NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 13

- 3819

_____________ SUPERMEDIA, f/k/a Idearc Medi a LLC f/k/a Idearc Media Corp.

f /k/a Verizon Directories Corp.

v. AFFORDABLE ELECTRIC , INC.

District Court No. 2

- 12

- cv - 02329

_____________ SUPERMEDIA, f/k/a Idearc Medi a LLC f/k/a Idearc Media Corp.

f /k/a Verizon Directories Corp.

v. MARTIN MORLEY, an Individual

District Court No. 2

- 13

- cv - 00176
Affordable Electric Inc.; Martin Morley, Appellants

_______________ On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Nos. 2

- 12

- cv - 0 232 9 and 2

- 13

- cv - 00 176) District Judge: Hon o rable Stewart Dalzell

_______________ Submitted Under Third Circuit LAR 34.1(a)

April 8, 2014 Before: AMBRO, JORDAN and ROTH, Circuit Judges

.

(Filed: April 30, 2014 )2 _______________ O PINION

___ ____________ JORDAN, Circuit Judge

. Affordable Electric, Inc. (“AEI”), and its corporate officer, Martin Morley (together, “ Appellants ” ) , appeal th e denial by the United States District Court for the Eastern District of Pennsylvania of Morley’s motion t o compel arbitration , which AEI joined

. W e agree with the District Court that Appellants waived any right to compel arbitration, and we therefore affirm.
I. Background On April 30, 2012, SuperMedia L.L.C. (“SuperMedia”), an advertising agency, filed one of the two lawsuits involved in this appeal, Civil Action No. 12

- 2329

. It sought
to recover damages from AEI for an alleged breach of contract , namely AEI’s alleged failure to pay for advertising services that SuperMedia provided

. The contract was

execu ted by Morley , who SuperMedia says “held himself out ... as the ‘owner’ and/or ‘President’ of AEI” with the “authority to bind AEI to contracts with SuperMedia

. ” (Appellee ’s Br. at 2 (quoting App. at 44a).) Afte r the Court denied AEI’s motion to dismiss, A EI answered the Complaint and alleged as a defense that Morley had no authority to bind it to the contract. Notably, AEI did not mention th e contract’s arbitration provision in its answer or cite it as an affirmative defense

. See No. 12

- 2329, AEI Answer, ECF No. 18. The District Court then set March 1, 2013, a s the deadline for submission of written discovery. No. 12

- 2329, Order, Jan. 7, 2013, ECF No. 21. After3

exchanging interrogatories, both parties filed motions to strike interrogatory objections

an d compel interrogatory answers

. Each also filed their responses to those motions

. Meanwhile, SuperMedia brought a second action , Civil Action No. 13

- 176, against Morley in the same court , this time for breach of warranty b ased on the representations he made in forming the advertising contract. T he Court consolidated the two proceedings

. A fter SuperMedia and AEI filed their discovery motions and
responses, Morley filed a motion to dismiss, which included a motion to compel arbitration . He also argued t hat SuperMedia had failed to sufficiently allege fraud and negligent misrepresentation and that those claims were time

- barred under Texas law. In a footnote in his motion, Morley stated that AEI joined him in seeking to compel arbitration of SuperM edia’s claims. Morley also characterized the motion as “a motion for judgment on the pleadings, which AEI requests.” (App. at 68a n.2 .) AEI filed nothing to dispute Morley’s claims about its legal positions.
T he District Court subsequently disposed of Supe rMedia’s and AEI’s various discovery requests and Morley’s motion to dismiss and compel arbitration in a single order

. Relevant here, it de nied Morley’s motion to dismiss. A lthough it did not address his arguments concerning the sufficiency of the pleadi ngs , it ruled on the statute

- of

limitations issue that he had raised

. It also denied the motion to compel arbitration, finding that arbitration was barred because “Morley and AEI have been vigorous litigants, participants in discovery by serving Interroga tories and Document Requests on SuperMedia as well as objecting broadly and voluminously to SuperMedia’s dis covery requests.” (App. at 12a.) Morle y and AEI have timely appealed that order.4

II. Discussion 1 SuperMedia argues that Appe llants w aived arbitration , 2 and Appellants of course
argue they did not

. 3 “ Consistent with the strong preference for arbitration in federal courts, waiver is not to be lightly inferred, and waiver will normally be found only where the demand for arbitration came long after the suit commenced and when both parties had engaged in extensive discovery. ” Nino v. Jewelry Exch., Inc. , 609 F.3d 191, 208 (3d Cir. 2010) (quoting PaineWebber Inc. v. Faragalli , 61 F.3d 1063, 1068

– 69 (3d Cir. 1995) ) (internal quotation marks omitted ). Under that principle, the parties rely on our non

exclusive list of factors , known as the Hoxworth factors, to determine whether prejudice,

1 The District Court had subject matter jurisdiction under 28 U.S.C. § 1332. We exercise jurisdiction pursuant to 9 U.S.C. § 16(a) as the appeal is from a denial of a motion to compel arbitration. “We ... exercise plenary review over the District Cou rt’s determination of whether [Appellants], through [their] litigation conduct, waived [their] right to compel arbitration.” Nino v. Jewelry Exch., Inc. , 609 F.3d 191, 200 (3d Cir. 2010). Appellants also appeal the District Court’s denial of Morley’s motion to dismiss, which AEI joined. Because the portion of the order that disposed of their failure

- to

- state

a - claim and statute

- of

- limitations arguments is not ripe for interlocutory appeal

– it has nothing to do with the issue of arbitration

– we do not have pendent appellate jurisdiction to consider it. See E.I. DuPont de Nemours & Co. v. Rhone Poulenc Fiber & Resin Intermediates, S.A.S. , 269 F.3d 187, 204 (3d Cir. 2001) (“Where ... [the unappealable order] is not ‘interrelated’ or ‘intertwined ’ with the merits of the immediately appealable order, Courts of Appeals exercise restraint and forego review until the unrelated issue is appealable in its own right.”).

2 SuperMedia also contends that Appellants are not entitled to invoke the arbitra tion provision because Morley was not a party to the contract and because the provision exempts collection claims from arbitrat ion. Because we determine, as discussed below, that Appellants waived any alleged right to arbitration under the provision , we need not review the provision itself.

3 Appellant s also argue that the District Court an d SuperMedia were estopped from, respectively, denying and opposing the motion to compel arbitra tion. We summarily reject those arguments as meritless.5

the “ touchstone ” for evaluating an asserted waiver of the right to compel arbitration , exists

. Hoxworth v. Blinder, Robinson, & Co. , 980 F.2d 912, 926

- 27 (3d Cir. 1992)

. Those factors are (1) the timeliness of the motion to compel arbitration ; (2) “ the degree to which the par t y seeking to compel arbitration has contested the merits of its op ponent’ s claims ” ; (3) whether the moving party provided sufficient notice to the nonmoving party of its “ intention to seek arbitration ” ; (4) the extent of the moving party’s “ non - merits

m otion practice ” ; (5) whether the moving party has assent ed to the court’s pretrial orders; and (6) the degree of discovery engaged in by the parties

. Id. (citations omitted)

. W e nee d not discuss all of the factors to explain that Appellants have waived any right to arbitration. Regarding AEI , it waited more than 11 months from the Complaint’s filing to say anything about arbitration

– around the same amount of time as the period at issue in Hoxworth , in which we found waiver to apply. See id

. at 925

- 26. Furthermore, AEI had alrea dy tested the merits of SuperMedia ’s C omplaint i n i ts own motion to dismiss and had failed at that time to raise the issue of arbitration. Also, AEI never notified SuperMedia of its intent to request arbitration. J ust as it failed to mention the issue in its motion to dismiss, it did not cite the arbitra tion provision or mention the
matter at all in its answer to the Complaint. In fact, AEI ’s request is a change in its litigation position; it challenged the enforceability of the arbitration provision in a related
state

- court p roceeding that included Supe rMedia ’s pre

- bankruptcy entity , Idearc Media L.L.C. (“Idearc”). The Bucks County Court of Common Pleas docket indicates that
AEI ’s assertion may have played a role in the state court judge ’s determination deny ing6

Idearc’s motion to compel arbitration

. 4 A ttempting to invoke the arbitration provision after arguing that it is without effect would certainly qualify as a surprise tactic. 5 Finally, as the District Court noted, AEI has been a “vigorous litigant[]” in the underlying proceeding, engaging in signi ficant discovery activity prior to joining Mor ley’s motion. (App. at 11a. ) AEI points to nothing of significance to rebut thos e considerations weighing for waiver

. Therefore, it has waived arbitration under the contract. Morley’s case is a closer c all

– unlike AEI, he fi l e d his motion to compel arbitration just over two months after the filing of the Complaint. He also did not e ngage in significant discovery. B ut an application of the factors to his litigation activities also point s to waiver , for three reasons

. First, Morley , along with AEI, elected to engage in litigation on the merits by filing a third

- party complaint against SuperMedia and two of its employees

. Morley filed that complaint prior to filing his motion to compel arbitration and e ven replied to the third

- party answer

. Second, in his reply to the third

party answer, Morley expressly “denied there is a contract and/or that there is any binding agreement or term of the Third Party Plaintiff to arbitrate disputes.” (Supp. App. at 193 .) As with AEI’s change of position , Morley’s midstream about

- face on the applicability of a contracted

- for arbitration provision supports the conclusion that h e provided no notice to SuperMedia that he intended to seek arbitration. Third, Morley

4 Neither party included in the record the state court order denying Idearc’s motion to compel arbitration ; SuperMedia only provided the docket.

5 Although likely relevant, we need not determine whether Appellants are judicially estopped from arguing that they are entitled to arbitration under the provision because we affirm the District Court’s order on the grounds upon which that Court relied

.7

complie d with pretrial orders, including participation in the pretrial conference and acquiescence in the consolidation of the two cases, types of activities that are “inconsistent[] with an intent to arbitrate

. ” Gray Holdco, Inc. v. Cassady , 654 F.3d 444, 460 ( 3d Cir. 2011). T he factors thus weigh in fav or of applying waiver to Morley, and the District Court did not err i n doing so

. III. Conclusion Accordingly, we will affirm th at portion of the District Court ’s order denying the motion to compel arbitratio n.