compelling arbitration.
Rather, it was captioned as a motion for summary judgment,
referenced Rule 56, and requested only summary judgment
and dismissal with prejudice.11 Further, there is no indication
that the purported motion to compel complied with the
procedural requirements of § 4. Even if we presumed
Devon’s “failure, neglect, or refusal . . . to arbitrate,” there is
no indication that DeViedma gave Devon “[f]ive days’ notice
in writing” of his impending motion to compel via “[s]ervice .
. . in the manner provided by the Federal Rules of Civil
Procedure.” 9 U.S.C. § 4. Therefore, the motion was clearly

11
Looking at DeViedma’s Memorandum of Law in
support of the motion would not change our conclusion. See
App. 186 (“Pursuant to Fed. R. Civ. P. 56, defendant . . .
moves for summary judgment in his favor . . . .”); App. 189
(“DeViedma is entitled to a dismissal with prejudice of the
claims against him . . . .”); App. 243 (stating in the conclusion
that: “DeViedma is entitled to summary judgment in his favor
on all claims against him . . . , and these claims should be
dismissed with prejudice.”).

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one for summary judgment, not to compel arbitration, and we
lack jurisdiction over the order denying it.

We accept at face value that Devon was on notice
about DeViedma’s preference for arbitration over litigation.
Indeed, Devon acknowledged as much in its opposition to
DeViedma’s summary judgment motion, and the District
Court even remarked, in its Order: “We revisit whether
Devon must be compelled to arbitrate its claims against
DeViedma . . . .” (App. 24.) Thus, no one was “prejudicially
misled” in this case by DeViedma’s styling of his motion as a
motion for summary judgment rather than a motion to
compel. See Fit Tech, 374 F.3d at 6. But our jurisdiction
does not turn on whether the non-moving party was
prejudiced or confused. Rather, it turns on the category of the
order from which an appeal is taken, and we identify that
category by looking to the terms of the order, the caption of
the underlying motion, and the relief requested within.
Because DeViedma filed a motion for summary judgment and
not a motion to compel arbitration, we lack jurisdiction under
§ 16 of the FAA.

III. Conclusion

We conclude that the District Court’s denial of
DeViedma’s Motion for Summary Judgment is not an
appealable order under § 16(a)(1)(C) of the FAA.
Accordingly, we will dismiss this interlocutory appeal for
lack of jurisdiction.

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