United States Court of Appeals

for the Fifth Circuit

No. 20-20416

Polyflow, L.L.C.,

Plaintiff—Appellant,

versus

Specialty RTP, L.L.C.; John R. Wright, Jr.,

Defendants—Appellees.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:20-CV-683

Before Jones, Clement, and Graves, Circuit Judges.

Edith Brown Clement, Circuit Judge:

Polyflow appeals the district court’s order denying its motion to 

compel arbitration with Specialty RTP and its president John Wright. 

Polyflow claims that Specialty and Wright violated a 2017 Settlement 

Agreement between the parties, which included a clause requiring arbitration 

of “any action arising out of” the agreement. Nevertheless, the district court 

denied Polyflow’s motion to compel arbitration in a single-sentence order 

without analysis. That was error. Applying the strong presumption in favor 

of arbitrability, we reverse and remand with instructions to order arbitration.

United States Court of Appeals

Fifth Circuit

FILED

March 30, 2021

Lyle W. Cayce

Clerk

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I.

A.

Polyflow manufactures a proprietary pipe called Thermoflex that it 

sells and installs for customers in the oil and gas industry. John Wright was 

Polyflow’s president from the company’s beginning in April 2011 until he 

resigned in October 2014 to form a competitor, Specialty RTP. In 2015, 

Polyflow sued Specialty RTP and Wright (collectively, “Specialty”) for a 

host of abuses, including that Specialty allegedly manufactured a pipe 

identical to Thermoflex and derived from Polyflow’s protected and 

confidential information. In February 2017, the parties settled that suit via

the Settlement Agreement.

The meat of that agreement imposed a two-year limitation on 

Specialty’s ability to manufacture any competing pipe of its own but allowed 

Specialty to purchase pipe from existing vendors. During and after that twoyear manufacturing ban, the agreement imposed further limitations on 

Specialty’s use or disclosure of Polyflow’s trade secrets. So long as Specialty 

honored those restrictions, it remained free to independently design and 

manufacture a competing product. As a safeguard, the parties agreed to hire 

a neutral pipe expert to inspect Specialty’s proposed pipe, compare it with 

Polyflow’s, and adjudicate whether Specialty was, in fact, independently 

designing its own product.

The agreement specified that the parties would engage the neutral 

expert from the effective date of the agreement in February 2017 until 

Christmas Eve 2019. Then, after that end date, the parties agreed to retain 

the expert to mediate any disputes, unless they mutually agreed to other 

mediation.

The Settlement Agreement included an arbitration clause, in 

paragraph C.4, entitled “Governing Law, Arbitration and Jury Waiver.” It 

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said: “The sole and exclusive jurisdiction and venue for any action arising 

out of this Agreement shall be an arbitration in Harris County, Texas.” 

Additionally, the section of the agreement describing the neutral pipe expert, 

paragraph B.5.c, also addressed arbitration. There, the parties agreed that, if 

the expert (or another mediator) could not resolve any dispute, an arbitrator 

would “render a binding, unappealable decision regarding the Parties’ 

dispute(s).” The agreement added: “For purposes of clarity, the Parties are 

agreeing that any disputes arising out of or related to this Agreement will be 

arbitrated and not litigated in a court of law. . . .”

B.

In September 2019, Polyflow gave notice to Specialty and to the 

neutral pipe expert that it was “terminating immediately” the expert, and 

that Polyflow would “no longer work with” the expert “under the terms of 

the Settlement Agreement.” In that termination letter, Polyflow claimed 

that the expert had breached his neutrality by writing a letter on behalf of 

Specialty that the expert knew “would be used to interfere in Polyflow’s 

existing contractual relationship with [a] customer.” Polyflow also claimed 

that the expert had failed to follow the process specified in the agreement in 

that he “never asked Polyflow for any information on prior projects 

submitted by Specialty.”

On the same day that Polyflow sent the termination letter to the 

expert, it sent Wright an arbitration demand alleging fraudulent inducement, 

breach of the Settlement Agreement, trademark infringement, and other 

federal and Texas statutory and common law violations.

When Specialty resisted arbitration, Polyflow filed this lawsuit in 

February 2020. Polyflow’s original complaint included just two counts: 

requests for an order compelling Specialty to arbitrate and for an order 

appointing an arbitrator. Polyflow followed that with a First Amended 

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Complaint (“FAC”), which added seven substantive counts substantially 

like those in Polyflow’s arbitration demand from the previous September. In 

its FAC, Polyflow said that it “primarily seeks to compel arbitration as set 

forth in Counts One and Two, but to the extent that the Court finds any of 

the affirmative causes of action should not be sent to arbitration, alternatively 

affirmatively asserts, as applicable, Counts Three through Nine.”

Specialty moved to dismiss, and Polyflow moved to compel arbitration 

and to dismiss Specialty’s counterclaims. The district court denied 

Polyflow’s motion to compel arbitration without explanation, and Polyflow 

filed this interlocutory appeal. Our review is de novo. Bowles v. OneMain 

Fin. Grp., 954 F.3d 722, 725 (5th Cir. 2020).

II.

We first consider federal court jurisdiction, which Specialty disputes

for the first time on appeal. Polyflow concedes that there is no diversity 

jurisdiction but maintains that the case presents a federal question. See 28 

U.S.C. §§ 1331–32. We agree.

In Vaden v. Discover Bank, 556 U.S. 49 (2009), the Supreme Court 

explained the jurisdictional analysis in arbitrability disputes like this one. By 

way of background, the Court addressed a jurisdictional oddity in the Federal 

Arbitration Act, 9 U.S.C. §§ 1–16. On one hand, the Act established “a 

national policy favoring arbitration of claims that parties contract to settle in 

that matter,” and § 4 of the Act created the means to enforce an arbitration 

demand in the federal courts. Id. at 58 (internal quotations and citations 

omitted). Indeed, § 4 provides a federal-court remedy in arbitration disputes:

A party aggrieved by the alleged failure, neglect, or refusal of 

another to arbitrate under a written agreement for arbitration 

may petition any United States district court which, save for 

such agreement, would have jurisdiction under title 28, . . . for 

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an order directing that such arbitration proceed in the manner 

provided for in such agreement.

But Vaden then went on to point out a wrinkle. “As for jurisdiction 

over controversies touching arbitration, however, the Act is something of an 

anomaly in the realm of federal legislation: It bestows no federal jurisdiction 

but rather requires for access to a federal forum an independent jurisdictional 

basis over the parties’ dispute.” Vaden, 556 U.S. at 59 (cleaned up).

Thus, based upon the text of § 4, which instructs courts to “assume 

the absence of the arbitration agreement and determine whether it would 

have jurisdiction under title 28 without it,” the Court endorsed a “look 

through” jurisdictional analysis. Id. at 62. (internal quotations omitted). 

When an arbitration demand is predicated on federal-question jurisdiction, 

as in this case, the “court may ‘look through’ a § 4 petition to determine 

whether it is predicated on an action that ‘arises under’ federal law,” as 

required by 28 U.S.C. § 1331. Id. That “look through” analysis does not 

depend upon the petition’s strict language, but upon “the controversy” or 

“substantive conflict between the parties.” Id. at 62–63. “If ‘looking 

through’ to the claims involved in the underlying dispute . . . shows that the 

dispute itself . . . could have been brought in federal court, then federal 

jurisdiction lies over the FAA petition.” Badgerow v. Walters, 975 F.3d 469, 

473 (5th Cir. 2020) (quoting Vaden, 556 U.S. at 62), petition for cert. filed, No. 

20-1143 (Feb 12, 2021).

Under that “look through” analysis, we hold that this underlying 

dispute presents a federal question. Polyflow’s arbitration demand included 

at least three federal statutory claims under the Lanham Act, 15 U.S.C. 

§§ 1114 and 1125. Against that fact and the Vaden analysis, Specialty’s 

argument that Polyflow did not plead the federal claims until its FAC is 

unconvincing. What matters is that a federal question—the Lanham Act 

claims—animated the underlying dispute, not whether Polyflow listed them 

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in its original complaint. As we have said, Vaden “rejected the standard 

articulation of the well-pleaded complaint rule ordinarily used to analyze 

federal jurisdiction,” and substituted instead, “the so-called ‘look through’ 

approach.” Quezada v. Bechtel OG & C Constr. Servs., 946 F.3d 837, 841 (5th 

Cir. 2020). Satisfied of our jurisdiction, we move on.

III.

Our arbitrability analysis is well settled. “First, the court must 

determine whether the parties agreed to arbitrate the dispute.” Will-Drill 

Res. v. Samson Res., 352 F.3d 211, 214 (5th Cir. 2003) (citation omitted). That 

question involves two considerations: “(1) whether there is a valid agreement 

to arbitrate between the parties; and (2) whether the dispute in question falls 

within the scope of that arbitration agreement.” Id. (citation omitted). If the 

court finds that the parties agreed to arbitrate, the court typically “must 

consider whether any federal statute or policy renders the claims 

nonarbitrable.” Id. (citation omitted).

Here, though, Specialty does not dispute that there is a valid 

agreement. Therefore, we consider only whether the parties’ dispute is 

covered by the agreement. We begin with a review of the contract language 

itself and then conduct a claim-by-claim review. Finally, we address 

Specialty’s alleged defenses.

A.

“[A] disagreement about whether an arbitration clause in a

concededly binding contract applies to a particular type of controversy is for 

the court.” Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 84 (2002). 

“When deciding whether the parties agreed to arbitrate the dispute in 

question, ‘courts generally . . . should apply ordinary state-law principles that 

govern the formation of contracts.’” Webb v. Investacorp, 89 F.3d 252, 258 

(5th Cir. 1996) (quoting First Options of Chi. v. Kaplan, 514 U.S. 938, 944 

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(1995)). In doing so, “due regard must be given to the federal policy favoring 

arbitration, and ambiguities as to the scope of the arbitration clause itself 

resolved in favor of arbitration.” Volt Info. Scis. v. Bd. of Trs. of Leland 

Stanford Jr. Univ., 489 U.S. 468, 475–46 (1989); Webb, 89 F.3d at 258.

In other words, if the parties have contracted to arbitrate, there is a 

“presumption” that their disputes “will be deemed arbitrable unless it is 

clear that the arbitration clause has not included them.” First Options, 514 

U.S. at 945 (internal citations and quotations omitted). This is so because 

“when the parties have a contract that provides for arbitration of some 

issues,” courts recognize that “the parties likely gave at least some thought 

to the scope of arbitration.” Id. “And, given the law’s permissive policies in 

respect to arbitration . . . the law . . . insist[s] upon clarity before concluding 

that the parties did not want to arbitrate a related matter.” Id. (citations 

omitted). Specialty, as “the party resisting arbitration[,] shoulders the 

burden of proving that the dispute is not arbitrable.” Overstreet v. Contigroup 

Cos., 462 F.3d 409, 412 (5th Cir. 2006).

Following those “ordinary state-law principles,” Webb, 89 F.3d at 

258, we begin with the language of the contract. Paragraph C.4 saysthat “any 

action arising out of this Agreement shall be an arbitration in Harris County, 

Texas.” And paragraph B.5.c says: “For purposes of clarity, the Parties are 

agreeing that any disputes arising out of or related to this Agreement will be 

arbitrated and not litigated in a court of law. . . .” 

We conclude that this is an action or a dispute arising out of or related 

to the Settlement Agreement. Polyflow accuses Specialty of “continu[ing] 

to use Polyflow information and materials” to “compete unfairly with 

Polyflow,” in violation of the Settlement Agreement. Polyflow lists 

Specialty’s specific violations “less than a month after signing” the 

agreement. Count One of the arbitration demand accuses Specialty of 

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making material misrepresentations that fraudulently induced Polyflow to 

enter into the Settlement Agreement.

1 Count Two alleges a material breach 

of the Settlement Agreement. And the remaining counts in the arbitration 

demand incorporate those allegations into common law and statutory claims. 

So too with the counts in the FAC.

The weight of our precedent supports the finding that paragraph C.4 

is a “broad” arbitration clause that encompasses these claims. See Explo v. 

S. Nat. Gas Co., 788 F.2d 1096, 1098–99 (5th Cir. 1986) (comparing 

“narrower ‘arises under’ language” with “broader ‘arising out of’ 

language”); Sedco v. Pemex, 767 F.2d 1140, 1144 n.8, 1145 (5th Cir. 1985) 

(holding that clause with “arising out of” language is “broad”); The Rice Co. 

(Suisse) v. Precious Flowers, 523 F.3d 528, 532 (5th Cir. 2008) (same); see also

9 U.S.C. § 2 (“[A]n agreement in writing to submit to arbitration an existing 

controversy arising out of . . . a contract . . . shall be valid, irrevocable, and 

enforceable, save upon such grounds as exist at law or in equity for the 

revocation of any contract.” (emphasis added)).

To be sure, in Pennzoil Exploration v. Ramco Energy, 139 F.3d 1061, 

1067 (5th Cir. 1998), we distinguished the “broad” arbitration clauses at 

issue there from “arising out of” clauses that we described as narrow. But 

that classification in Pennzoil was in dicta; it opined on contract language not 

at issue in the case. See id. Moreover, Pennzoil stands alone in this court’s 

jurisprudence compared to our consistent “broad” holdings both before and 

after.

1 Polyflow alleges fraudulent inducement of the contract generally, not of the 

arbitration provision. The distinction can be important because of its impact on the court’s 

ability to adjudicate the question. See Prima Paint Corp. v. Flood & Conklin Mfg., 388 U.S. 

395, 403–04 (1967); Dillard v. Merrill Lynch, 961 F.2d 1148, 1154 n.9 (5th Cir. 1992). Since 

it is not in issue, the court need not explore Prima Paint’s distinction.

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We hold that the arbitration language in paragraph C.4 is broad. 

Similarly, the language in B.5.c is assuredly a “broad arbitration clause[] 

capable of expansive reach.” Pennzoil, 139 F.3d at 1067; see Prima Paint Corp. 

v. Flood & Conklin Mfg., 388 U.S. 395, 398 (1967) (characterizing “arising out 

of or relating to” language as a “broad arbitration clause”).

Specialty’s arguments to the contrary are simply unconvincing. For 

instance, Specialty relies on cases interpreting “arising under” clauses. But 

that language is not at issue here, so the comparison is spurious. See Explo, 

788 F.2d at 1099. Likewise, Specialty argues that the two arbitration clauses 

would be redundant if both are read broadly. To the contrary, they coexist 

harmoniously. Paragraph B.5.c says that “any disputes arising out of or 

related to this Agreement will be arbitrated.” That language references the 

entire agreement, not only the specific disputes that might arise from the 

neutral pipe expert’s judgment. And, Polyflow points out, “placement [of 

that provision] in Section B.5 was sensible: Lest anyone think that by 

establishing particular procedures for arbitrating [certain disputes,] the 

parties were limiting the substance of what they would arbitrate to those 

issues, the parties ‘clari[fied]’ that they would arbitrate ‘any disputes arising 

out of or related to this Agreement.’” As Polyflow urged at oral argument, 

broad plus broad equals broad.

B.

A claim-by-claim review reinforces the contract’s general proposition. 

“Whether a claim falls within the scope of an arbitration agreement under 

Texas law depends on the factual allegations of the complaint instead of the 

legal causes of action asserted.” Ford v. NYLCare Health Plans, 141 F.3d 243, 

250 (5th Cir. 1998). “A tort claim . . . is arbitrable if it is so interwoven with 

the contract that it could not stand alone, but is not arbitrable if it is 

completely independent of the contract and could be maintained without 

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reference to a contract.” Id.(quotation omitted). We take each of Polyflow’s 

statutory and common law claims in turn.

Fraudulent inducement. “Fraudulent inducement is a particular 

species of fraud that arises only in the context of a contract and requires the 

existence of a contract as part of its proof.” Siddiqui v. Fancy Bites, 504 

S.W.3d 349, 369 (Tex. App.—Houston [14th Dist.] 2016, pet. denied). The 

Texas Supreme Court has found claims of fraudulent inducement to be 

arbitrable under a narrower “involving” arbitration clause, In re J.D. 

Edwards World Sols., 87 S.W.3d 546, 551 (Tex. 2002), and a broader “arising

from or relating to” clause, In re Kaplan Higher Educ., 235 S.W.3d 206, 208–

09 (Tex. 2007) (per curiam). As such, this claim surely falls within the 

parties’ arbitration agreement; indeed, Polyflow claims that Specialty made 

“false representations and promises in the Settlement Agreement itself.” 

The fraudulent inducement claim is arbitrable.

Trade secrets. “A trade secret misappropriation in Texas requires: 

(a) the existence of a trade secret; (b) a breach of a confidential relationship 

or improper discovery of the trade secret; (c) use of the trade secret; and 

(d) damages.” Taco Cabana Int’l v. Two Pesos, 932 F.2d 1113, 1123 (5th Cir. 

1991). “A trade secret is any formula, pattern, device or compilation of 

information used in one’s business, and which gives an opportunity to obtain 

an advantage over competitors who do not know or use it.” Id. Polyflow 

argues that its trade secret claim similarly falls within the scope of the 

Settlement Agreement because the agreement helps to establish breach of 

Specialty’s duty. Just so. The Settlement Agreement prohibits Specialty 

from using or disclosing “Polyflow testing data, . . . models, . . . braid 

construction model and manufacturing parameters, . . . Case studies and 

manuals, . . . recipe cards, . . . coupling designs,” and a half-dozen other 

categories of information and materials. These prohibitions constituted a 

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material part of the consideration that Polyflow received for entering the 

Settlement Agreement. The trade secret allegations are arbitrable.

Trademark dilution. As to Polyflow’s trademark claim, Specialty 

contends there is no provision in the agreement “regarding trademarks or 

their usage.” But this is easily dispatched. Although the Settlement 

Agreement may not have used the term “trademark,” it required Specialty 

to return “all hard-copy Polyflow information and materials to Polyflow . . . 

including but not limited to case studies, drawings, testing data, models, 

model output, presentations, marketing materials, and manuals.” And the 

agreement prevented Specialty from using or disclosing those and other 

materials “during and after the two-year manufacturing ban.” Polyflow has 

alleged that, in contravention of those terms, Specialty “pass[ed] Polyflow 

information and products off as [its] own.” The trademark claim is 

arbitrable.

Unfair competition. Next, Specialty argues that the unfair competition 

claims are independent of the Settlement Agreement because they fail the 

court’s standard that arbitrability “depends on the factual allegations of the 

complaint instead of the legal causes of action asserted.” Ford, 141 F.3d at 

250. But Polyflow points to the Settlement Agreement’s prohibition against 

Specialty “publicly claim[ing] to have any current operational, contractual, 

or other business relationship with Polyflow.” Polyflow alleges that Specialty 

violated that term by “misrepresenting the Settlement Agreement’s terms in 

the marketplace, and misrepresenting [its] relationship with Polyflow.” To 

that, Specialty offers no rebuttal. Indeed, Specialty cannot point us to a single 

case outside a lone citation to Ford, 141 F.3d at 251. As the party opposing 

arbitration, Specialty’s unsupported argument is fatal to its burden. See 

Overstreet, 462 F.3d at 412. As a result, the federal and state unfair 

competition claims are arbitrable.

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Tortious interference. Finally, the elements of this claim are “the 

existence of a contract subject to interference, an act of interference that was 

wilful and intentional, proximately causing plaintiff’s damages, with actual 

damage or loss to plaintiff.” Fridl v. Cook, 908 S.W.2d 507, 513 (Tex. App.—

El Paso 1995, writ dism’d w.o.j.). In Fridl, the court held claims not arbitrable 

because the plaintiff “could [have brought] the same tortious interference 

claims against a wholly unrelated party.” Id. And, in Ford, this court cited 

Fridl approvingly in finding that a “tort action did not depend, as a legal 

matter, on the contract, and, therefore, was not ‘related to’ the contract 

within the meaning of the arbitration clause.” Ford, 141 F.3d at 251.

In its arbitration demand and FAC, Polyflow alleged that Specialty 

interfered with its relationships with business partners including Petronas 

and Exxon. Polyflow alleged several specific instances that predated the 

parties’ Settlement Agreement, including that “within days after Wright left

Polyflow,” he told “market participants, such as Petronas, Oxy, and Exxon 

that Polyflow was lacking talent for the installation of pipe, but that 

[Specialty] had such talents.” Similarly, before the Settlement Agreement, 

Polyflow accused Specialty of misleading industry members that Specialty 

has “some type of agreed relationship with Polyflow.” As for more recent 

conduct, the FAC says that Specialty has “continued this conduct since the 

Settlement Agreement with Polyflow’s actual and potential customers.” 

The FAC cites an example in August 2019, when Specialty allegedly sent a 

letter “to Polyflow’s largest customer . . . ma[king] a number of 

misrepresentations in attempting to improperly interfere with Polyflow’s 

business relationship.”

Fridl demands that those allegations establish a claim “so interwoven 

with the contract that it could not stand alone.” 908 S.W.2d at 511. Polyflow 

says they are, because they “arise from breaches of the Settlement 

Agreement’s provisions prohibiting . . . misrepresentations about the 

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relationship between Polyflow and [Specialty], and misrepresentations about 

the Settlement Agreement.” Although the relative lack of specifically 

pleaded facts makes this a close question, we conclude that this claim, too, is 

arbitrable. Polyflow could bring a similar claim against “a wholly unrelated 

party,” id. at 513, but it could not bring the same claim without reference to 

Specialty’s obligations under the Settlement Agreement. On this score, we 

are reminded too that Polyflow’s arbitration demand was spurred, in part, by

the expert’s alleged “interfer[ence] in Polyflow’s existing contractual 

relationship with [a] customer.” Considering these facts within the standard 

that “courts must indulge every reasonable presumption in favor of 

arbitration,” id. at 511, we find that this claim, like the others, is arbitrable.

In short, our claim-by-claim review reinforces the contract language. 

Polyflow’s entire arbitration demand is arbitrable. We now consider whether 

any of Specialty’s alleged defenses nonetheless bar arbitration.

C.

Specialty has a myriad of responses to the assertion of arbitrability. It

argues that Polyflow seeks to arbitrate matters that the parties agreed to 

dismiss by the Settlement Agreement; that mediation is a condition 

precedent to arbitration; that Polyflow materially breached the agreement by 

dismissing or attempting to dismiss the neutral pipe expert; and that Polyflow 

waived arbitration by invoking the judicial process.

Before considering these, we must decide whether the court or an 

arbitrator should address them. We have said that “where the existence of 

the contract is not in question, the court must examine whether the 

allegations made by the party resisting arbitration challenge the making of the 

agreement to arbitrate itself as opposed to allegations regarding the contract 

as a whole.” Banc One Acceptance Corp. v. Hill, 367 F.3d 426, 430 (5th Cir. 

2004) (internal quotation and citation omitted). A defense that “does not 

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specifically relate to the arbitration agreement . . . must be submitted to the 

arbitrator as part of the underlying dispute.” Id.

Accordingly, we find that the bulk of Specialty’s arguments are for an 

arbitrator, not the court. Specialty’s defenses predicated on pre-Arbitration 

Agreement conduct, material breach, and mediation do not “attack the 

‘making’ of the agreement to arbitrate itself.” Banc One, 367 F.3d at 429 

(quoting Prima Paint, 388 U.S. at 404). Instead, its defenses go right to the 

heart of the parties’ obligations under the Settlement Agreement. These 

questions implicate the enforceability of the agreement, not its “very 

existence.” Will-Drill, 352 F.3d at 215. Specialty concedes an arbitrator’s 

authority to resolve certain disputes under the Settlement Agreement. Its

attack on the scope of that authority means an arbitrator, not the court,

should address these defenses. See Gen. Warehousemen & Helpers Union Loc. 

767 v. Albertson’s Distrib., 331 F.3d 485, 488 (5th Cir. 2003) (“[W]e do not 

decide for ourselves these questions of procedural arbitrability; rather, we 

concentrate on what a rational mind could decide.”).

In contrast, whether Polyflow waived arbitration by availing itself of 

the judicial process is a question of law. Sedillo v. Campbell, 5 S.W.3d 824, 

826 (Tex. App.—Houston [14th Dist.] 1999, no writ). The standard for 

determining waiver in this context is the same under Texas law or the FAA. 

Id. “Courts will not find that a party has waived its right to enforce an 

arbitration clause merely by taking part in litigation unless it has substantially 

invoked the judicial process to its opponent’s detriment.” Id. at 827. 

“Actions that raise the specter of waiver may include the applicant’s 

engaging in some combination of filing an answer, setting up a counterclaim, 

pursuing extensive discovery, moving for a continuance and failing to timely 

request arbitration.” Id. Specialty bears the burden of proving waiver, and 

its burden is “heavy.” Id. “Moreover, where, as here, the party seeking 

arbitration has made a timely demand for arbitration at or before the 

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commencement of judicial proceedings in the trial court, the burden of 

proving waiver falls even more heavily on the shoulders of the party seeking 

to prove waiver.” Sw. Indus. Imp. & Exp. v. Wilmod, 524 F.2d 468, 470 (5th 

Cir. 1975) (cleaned up).

Polyflow did not waive its right to arbitration. Indeed, Specialty’s 

argument borders on frivolous. Specialty argues that forcing Specialty to file 

a motion to dismiss and an answer evinces “clear” prejudice. And it adds 

that Polyflow “affirmatively brought claims that it seeks by later-filed motion 

to compel into arbitration.” But Polyflow said consistently at the district 

court that its primary bid for relief was an order compelling arbitration. 

Polyflow amended its complaint to include substantive claims only as an 

alternative “to the extent that the Court finds any of the affirmative causes 

of action should not be sent to arbitration.”

Nor did Polyflow change course when it moved to compel arbitration; 

that course was set when it filed the original complaint. Instead, it was 

Specialty, not Polyflow, that resisted arbitration. Polyflow has not engaged 

in any action that is “inconsistent with its right to arbitrate.” Sedillo, 5 S.W.

3d at 829. This court has declined to find waiver even when a party engages 

in litigation for far longer before moving to compel arbitration. See Tenneco 

Resins v. Davy Int’l, 770 F.2d 416, 420–21 (5th Cir. 1985) (collecting cases). 

Specialty has not even approached—much less met—its heavy burden. See 

Wilmod, 524 F.2d at 470.

* * *

In assessing this appeal, we have done nothing more than hold the 

parties to their contractual obligation. Polyflow and Specialty contracted to 

arbitrate disputes arising out of their Settlement Agreement. Polyflow 

alleged claims that meet that test. And Specialty offers no justiciable 

defenses to overcome the presumption in favor of arbitrability. We therefore 

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REVERSE the district court and REMAND with instructions that the 

parties be ordered into arbitration.

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