may please the court carry shockley of the tennessee bar for the appellate pilot we've asked reserve three minutes for our rebuttal dispositive question presented by this appeal is did the district court err in refusing to cede authority to an arbitrator to determine threshold issues of arbitron military that are delegated to the arbitrator under the undisputed arbitration clauses in the record three thousand nine hundred and forty five  we believe that under henry schein versus white in archer from earlier this year and ran a center west versus jackson from two thousand and ten answers yes and that these cases must be compelled arbitration or dismissed without prejudice there is of course a preliminary question of appellate jurisdiction in this case we believe that the federal arbitration act section sixteen a one b allows an immediate appeal from an order denying a petition to enforce an arbitration agreement the cases of this court make it clear that we look to the substance of the district court's order in the district courts action to determine appeal ability you're not arguing that the biden order to what i'm on the the house keeping order i think one of you in your body or your honor we are arguing that either one of those orders would be sufficient and certainly read together make it clear that what the district court was doing was refusing to honor the delegation clauses here because of her mistaken belief that she had an existence dispute before her and i thought in your home that you can see that the housekeeping order did not see authority over a threshold issue of arbitrary billet that is clearly an unmistakable he delegated to the arbitrator now she did that under the mistaken belief that she had before her an existence dispute when when that is vote could you a put that the rest of providing the the agreements with the dates on there and simple to have the issue disposed of that way instead of it's an attractive solution unfortunately your honor there are two there are two separate problems with that for my client the st is that providing discovery can constitute a waiver of our right to arbitrate and the the nd issue is on the record before the court again there are three thousand nine hundred and forty five members left all of it and as established in the philips declaration and the big show declaration all of whom have signed arbitration agreements but the court said i mean it comes down to the courts the men in the order that it thinks that this motion to compel goes to whether the they signed the agreements or not write it on the face of the or i'm just reading the words of the order she says this goes to whether they sign the agreements or not right she says it goes to when they signed the agreements because that that is the statement she's based on statement in a brief but that would be when they signed the agreement meaning they're not covered by the agreement right presumably that's their argument now again it isn't but you would agree though that that's a only this is footnote in right of center of the footnote in book everybody is saying there's some met a threshold issue that does not go to arbitration all right i am not bound by this agreement it is correct your honor there is under section  if there is a jew and ran a center and buckeye if there is a genuine well they don't resolve it they weave it i mean they leave it open but if there is a genuine existence and the classic example that is in a nursing home case if there is a question that the patient lacked mental capacity to agree to arbitration those are cases that get resolved every day that's simply not what is presented by the record that was before a judge lippman what we have on the record before  judge lippman is again to sworn declarations on behalf of pilot explaining that every employee beginning in april of two thousand and fourteen has to sign before they can clock in which of course is the complaint here that they're working off the clock there is no sworn declaration that any one of these three thousand nine hundred and forty five arbitration opt in and didn't sign that what there is is a statement from counsel that says certain individuals have told me that they think the date given for their arbitration agreement was before they started work well in the st place that's a non sequitur because they're all given before they start work that's explained you have to sign all of the paperwork and this is part of it before they start work but secondly that's how far behind what's going on are we supposed to work i mean if the judge says look it's a motion to compel so no really it wouldn't be appealable right and we would normally review it for abuse of discretion if you even if it was and the judge says look this goes to whether they signed it i mean it says will resolve a dispute as to whether or not individuals have signed the agreement to arbitrate in the st place whether they signed it in the st place that is one of those questions that doesn't go to arbitration so what i mean at this point what are we supposed to do that we don't have jurisdiction right well we believe you did your honor and here's why because no one in this record as said they did not sign there is a statement in a paragraph  a problem here want to turn over to base turn over the agreements with the dates and then proceed or object at that time after we know if we've got up or trouble honor and it is unusual procedurally but what has happened here is one we risk waiver and two we are being denied the benefits of arbitration that all the parties agree to and that is that dream it specifically provides that discovery is to be overseen by the arbitrator and questions of threshold arbiter ability like temporal scope on this question in other words the district or believes there are at least the some people who did not sign these agreements and all of the district courts ask you if you provide the dates of when these people started to the other side so they can figure that out that seems to be something that you're asking us to dive behind and figure out when and if that seems i mean perfectly within the district court's province to try and figure this out your honor i will disagree on one point factually if i may phillips  with declarations in the record that all three thousand nine hundred and forty five signed these agreements and the procedure that was in place each one of them has been produced over eleven thousand pages and there are the date of signing that's on there what the judge has said is that some people say oh i hadn't started work yet when they say i signed it it is that's sort of a better or worse the district court bought that you may be right maybe the district courts completely off the reservation why not just provide these dates and then you can as judge course as you can get to the threshold question but because your honor the federal arbitration acts as if the parties have agreed that validity enforceability interpretation disputes or be decided by the arbitrator and that any discovery disputes related to those issues are to be decided by the arbitrator when the agreement itself is what they're contesting some of them if you want to i don't believe that's borne out by the record i don't believe that's what they say and again if what the district court bought for better or worse isn't that what the district court thought that the district court thought she had in existence dispute that is correct and if she has an existence dispute and she says you the point of can have of discovery i don't you have to provide it if if if she were correct on the record before the court that there was a genuine existence of this is our problem is what it sounds like to me and tell me where i'm wrong is that what you're asking us to do is figure that out which we don't have jurisdiction to do i don't believe that's the case shot or i believe it is apparent on the record as it was in milan express that the court has simply erred in characterizing the dispute that's before her as one over which she has jurisdiction when in fact under in a center in the delegation clause if she does not and i see my time has expired i'm happy to answer any additional questions in my  contract formation and let me highlight one important fact in this case the vast majority of the elect of the arbitration agreements in this case were according to defendants affidavits electronically signed so this isn't depen on a piece of paper this is the click of a mouse and that's the discovery that this these dates from plymouth is targeted at who clicked the originally they were it was about equitable tolling is wrong they were always referenced with respect to equitable tolling as well as the formation of the arbitration agreements so now it's about formation and now you're saying you have clients who are saying flat out i did not sign this agreement correct absolutely and though they have my name on a document but that's it's akin to somebody for doing my signature we have clients who are saying that but i would remind the many that guy how many clients i don't believe that's in the record it was clients plural but i would i would remind the court in addition of course that's one way to fail at contract formation but it's the appellant's here the bear the burden of proof and so all of these issues of contract formation are for the court offer acceptance consideration and until that is proven this case cannot be sent to arbitration and what the district court did here just of course i went back and looked at there but no and  on the housekeeping order why doesn't that confer jurisdiction in other words the district court denied it l b it without prejudice but by my count six circuits have said about disputing the proposition that a denial of a motion to compel a british without prejudice can be appealable doesn't matter if it's with prejudice or without prejudice i'm not familiar with another case that deals with this precise factual scenario with this house keeping his shoe what i would merely all the circuits of bray in the rd circuit maybe says it best that denying a motion is all that has to happen and so even in a ministerial sense and i agree with you the biden order my correct  i would just go back to what i said that at a certain point an order becomes so ministerial that it just does not fall within the intent of congress but let me let me let me can let me concede this is a group of st impression well they're asking for sort of an in by an inch in by a mile rule here that would allow the door to be cracked open let's just say by this biden order and now we're going to review everything that's and i can i ask you a separate question which is in footnote ten of their reply brief they say independently of the biden order does not create jurisdiction they say when coupled and that's the same argument that counsel made here would that be enough to say they waive this argument because they're saying it functionally does but not that it actually does that's the way i read it at least i think it would be it and i would just go back to what i was suggesting earlier which is it doesn't matter let's assume that order is affirmed rather than that right missing because that's not what happened in those cases right in the other cases well but the other cases if i'm understanding the other cases that you refer to they'd denied a motion compel arbitration albeit without prejudice but on more substantial grounds right maybe they wanted to consider a different motion st you know it was perhaps procedural but it was on different grounds in all of those cases if i'm reading the cases correctly the court of appeals do a full dress consideration of the motion on substantive grounds even though the court even though the district court hasn't even weighed in on it and that's essentially what the pellets are asking for here right we've got a motion to compel arbitration that was filed  district court the plaintiffs have not responded substantively that motion the district court hasn't ruled on it substantively and yet we have an extraordinary request for this court essentially to pass on the subset of arguments in the st instance before the district court is even has a chance to weigh in so whether that's characterized as there is no appellate jurisdiction or it's beyond the scope of the appellate jurisdiction it all leads back to the same place i'd like to turn briefly to really the procedural and merits questions raised in this case the delegation based arguments that appellant seek to raise here are super waived they were raised for the st time in a motion to reconsider th denial of plaintiff's motion to compel discovery and i'm not going to repeat that sentence but it's hard to imagine something that would be more waived or reviewed more deferentially than an argument that was raised in the st time in a motion to reconsider this circuit's law is clear that unless those sorts of arguments are raised principally either in an affirmative motion or in a response which was not the case here but those arguments are whipped turning to the merits eighteen was that before the settlement that was or they produced the arbitration agreements and discovery it was right around the same time i think the settlement was ongoing i don't believe the settlement had been finally approved at that time it was a matter of weeks it by my recollection where the motion to compel was going to the arbitration issue yes crystal clear it was only it was raised both independent both both didn't mean to jump in on you on your question the motion specifically raised arbitration and for the pellets they raised one arbitration related defense in their opposition two weeks later they said district court you can't compel this arbitration but i'm sorry you can't compel this production because you don't have subject matter jurisdiction so they made that argument it's not a correct argument it doesn't go arbitration doesn't go to the courts subject matter motion to compel arbitration been sitting at why was it sitting out there when once they produce the agreements why wasn't this why didn't this thing just go to arbitration like why me can that what are the can and can the district court hold on to a motion to compel arbitration and then decide other kind of house cleaning matters before getting around to it or at some point you have to send it to arbitration or i think there are limits to a district court's discretion and certainly the district court could say hypothetically i'm just going to hang on to this while we proceed to full merits discovery and trial that would functionally a bridge you know the rights protected by the f a a but that's not at all what the district court was that what if that scenario happened and there was a motion filed and the the party that moved to compel arbitrations as they wait a minute this motion is the exact thing that has to go to arbitration and what are they supposed to do at that point make the argument in response which is precisely what appellants failed to do here but if they lose it then what happens and then you're sitting on the motion to compel arbitration what's their remedy just wait till the end of the case no you wait until the motion to  it's not the end of the case but if the motion to compel arbitration is decided and it in fact goes to arbitration they can't unring the bell and then say will give me back the dates that we produced right i mean you can't once they produce these dates to you i i don't know why they won't produce the dates to you it seems a little bit odd to me but assume they have some argument for it and they don't want to waive something i'm not sure what it is but ok what are they supposed to do that they can't unring the bell once they're compelled to do that that's true they can't unring the bell but congress made the bell on renewable so to speak with respect to orders denying motions to compel arbitration congress did not extend that rare interlocutory right to all orders that touch on arbitration and specifically to existed between these people particularly where we have this new fangled electronic click system this is not the sort of thing on the an issue for which appellants bear the burden of proof where you can simply take a corporate corporate declaration at face value the the federal arbitration act is very clear that when the making of an arbitration agreement is in issue the party opposing arbitration is entitled to a trial by jury on that question and courts have interpreted the a to to also provide for reasonable discovery to to to fulfill that obligation so you're absolutely right that would be a bell that could be on wrong but that's just remedy congress didn't go so far as to provide parties  a way out of every single possible case management and remedial order that a court might marry in visioning this or maybe no side proceeding better separate proceeding that's going to involve the formation of these contracts yes without it it's not a side proceeding it's just we're putting them to their burden of proof they have to show that that existed and agreement to arbitrate exist with these people and you're talking about offer that's the reason to do this cover this is a cart and horse type conversation without the discovery you know all we have is some plaintiffs who are saying hey look at this electronically generated signature i have no memory of this i wasn't even in the picture with this employer at that time but it had if the if statement if the arbitration agreement says the that formation issues are to be arbitrated what don't most of those things go to formation or are you saying they're all of the character that are carved out by the footnotes and run a center and i'm not sure i understand the question precisely because i understand formation to be precisely what was carved out by rent a center and buckeye it's i've thought about this i'm always cautious to make to avoid making categorical statements in oral argument but i just simply do not see how it's logically possible for a single document a single instrument to simultaneously bootstrap its way to arbiter billeted of the formation of that very document as as you suggest a judge now banned and there has to be some met at the threshold issue that simply can't be delegated away and the district court has to do something to satisfy itself that this case belongs in arbitration and that's all that the district court was trying to do here and as the th circuit suggested in the van dusen case in order to get there it is logical indeed indeed preferable for the district court to establish a dispute resolution system and it has to be resolution system that's in accord with the text of the federal arbitration act that specifically provides for these procedures when the making of an arbitration cla is the case that never happened i don't believe the record speaks directly to that i would be speculating i would assume that that these documents were available but in most employment cases once an employee has moved and i see my time is up but i'll just try to address this question the documents themselves themselves that appellant's claim are the arbitration agreements were produced in discovery that's it we have that d and we have corporate declarations that say these are them they're what would it suggest your honor if the date on the contract is completely mismatched from the independent dates that show the time period where the employer or the employee worked it would suggest that there might be some problem with the dates and that may be the reason why this simple discovery request is i mean presumably if you don't contest that they've asserted they've met their burden then there wouldn't be other other proof in the record i think the court for its time asked the court to dismiss the case for once a jurisdiction to the extent this court has jurisdiction to affirm that is your court's interlock atory orders was a handful of points your honor with respect to electronic signatures of course electronic signatures are valid under federal law and most state laws the national agreement has been in place since april of two thousand and twelve covers the entire class period and the texas agreement is actually hand signed since august st of two thousand and fourteen there is as the court is aware not a single declaration or even a direct statement in the record where someone says i didn't sign one at all there are in fact two declarations to the contrary from my client which we believe is sufficient to satisfy our burden of proof just as in the modeline express case with respect to scope of review if the court has jurisdiction appellate jurisdiction under sixteen a one b as we believe it does in all of your cases that that's a dyno vote review in this case with respect to waiver i believe the court has this point the original motion to compel was filed before the settlement was filed on june th of two thousand and eighteen it argued they needed dates of employment with respect to settlement with respect to a class of five thousand at that time damages an equitable told and there was no argument regarding the arbitration at that point in time when we responded it was only the notice there is no waiver when the district court has ruled on the arguments but whoa that are being made in this court and that certainly is the case here so for all of those reasons your honor we respectfully request that the court take jurisdiction and that the court reversed the district court's order in this case and remained with instructions to dismiss as to those plaintiffs within the western district of tennessee and as to those outside with the court lacks authority that those be dismissed without prejudice thank you very much