### IN THE UNI TED STAT ES COURT OFAPPEALS
FOR THE FIF TH CIRCU IT

No. 11-20676

WEINGARTEN REALTY INVESTORS, a Texas Real Estate Investment Trust Plaintiff-Appellee,

versus STEWART A. MILLER, Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas

Before, DAVIS, SMITH, and PRADO, Circuit Judges. JERRY E. SMITH, Circuit Judge:

The district court denied a motion to comp e l a r bitration. Defendant Stewart Miller appeal e d , a n d t he district court denied his motion for a stay pending appeal. Miller appeals the denial of a stay, and pl a i n t i f f W eingarten Realty Investors (“WRI”) moves for summary affirm a n c e o f the denial of the U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Novembe r 1, 2 011 Lyle W . Cayce Clerk Case: 11-20676 Document: 00511651398 Page: 1 Date Filed: 11/01/2011motion to compel. We conclud e t h a t t h e re is no automatic stay and that

under the circumstances of this case, Miller is not entitl e d t o a stay. The motion for summary affirmance is carried with the case.

I. WRI and Miller Sheriden, LLC (“Miller Sheriden”), created a joint vent u r e , and WRI loaned that joint venture $75,000,000 under the Loan A g r e e ment between WRI and the joint venture. Sect i o n 7

. 2 1 of that agreement provided that any d i s p u te “arising out of, in connection with, or relating to the Note or any of the other Loan Documents or any transaction p rovided for therein

. . . at the request of any party to the Loan Doc u m e nts

. . . be settled by arbitrati o n . . . .” Miller did not sign the Loan Agreement individually but did sign a third-party guarantee (“Limited Guar a n tee”) for the loan, on the

same day the Loan Agree m e n t was executed, in which guarantee he and Miller S h e r i d en guaranteed half of the loan. There is no arbitration clause in the Limited Guarantee, and the Loan Agreeme n t does not list the Limited Guarantee as a Loan Document. The promissory note was amended twice; both agreements refer to “Loan D o c u m e nts” as including the guarantees. The first Loan Modification Agreement restated the maturity date of the l o a n and redefined the “True Principal Balance.” Th e s e c ond Loan Modification Agreement extended the

ma t u r i t y date. When the joint venture did not pay the note on the extended maturity date, WRI unsuccessfully sought payment from the guarantors. WRI sued Mil l e r p u r suant to the Limited Guarantee, and Miller sought arbitration. The district court decided that Miller is not entitle d t o a r b i tration b e c a u s e h e is not a party to any Loan Document. On appeal, Miller

2 Case: 11-20676 Document: 00511651398 Page: 2 Date Filed: 11/01/2011argues that we should stay proceedings in the district cour t until the resolution of his appeal; WRI disagrees. We d e n y the stay, because Miller fails to show a likelihood of winning on the me r its or that the balance of equities tips in his favor.

II. Whether a n a p p e al from a denial of a motion to compel arbitration divests the district court of jurisdiction to pr o c e e d t o the merits is the subject of a circuit split. Th e S e c o n d and Ninth Circuits have held that a stay is not automatic. In Brit t o n , t h e court pointed out that normally, appellate review

1 of a collateral o r d e r does not deprive the district court of jurisdiction to proceed to the merits. The court c i t e d t h e determination in Moses H. Cone Memorial Hospital v. Mercury Construction Corp. , 460 U.S. 1, 21 (1983), that because arbitrability is an issue easily separ a b l e from the merits of the underlying dispute, th e d istrict court could address the merits while the appellate court revi e w e d arbitrability. Additionally, the Britton court noted that an automatic stay would allow litigants to delay resol u t i o n o f the matter by filing frivolous appeals. In the abs e n c e o f a n automatic stay, the district court nonetheless retains the power to determine, on a case-by-case basis, whether p r o c e edings should be stayed until the appeal regarding arbitrability has been resolved. The Seventh Circuit, later joined by the Third, Fourth, Tenth, and Eleventh, has held that a notice of appeal automatically stays p r oceedings in the 2

Motorola Cre dit Corp

. v. Uzan , 388 F.3 d 39, 53-54 (2d Cir. 2004); Bri tton v. Co-Op 1 Banki ng Group , 916 F.2d1405, 1411-12 (9t h Cir

. 1990).
Lev in v. Al ms & As soc s. , Ltd. , 634 F.3d 260, 264-66 (4th Cir. 2011); Ehle ite r v. Gra pe 2 (c ontinued.. .)
3 Case: 11-20676 Document: 00511651398 Page: 3 Date Filed: 11/01/2011d i s t r i c t court. The Seventh Circuit reasoned in Bradford-Scott Data Corp. v .

Ph y s i c i a n Computer Network , 128 F.3d 504 (7th Cir. 1997), that the underlying claims before the district court are not collateral to the issue presente d b y
an appeal, because the appeal is to determ i n e whether the matter should be litigated in the district court at all. The court was worried a b o u t inconsistenthandling of the case by the two courts and was concerned that allowing simult aneous proceedings would defeat the speed and cost benefits parties s e e k from arbitration. Id. at 505. These courts analogize arbitrability appeals to appeals reg a r d i ng double jeopardy, sovereign immunity, and qualified immunity, see id. at 506, reasoning that because a district c o urt cannot proceed past these issues when there are interlocutory appeals , it similarly cannot proceed when arbitrability is appealed. The legal debate turns on Griggs v. Provide n t Co nsumer Discount Co. , 459 U.S. 56 (1982). Although appeals transfer jurisdiction from the d i s trict court to the appellate court concerning “those aspects of t h e c a s e involved in the appeal,” id. at 5 8 , t h e d i s trict court is nonetheless free to adjudicate matters that are not involved in that appeal, see Alice L. v. D u s e k , 4 9 2 F

. 3d 562 (5 t h C i r . 2 007). At issue here is whether the merits of an arbitration claim are an aspect of a denial of an order to compel arbitration. The Ninth Circuit interpreted Griggs narrowly, holding t h a t because answering the question of arbitrability d o e s not determine the merits of the
case, the merits are not an aspect of the c ase that is involved in the appeal on arbitrability. To the contrary, the Seventh Circuit interp r e ted Griggs

(.

.. cont inued) 2 tree Shore s, Inc. , 482 F.3d 207, 215 n.6 (3d Cir. 2007); Mc Cauley v. Hal li burton Ener gy Ser vs ., Inc. , 413 F.3d 1158, 1160-62 (10th Cir. 2005); Bli nco v. Gre en Tree Ser vi ci ng , L L C, 366 F.3d 1249, 1251-52 ( 11th Cir

. 2004).
4 Case: 11-20676 Document: 00511651398 Page: 4 Date Filed: 11/01/2011b r o a dly, holding that because an appeal on arbitrability con cerns whether t h e

case will be heard in the district court at a l l , t he merits in district court are an aspect of the case that is involved in the appeal. The narrower int e r p retation better comports with our precedents and the nature of arbitration. “How broadly a court defines the aspects of the case

on a p p e a l depends on the nature of the appeal.” Alice L. v. Dusek , 492 F.3d 563, 565 (5th Cir. 2007) (per curiam). The facts of Griggs suggest a narrow interpretation is normally appropriate. I n G riggs , a party moved to amend a judgment in the district court a n d then appealed while that motion was pending. The Court was concerned with the simultaneous exercise of jurisdiction by a district court and a court of appeals, because that could lead to both courts’ deciding the same issue

SSin that case, the judgment. Ap p e a l s d e p rive the district court of jurisdiction, solving this problem. The key is that both courts would be simultan e o u s l y trying to answer the same question: whether the judgment was v a l i d

. Therefore, an issue in th e d i s t r i c t court is only an “aspect[] of the case involved in the appeal” if the appeal and the claims before the district court address the same legal question. O u r precedents support this reading. In Alaska Electrical Pensio n Fund v. Flowserve Corp. , 572 F.3d 221 (5th Cir. 2009), we dete r m ined that a district court maintained jurisd i c tion to enter summary judgment on Securities Act claims for lack of loss causation w h i l e a denial of class certification for lack of loss causation was being appealed. Even though t h e d i s t r ict court

was hearing an is s ue that was “practically identical” to that on appeal, it could proceed because, as a matter of law, the findings on class certification would not resolve the merits issue. Id. at 233.

5 Case: 11-20676 Document: 00511651398 Page: 5 Date Filed: 11/01/2011An appeal o f a d e nial of a motion to compel arbitration does not involve

the merits of the clai m s pending in the district court. The Supreme Court made it plain in Moses H. Co n e , 4 6 0 U

. S. at 21, that the merits were “easily severable” from the d i s p u t e o ver the arbitrability of those claims. The Court thus declared that because of that severability, the issue of arbitrability could be litigated in fede r a l c o u r t while the merits were determined in state court. Id. An issue is generally a n a s pect of the case on appeal if it results in the district court’s dec i ding an issue that the appellate court is deciding at the

same time. By this reasoning, the merits are not an aspect of arbi t r a b i l ity. A determination on the arbitrability of a claim has an impact o n what arbiter

SS judge or arbitrator

SSwill decide the merits, but that determinati o n does not itself decide the merits. Although the majo r ity viewpoint accurately recognizes that certain legal issues

SS dou ble jeopardy, sovereign immunity, and qualified immunity

SS call for a broader reading of the G r ig gs jurisdictional transfer, arbitration agreements are distinguishable. In support of its broad reading of Griggs , the majority courts have analogized arbitrability to the above-stated issues. Each of those issues, however, is distinct from arbitration in meaningful ways. First, double jeopardy and sovereign immunity are protections conf e r red by the Constitution and that courts

SS quite reasonably

SS see as dif f e r ent in character from rights fixed by private contracts. Moreover, the Consti- 3

See Digi tal Equip

. Corp

. v. Des ktop Direc t, Inc. , 511 U. S. 863, 878 (1994) (“When a pol- 3 icy is embodied in a const itut io n a l o r statut ory pr ovision entitling a party to immunity fr om suit (a rar e for m o f protec tion), ther e is little room for the judic iary to gainsay its ‘importanc e.’”)

. Though this app eal is taken under § 16(a)( 1) of the Federal Arbit rat ion Act , the sc ope of the agreement regar ding what i ss ues are arbitr able is st ill det ermined just by agreement of the parties. The Act merely allows parties to cont rac t for arbitr ation and have their cont rac t enforc ed; it does not “ent itl[e] a party to immunity fr om suit. ” Digi tal Equip

. , 511 U. S. at 878.
6 Case: 11-20676 Document: 00511651398 Page: 6 Date Filed: 11/01/2011tution entitles a party to be free from the b u r d e n o f litigation when protected

by the Double Jeopardy Clause or sovereign immunity. Qualified immunity 4 5 represents a determinatio n that “the public interest may be better served by action taken with independence and without f e a r o f consequences” and thus 6 has been declared to be “an entitle m e n t n o t to stand trial or face the other burdens of lit i g a t i o n . . . . The entitlement is an immunity from suit

. . . .” 7 There is no p u b l ic policy favoring arbitration agreements that is as powerful

a s that public interest in freeing officials from the fear of unwarranted litiga

tion. Therefore, qualified immunity, like double jeopardy and sovereign immunity, is not a sufficient analog.

III. Even given, as we have decided, that there i s n o automatic stay, the district court had the discretion to grant o n e . Those who take the minority position can find solace in C.B.S. Employees Federal Credit Union v. Donaldson , 716 F. Supp. 307 (W.D. Tenn

. 1 9 8 9 ) , for the premise that, to determine wh e t h e r a discretionary stay should be granted, a district court should use the four-factor test in Hilton v. Braunskill , 481 U.S. 770 (19 8 6): “‘(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irrepara b l y injured absent a stay; (3) whether issuance of the stay will substantially i n j u r e other parties

Abney v. U

nite d Sta te s , 431 U. S. 651 ( 1977). 4
Al den v. Ma ine , 527 U. S. 706 (1999) (h o l di n g th at fr eedom fr om suit in any cour t is 5 part of the dignity inherentin s tat es as sovereigns)

. Har low v. Fi tzge ra ld , 457 U. S. 800 ( 1982) (internal quot ation marks omitt ed). 6
Mi tc hel l v. Fors

yth , 472 U. S. 511, 526 (1985). 7
7 Case: 11-20676 Document: 00511651398 Page: 7 Date Filed: 11/01/2011interested in the proceedings; and (4) [whether] public interest [favors a

stay].’” 8 M i l l e r argues that a finding that he is likely to succeed on the meri t s i s not necessary if the balance of the equities is strongly in his favor, citing W a s hington Metropolitan Area Transit Commission , 559 F.2d 841 (D.C. Cir

. 19 7 7 )

. O ur caselaw, however, is to the contrary In Wildmon v. Berwick Univ e rsal Pictures , 983 F.2d 21, 23 (5th Cir. 1992) (per curiam), this court det e r mined th a t the four-factor test from Baylor must be fully applied except where there is a serious legal question involved and the balance of equities heavily favors a stay; in those situations, the movant only needs to present a substantial case on the m e rits. Because this is merely a private contractual matter regarding whether arbitration is required, see i d

. at 25, no substantial legal question is involved. 9

A. As a preliminary m a tter, WRI’s argument that Miller has conceded the first prongSSlikelihood of success on the merits

SSis unavailing. Miller recognizes he is at a disadvantage because the district court has already ruled against him, but still he maintained, in his district court m o t i o n for a stay, that, “[a]s stated above and set forth in detail in Mr. Miller’s Motion to Compel Arbitration and Reply in Support of his Motion to Compe l Ar b i t r a tion

. . . M r . M i l l er’s arguments

. . . are substantial, meritorious and supported by

C.B. S. Emp loyee s , 716 F. Sup p. at 309 (quoting Hil ton , 481 U. S. at 776); ac cor d Uni te d 8 Stat esv . Ba

ylor Uni v. Me d. Ctr

. , 711 F.2d38, 39 (5th Cir1983). Cf. Baylor , 711 F.2dat 40 , in which the question concer ning Medicare and Medicaid 9 paym ents could have had a broad impac t on relatio ns between the st ates and the feder al government

. 8 Case: 11-20676 Document: 00511651398 Page: 8 Date Filed: 11/01/2011Fifth Circuit case law.” In the referenced s e c t ion, Miller provided three reasons why he was properly entitled to arbitration. This matter is contractually governed by t h e law of Colorado. Miller argues that the L imited Guarantee should be read as a Loan Document b e c a u s e the Limited Guarantee and the Loan Agreement pertain to the sam e transaction. This interpretive principle “has particular force where the ini-

1 0 tial document requires execution of another t o a c c o mplish the purpose of the first” or when one party’ rights depend on interpreting a series of transactions between other entities. E. Ridge of Fort Collins, LLC v. Larimer & Weld Irrigation Co. , 109 P.3d 969, 975 (Colo. 2005). The Limited Guara n t e e and Loan Agreement pert a in to the same transaction, so it is best to read them together. Such a reading, however, does not demonstrate that the arbitration provision was intended to cover the Limited Guarantee. There is no amb i g u i t y in th e m a t erials that the Loan Agreement defined as Loan Documents. The list appears exhaustive, and because the Limited Guarantee was executed the

same day, it is unlikely the parties would forget about it when listing the docum e nts covered by “Loan Documents,” when that word had such import throughout the contract. Although the two ame n d m e n ts to the Loan Agreement describe “Loan Documents” as including the Limi ted Guarantee, those recitals are not “s t r i c tly part of the contract [and] cannot extend contractual stipulations

In re Ap pl ic ati on for Wa te r Ri

ghts of the Town of Est es Park v. N. Colo. Wa te r Conse r- 1 0
va ncy Dis t. , 677 P.2d 320, 327 (Colo. 1984) (“ [S ]epar ate inst rum ents thatp ert ain to the same tr ansact ion should be read together even though they do not expr essly ref er to each other, and even though they are not exec uted by t he same parties. ”)

. 9 Case: 11-20676 Document: 00511651398 Page: 9 Date Filed: 11/01/2011. . . .” The r e f o r e , even though the recitals of the subsequent amendments 1 1 refer to th e Limited Guarantee as a Loan Document, it cannot extend the arbitration clause ’ s c o verage in the original Loan Agreement. The amendments plainly state when the portions of the L o a n Agreement the parties have cho s e n to amend begin to be described, and this occurs after the Recital describing Loan Documents. The Limited Guarantee c annot be considered a Loan Document. Miller further argues that the arbitration pr o v i s i on of the Loan Agreement covers the Limited Guarantee even if the Limited Guara n tee is not a Loan Document, because the arbitration c l a u s e, ¶ 7.21 of the Loan Agreement, applies to “any controversy, dispute or claim arising o u t o f, in connection with, or relating to the No t e o r a n y o f the other Loan Documents or any transaction provided for therein.” Reading all aspects of t h e L i m i ted Guarantee as a transaction provided for in the Loan A g r e e m e n t is too broad, however. Miller references three w a y s i n which the Limited Guarantee is implicated in the Loan Agreement: (1) The Limited Gu a r a n t e e had to be executed before the loan was funded; (2) the Loan Agreement required v a r i o u s repre- 1 2 sentations and warranties be made regarding the Limited Guarantee ; a n d 13

Engine ered Dat a Prods ., Inc. v. Nova Off ic e Furni ture, Inc. , 849 F. Sup p. 1412, 1417 1 1 (D. Colo. 1994) (c iting L as Animas Consol. Cana l Co. v. Hinde rl ide r , 68 P.2d 546, 566 (Colo. 1937). Loan Agr eement ¶ 2.1(b)(9)

.

1 2
Miller pr ovides nine warr anties/r epr e se n tat ions: (1) Guarant ors had power and 1 3 authority to enter into the Guarant ee, id. ¶ 5.4; (2) comp lying with the Loan Document s will not violate other agreements of the Borr ower or Guarant ors, id., ¶ 5.5; (3) Guarant ies are valid and were validly executed , id. ¶ 5.6; (4) Guarant ors have filed all required tax ret urns and paid required taxes, id. ¶ 5.8; (5) There are no suits that would materially adver sely affec t Guaran- (c ontinued.. .)
10 Case: 11-20676 Document: 00511651398 Page: 10 Date Filed: 11/01/2011(3) the Guarantor’s failure to “perform, observe o r comply with any of the

terms, covenants, conditions or provisions of the Guaranti e s ” is an event of default. But none of t h e s e h a s anything to do with a transaction in which

1 4 the Guarantors are a s k e d to pay their portion of the Note after the joint venture defaults. Numbers (1) and (2) i n t he list above deal with the requirements for having a proper Guarantor. Once a proper Guarantor is found and guarantees the Note, those tr a n s actions that the Loan Agreement provided for are complete. Number (3) above does not a p p ly, because the Note is already in default, and no transaction has occurred in w h i c h t he Guarantor has brought the Note i n t o d efault. Thus, none of the transactions at issue in the Loan Agreement has occurred. Instead, the Guarantors were merely asked to pay as they contracted to do solely in the Limited Guarantee. Finally, Miller argues that the doctrine of equitable estoppel applies to prevent WRI from avoiding arbitration on accou n t of Miller’s being a nonsignatory to the Loan Agreement. We review for abuse of disc r e t ion the denial of a motion to compel bas e d on estoppel. Grigson , 210 F.3d 524 (5th Cir. 2000). An a r bitration agreement can be invoked by a non-signatory only in “rare c i r c u mstances.” Westmoreland v. Sadoux , 299 F.3d 462, 465 (5th Cir. 2002). That can happen when the signatory to a written agreement containing an arbitra-

(.

.. cont inued) 1 3 tors, id. ¶ 5.9; (6) No Guarant or is in default on any ord er, writ , etc ., that would material l y adver sely affec t Guarant or, id. ¶ 5.11; (7) Guarant ors have satis fied all legal requirement s for the pr o pe rty on which const ruc tion will occ ur, id. ¶ 5.12; (8) No Guarant or is bound by any rest ric tions that would materially affec t business, id. ¶ 5.17; and (9) no Guarant or has act ual knowledge of a fac t thatadv ersely affec ts business, id. ¶ 5.20.

Id. ¶ 6.1(u). 1 4
11 Case: 11-20676 Document: 00511651398 Page: 11 Date Filed: 11/01/2011tion clause must rely on the terms of the written agreeme nt in

asserting its claims against the nonsignatory. When each of the signatory’s claims against a nonsignator y m a k es reference to or presumes the e x i s t ence of the written agreement, the signatory’s claims arise out of and relate directly to the written agreement, and arbitration is appropriate. Grigson v. Creative Artists Agency , LLC, 210 F.3d 524, 527 (5th Cir. 20 0 0) (emphasis an d citations omitted). This is based on the notion of fairness, that

a signatory “cannot, on the one hand, seek to hold the no n - s i g natory liable pursuant to duties imposed by the agreement, which contains an arbitration
p rovision, but, on the other hand, deny the arbitration’s applicability be c a u s e the defendant is a non-signatory.” Id. at 528. Miller contends that WRI’s claims depend on the L o a n Agreement, because Guarantors must pay when the Debtor does not perform the Guaranteed Obligations, so it is necessary to determ i n e , u n der the Loan 1 5 Agreement, when the Guaranteed Obligations have not been fulfilled. The Limited Guarantee is ex p l i c i t , however, that whenever any Guaranteed Obligation remains unpaid, it is not necessary t h a t WRI demand payment first from the Debto r , s e e k the benefits of any security for the Guaranteed Obligations, or even provide any n o t i c e of dishonor beyond the obligation’s being

u n p a i d when due. This strongly suggests the parties intended the Limi t e d 1 6 Guarantee to require payment separat e f r o m any evaluation of the Loan Agreement

. Thus, despite the fact that the Limited Guarantee was executed contemporaneously, the district court did not abuse its discretion in co n cluding that the Limited Guarante e i s not so intertwined with and dependent on

Id. ¶ 7. 1 5
Id. ¶ 4. 1 6
12 Case: 11-20676 Document: 00511651398 Page: 12 Date Filed: 11/01/2011the distribution agreement that arbitration should be compelled un d e r the

exceptional principle of equitable estoppel. 1 7

B. T h e s e c ond factor is whether Miller will suffer irreparable injury with

ou t a stay. The only grounds for irreparable injury proffered by Miller are that he will “be required to incur the time and expense of litigation and may lose the benefits of arbitration.” He cites sev e r a l d i s t rict court decisions that

reason that becau s e speed and cost savings are the primary purpose of arbitration, forcing him t o litigate the case when it may be sent to arbitration later by the appellate court defeats the entire point of arbitration. 1 8 For the reasons previ o usly discussed, we reject the idea that arbitration

e nsures substantial speed and cost savings, so these considerations alone d o

n o t constitute irreparable injury. Thus, the lack of an argued irr e p a r a b l e 1 9 injury weighs against Miller.

C. The thi r d f

actor is whether substantial injury will result to the other

See, e. g. , IT

T Har tford Lif

e & Annuity Ins. Co. v. Ame ri sha re Inve st ors, Inc. , 133 F.3d 1 7 664 (8t h Cir

. 1998); Gri gson , 210 F.3dat527.
Tref ny v. Bea r Ste ar ns Sec

. Corp

. , 2 4 3 B.R. 300, 309-10 (S

. D. Tex 1999); C.B. S 1 8 Emp loyee s , 716 F. Sup p. at 310; Alas con, Inc. v. IT T N. Ele c. Co. , 727 F.2d 1419, 1422 (9t h Cir. 1984).
In Tref

ny , 243 B.R. at 309, the cour t included the additional argum e n t th a t B e a r 1 9 St earns would have been for ced to engage in disc overy absent a st ay, which would cause irr eparable injury because suc h disc overy could jeopardize its right to a rb i tra te

. That, with the pot ential cost incr eases, may be an irr eparable injury, partic ularly where parties con tra cted forarbitr ation to limit disc overy of s ensitive infor mation, but itwas ne ver mentioned in Miller’s briefing t o this c ourtand is therefor e waived. F E D

. R. AP P

. P. 28(a)( 9)(A ).
13 Case: 11-20676 Document: 00511651398 Page: 13 Date Filed: 11/01/2011parties if a stay is granted. The only potential injury faced by WRI is delay in

vindication of its c l aim. WRI recognizes in its brief that that harm is “perhaps not critical;” it never argues a stay will cause it d i fficulties in presenting its case. This factor weighs in favor of Miller.

D. The fourth factor is whether the public interest favors a stay. Miller argues that ther e is a public policy of efficient allocation of judicial resources. Such a policy might favor staying district court proceeding s w h e r e a difficult question is presented on appeal, because the district court’s order could be overturned. But M i l l e r d o e s not present a likelihood of success on the merits,

so there is little reason to invoke the general public policy of preserving judicial resources from the risk of reversal. Rath e r , the public interest in speedy resolution of disputes prevails. Public interest favors denying the stay.

E. We have considere d t he relevant factors. Because Miller had failed to show a likelihood of success on the merits rega r d i n g whether arbitration is

r e q u i r e d , and the balance of the equities does not support a stay, the distri c t court correctly denied Miller’s motion to stay the proceedings pending resolution of his appeal of the denial of his motion to compel arbitration.

IV. WRI moves for summary affirman c e . Al t h ough the notice of appeal is “from an Order Denying Arbitration entered in this action o n t h e 12th day of September, 2011,” the q u e s t ion of arbitrability is best determined after full

14 Case: 11-20676 Document: 00511651398 Page: 14 Date Filed: 11/01/2011submission to a m e r i t s p anel instead of being decided by this motions panel.

The mot i on for summary affirmance is accordingly CARRIED WITH THE CASE. The motion for stay pending appeal is DENIED.

15 Case: 11-20676 Document: 00511651398 Page: 15 Date Filed: 11/01/2011