PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT 

SEAN R. CONRAD,

 Plaintiff-Appellee,

v.

PHONE DIRECTORIES COMPANY, 

INC., MARC BINGHAM, individually; 

and MIKE BINGHAM, individually,

Defendants-Appellants.

No. 07-6276

 

Appeal from the United States District Court 

 for the Western District of Oklahoma 

(D.C. No. 5:07-CV-00859-R)

 

Ronald W. Taylor of Venable, LLP, Baltimore, Maryland (David E. Strecker, Jessica C. 

Ridenour, Strecker & Associates, P.C., Tulsa, Oklahoma on the brief), for DefendantsAppellants. 

Scott F. Brockman (Stanley M. Ward, Woodrow K. Glass with him on the brief) of Ward 

& Glass, LLP, Norman, Oklahoma, for Plaintiff-Appellee. 

 

Before LUCERO, EBEL, and HARTZ, Circuit Judges. 

EBEL, Circuit Judge. 

 

FILED 

United States Court of Appeals 

Tenth Circuit 

November 10, 2009

Elisabeth A. Shumaker 

Clerk of Court
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 In this appeal we are asked to decide, for the first time in this circuit, whether we 

have jurisdiction over an interlocutory appeal of the denial of a motion to dismiss 

premised on the existence of an arbitration agreement, notwithstanding the fact that the 

defendants did not explicitly move to stay the litigation or compel arbitration under the 

Federal Arbitration Act (“FAA”). We hold that we do not. Based on the plain text of the 

FAA, our canons of construction of jurisdictional statutes, and the Supreme Court’s 

recently-expressed categorical approach to the FAA’s appellate jurisdiction provision, we 

hold that in order to properly invoke appellate jurisdiction under the Act, the movant 

must either explicitly move to stay litigation and/or compel arbitration pursuant to the 

Federal Arbitration Act, or it must be unmistakably clear from the four corners of the 

motion that the movant seeks relief provided for in the FAA. We thus dismiss this appeal 

for lack of jurisdiction and remand the case to the district court. 

I. Background

Plaintiff Sean Conrad sued his former employer, Phone Directories Co., and its 

chief executive and financial officers (defendants Marc and Mike Bingham, respectively; 

all three defendants will be collectively referred to as “PDC”) on state-law tort and 

breach-of-contract claims. Subject-matter jurisdiction in the district court was premised 

on diversity of citizenship; Conrad is a citizen of Oklahoma and defendants are domiciled 

in Utah, and Conrad sought more than $75,000 in damages. See 28 U.S.C. § 1332(a). 

The gravamen of Conrad’s suit, in essence, is that PDC violated an agreement to employ 
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him, as well as to provide him with five percent of the profits when the company was 

sold in 2007. 

PDC argues, however, that Conrad signed a later employment agreement that 

included a clause requiring all disputes between PDC and Conrad to be submitted to 

arbitration. In response to Conrad’s complaint, PDC filed a motion to dismiss under 

Federal Rule of Civil Procedure 12. PDC asserted three bases for dismissal: first, that the 

second employment agreement required Conrad to bring his claims in Utah, rather than 

Oklahoma, and thus that the suit should be dismissed for improper venue under Rule 

12(b)(3); second, that the dispute resolution provisions of the second employment 

agreement required Conrad to arbitrate his claims, and thus that the court should dismiss 

those claims; and third, that Conrad’s state-law claims were legally deficient for various 

reasons and should thus be dismissed under Rule 12(b)(6) for failure to state a claim upon 

which relief can be granted. 

While the arbitration agreement was an important part of PDC’s motion to 

dismiss, the motion did not ask the court to enforce the agreement under the FAA. The 

portion of PDC’s motion that addressed the agreement asserted only that “Plaintiff’s 

Complaint should be dismissed . . . because Plaintiff agreed to arbitrate all claims relating 

to his employment with [PDC.]” (App. at 33.) Only once in its memorandum in support 

of the motion, at the outset of its arbitration argument, did PDC mention the possibility of 

any outcome other than outright dismissal. (Id. at 49 (“If the Court does not dismiss this 

matter for improper venue, the Court should issue an order compelling arbitration and 
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dismissing Plaintiff’s claims.”).) PDC’s motion did not, however, explicitly ask the 

district court to stay the proceeding pending arbitration or to compel arbitration under 

either § 3 or § 4 of the FAA. See 9 U.S.C. § 3 (empowering district courts to stay 

litigation where an issue therein is subject to arbitration under a written agreement); 9 

U.S.C. § 4 (authorizing district courts to compel arbitration under a valid agreement to 

arbitrate). The only mention of either provision of the FAA came in a quotation in a 

parenthetical appended to the citation of a Third Circuit case at the end of PDC’s 

arbitration agreement argument. 

 The district court granted PDC’s motion with respect to some of Conrad’s statelaw tort claims, but denied the motion to dismiss the complaint in full under the 

arbitration agreement. In the district court’s view, “[a]t a minimum, genuine issues of 

material fact exist as to the applicability of [the second employment agreement] to the 

parties’ relationship and [Conrad’s] claims herein and as to the enforceability of [the 

second agreement,] assuming any applicability.” (App. at 142.) PDC filed an immediate 

appeal of this denial, asserting that its appeal was “taken pursuant to 9 U.S.C. § 16(a),” 

the appellate jurisdiction provision of the FAA. 

II. Appellate Jurisdiction

 Before addressing the merits of PDC’s arguments, we must first assure ourselves 

that we possess jurisdiction over this appeal. Though neither party initially briefed the 

question of our appellate jurisdiction, we ordered supplemental briefing on the issue of 

whether FAA § 16(a) grants us jurisdiction to review the district court’s order. See
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Kennedy v. Lubar, 273 F.3d 1293, 1301 (10th Cir. 2001) (recognizing this court’s ability 

to raise questions of appellate jurisdiction sua sponte). 

 Title 28, section 1291 of the United States Code grants Courts of Appeals 

jurisdiction over “all final decisions of the district courts of the United States.” A final 

decision “is a decision by the district court that ‘ends the litigation on the merits and 

leaves nothing for the court to do but execute the judgment.’” Utah ex rel. Utah State 

Dept. of Health v. Kennecott Corp., 14 F.3d 1489, 1492 (10th Cir. 1994) (quoting Catlin 

v. United States, 324 U.S. 229, 233 (1945)). By its very nature, the decision to deny a 

motion to dismiss is not final; rather than ending the litigation, it is a decision that it will 

continue. See Hatten-Gonzales v. Hyde, 579 F.3d 1159, 1166 (10th Cir. 2009). Under 

normal circumstances, therefore, we would have no power to review the district court’s 

decision to deny PDC’s motion. 

 The FAA, however, contains a statutory exception to the final decision rule for 

certain categories of ordinarily non-final orders. Under the statute, 

 (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, 

(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; 
-6- 

or 

(3) a final decision with respect to an arbitration that is 

subject to this title. 

9 U.S.C. § 16. Congress’ purpose in passing the FAA was to reverse judicial enmity to 

arbitration as a method of dispute resolution. See Gilmer v. Interstate/Johnson Lane 

Corp. 500 U.S. 20, 24 (1991). Section 16(a) serves that end by ensuring that district 

court orders hostile to arbitration agreements can be immediately appealed. See Ansari v. 

Qwest Commc’ns Corp., 414 F.3d 1214, 1217 (10th Cir. 2005); Sandvik AB v. Advent 

Int’l Corp., 220 F.3d 99, 104 (3d Cir. 2000) (noting that failing to review orders denying 

arbitration “could circumvent the FAA’s clear purpose of enforcing binding arbitration 

agreements”). 

Had PDC brought a motion either to stay proceedings or to compel arbitration 

under FAA §§ 3 or 4, and had the district court then denied that motion, our jurisdiction 

would be clear. Cf. Chelsea Family Pharmacy, PLLC v. Medco Health Solutions, Inc., 

567 F.3d 1191, 1194 (10th Cir. 2009) (exercising appellate jurisdiction over the denial of 

a § 3 motion to stay litigation); Ansari, 414 F.3d at 1217-18 (finding appellate 

jurisdiction even where district court denied FAA § 4 petition on procedural grounds). 

But PDC did not so move in the district court. Instead, it moved to dismiss the complaint 

outright under Rule 12, a motion only partly premised on the existence and enforceability 

of the arbitration agreement. Therefore, the question for us is whether we should treat a 

generic motion to dismiss under Rule 12 as a motion made “under section 3” or “under 

section 4” of the FAA for the purposes of taking jurisdiction under § 16(a). 
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Whether a Court of Appeals can or should treat a motion to dismiss as a motion 

under the FAA for the purposes of § 16(a) is an unsettled issue nationwide, and has not 

been previously addressed in our circuit. See Harrison v. Nissan Motor Corp. in U.S.A., 

111 F.3d 343, 348-49 (3d Cir. 1997) (noting that some courts have found appellate 

jurisdiction, but that the question remains open). To resolve it, we look to the text of 

§ 16(a) and our canons of statutory construction, to how the Supreme Court has treated 

the statute, and to the decisions of our sister circuits. 

 A. Text of FAA § 16(a)

 When interpreting a term in a statute, “we turn first to the text.” Johnson v. 

Riddle, 305 F.3d 1107, 1116-17 (10th Cir. 2002). If the words of the statute have a plain 

and ordinary meaning, we apply the text as written. See Jones v. Comm’r of Internal 

Revenue, 560 F.3d 1196, 1200 (10th Cir. 2009). We may consult a dictionary to 

determine the plain meaning of a term. Id. at 1200-01.We also take into account “the 

broader context of the statute as a whole” when ascertaining the meaning of a particular 

provision. In re Wise, 346 F.3d 1239, 1241 (10th Cir. 2003) (quoting Robinson v. Shell 

Oil Co., 519 U.S. 337, 341 (1997)). If we cannot determine the meaning of a statutory 

term merely by reference to the text, we may also look to traditional canons of statutory 

construction to inform our interpretation. See Lamb v. Thompson, 265 F.3d 1038, 1051 

(10th Cir. 2001). 

 The term at issue in § 16(a) is the preposition “under.” In order for us to find 

appellate jurisdiction here, we must decide that the phrases “under section 3” in 
-8- 

§ 16(a)(1)(A) and “under section 4” in § 16(a)(1)(B) encompass not only motions 

explicitly brought pursuant to those provisions, but also motions that in some manner 

contemplate the applicability of §§ 3 or 4 without mentioning them by name. The most 

on-point definition of “under” in Webster’s Dictionary is “within the grouping or 

designation of.” Webster’s Third New International Dictionary 2487 (1986 ed.).1

 This 

definition does not necessarily settle the question. When a motion is brought under Rule 

12, it is not “within the . . . designation of” either §§ 3 or 4; the notion of “designation” 

implies explicitness. Such a motion, however, could conceivably be “within the grouping 

. . . of” a §§ 3 or 4 motion if it encompasses the same arguments that an FAA motion 

might. 

 The structure of § 16(a), however, offers a more substantial clue to the intent of 

Congress. Section 16(a) sets out seven different otherwise non-final district court actions 

that may be immediately appealed: denying a § 3 motion; denying a § 4 petition; denying 

an application under § 206, which allows enforcement of international arbitration orders; 

confirming or denying an arbitration award; altering or vacating an award; granting or 

altering an injunction against an arbitration; and entering any other “final decision[] with 

respect to an arbitration.” 9 U.S.C. § 16(a). That Congress chose specifically to 

 

1

 Because § 16 was added to the FAA in 1988, see Pub. L. 100-702, § 1019(a), 102 Stat. 

4642, 4670-71 (1988), we look to a contemporary dictionary to determine the likely 

intent of the Congress adopting the provision. See Perrin v. United States, 444 U.S. 37, 

42 (1979) (“[U]nless otherwise defined, words will be interpreted as taking their 

ordinary, contemporary, common meaning . . . at the time Congress enacted the statute . . 

. .).” 
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enumerate the limited conditions under which a non-final order may be appealed argues 

against our recognizing a further category of permitted appeals, namely, appeals from the 

denial of motions to dismiss based in part on arbitration agreements. 

 Canons of construction also support the notion that “under section 3 [or section 

4]” should be interpreted only to encompass motions brought explicitly pursuant to the 

FAA or those in which it is plainly apparent that the applicant seeks only arbitration. 

Because of the limited and defined nature of the jurisdiction of the federal courts, we are 

bound to construe statutes conferring jurisdiction narrowly. Weber v. Mobil Oil Corp., 

506 F.3d 1311, 1314 (10th Cir. 2007); see also Pritchett v. Office Depot, Inc., 420 F.3d 

1090, 1094-95 (10th Cir. 2005) (“It is well-established that statutes conferring 

jurisdiction upon the federal courts . . . are to be narrowly construed in light of our 

constitutional role as limited tribunals.” (citing Shamrock Oil & Gas Corp. v. Sheets, 313 

U.S. 100, 108-09 (1941))). By encompassing only those motions explicitly brought 

under the FAA or unmistakably invoking its remedies, rather than all motions founded at 

least in part on arbitration agreements, Conrad’s reading of § 16(a) is clearly the narrower 

of the two. 

 Finally, two policy maxims also argue in favor of our conclusion. First, this court 

has recognized that, where jurisdictional matters are concerned, we prefer clear, brightline rules. See McCauley v. Halliburton Energy Servs., Inc., 413 F.3d 1158, 1162 (10th 

Cir. 2005) (noting the preference in the context of a § 16(a) appealability analysis). 

Second, there is a long-established policy preference in the federal courts disfavoring 
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piecemeal appeals. See Pimentel & Sons Guitar Makers, Inc. v. Pimentel, 477 F.3d 1151, 

1153 (10th Cir. 2007) (citing Gardner v. Westinghouse Broad. Co., 437 U.S. 478, 480 

(1978)). Our approach serves both of those policy interests. The rule we adopt today is 

both clear and easily administrable. If the motion falls within one of the seven categories 

laid out in § 16(a), or unmistakably seeks only the relief offered by one of those 

provisions, it may be appealed; if not, it may not. This approach will also eliminate the 

necessity—as demonstrated by this case—of determining whether an interlocutory appeal 

may be maintained. 

 The administrative problems of the alternative rule are illustrated in this case, 

where we are asked to give controlling weight to some incidental phrase or reference 

otherwise buried in a motion that would not typically alert a judge that relief is being 

requested under §§ 3 or 4 of the FAA. The possible connection to the FAA is even more 

attenuated here because the clear (almost exclusive) thrust of the motion to dismiss was 

to ask the court to examine the merits of the case and to dismiss it for lack of merit. This 

relief is inconsistent with a request to have the arbitrator decide the case. It is clearly 

inconsistent with the policy behind the FAA to ask the court to decide the merits of the 

case and then almost incidentally suggest that if the court does not rule in the movant’s 

favor, then the movant would like a second bite at the apple before the arbitrator.2

 

2

 If a party files a motion under FAA §§ 3 or 4, that motion is denied by the court, and the 

denial is affirmed on interlocutory appeal, nothing prevents that party from then filing a 

Rule 12 motion to dismiss. Rules 12(g) and (h) are not to the contrary. Rule 12(g)(2) 

Continued . . . 
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 On the whole, thus, a bright-line analysis grounded in the plain text of § 16 seems 

the better approach to this jurisdictional issue. Therefore, based on the text and the 

overall structure of the statutory provision, as well as canons of construction and policy 

considerations, we conclude that § 16(a) permits interlocutory appeals only over those 

motions brought explicitly pursuant to the FAA, or motions in which it is unmistakably 

clear that the defendant seeks only the relief offered by the FAA. 

 B. The Supreme Court’s Interpretation in Arthur Andersen, L.L.P. v. Carlisle

 While it does not control the outcome of the question presented here, the Supreme 

Court’s recent decision in Arthur Andersen, L.L.P. v. Carlisle, 129 S. Ct. 1896 (2009), 

provides additional support for a categorical, bright-line approach to § 16(a). The issue 

presented in that case was whether the denial of a motion to compel a non-signatory to an 

arbitration agreement nevertheless to arbitrate was still brought “under section 3,” so as 

to invoke the appellate jurisdiction granted in § 16(a). 

 The Court answered that question in the affirmative, and in doing so it admonished 

 

bars a party from making “another motion under this rule” based on an argument omitted 

from a prior Rule 12 motion. Fed. R. Civ. P. 12(g)(2) (emphasis added). Rule 12(h)(1) 

points out that a “defense listed in Rule 12(b)(2)-(5)” is waived if not brought in an initial 

Rule 12 motion. Fed. R. Civ. P. 12(h)(1) (emphasis added). A motion made under the 

FAA to compel arbitration or stay litigation, however, is expressly not a motion made 

under Rule 12, and “[t]he prohibition in Federal Rule 12(g) against successive motions 

expressly covers only motions under ‘this rule,’ which, of course, means motions 

authorized by Rule 12.” 5C Charles Alan Wright & Arthur R. Miller, Federal Practice 

and Procedure § 1386 (3d ed. 2004) (citing Moore v. Dunham, 240 F.2d 198, 200 (10th 

Cir. 1957) (holding that a motion to stay proceedings under the Soldiers’ and Sailors’ 

Civil Relief Act does not trigger the waiver provisions applied to successive Rule 12 

motions)). 
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courts to avoid conflating the question of § 16(a) appellate jurisdiction with the 

underlying merits of the appeal. The Sixth Circuit had “looked through” the § 3 motion 

to the merits of the arguments, and held that because—in its view—Arthur Andersen 

could not enforce the arbitration agreement against Carlisle, § 16(a) did not confer 

jurisdiction to hear the appeal. But the Supreme Court held that “[j]urisdiction over the 

appeal . . . must be determined by focusing on the category of order appealed from, rather 

than upon the strength of the grounds for reversing the order.” 129 S. Ct. at 1900 

(internal quotation marks omitted, emphasis added). Thus, even if Arthur Andersen’s 

argument for why it could enforce the arbitration agreement against Carlisle were utterly 

frivolous, the reviewing court would not be divested of jurisdiction to hear the appeal, as 

long as Arthur Andersen “explicitly asked for a stay pursuant to § 3.” Id.; see also id. at 

1901 (“[E]ven utter frivolousness of the underlying request for a § 3 stay cannot turn a 

denial into something other than ‘an order . . . refusing a stay of any action under section 

3.’”) (quoting 9 U.S.C. § 16(a)(1)). 

 In dissent, three Justices argued that whether the party against whom enforcement 

of an arbitration agreement is sought is a party to the agreement should be a threshold 

question to the application of § 16(a), but the majority solidly rejected that approach. 

“Determination of whether § 3 was invoked in a denied stay request is immeasurably 

more simple and less factbound than the threshold determination respondents would 

replace it with . . . . It is more appropriate to grapple with that merits question after the 

court has accepted jurisdiction over the case.” Arthur Andersen, 129 S. Ct. at 1901. 
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Rather than engage in a factually-specific inquiry into the status of the parties, the 

majority instructed the lower courts to look squarely and exclusively at “the category of 

the order appealed from” to decide whether § 16(a) applies. See id. at 1900. 

 While the question facing this court is different, the methodology we adopt today 

is consistent with the Supreme Court’s admonition. PDC’s preferred approach 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 4.” To us, this is akin to the type of factbound threshold determination the 

respondents urged the Supreme Court to adopt in Arthur Andersen, and that the Court 

rejected. By focusing on “the category of the order appealed from,” as the Arthur 

Andersen Court did, we avoid conflating the jurisdictional question and the merits of the 

appeal and reach our jurisdictional answer in a simple, streamlined process. 

 C. Approaches Taken in Other Circuits

 The opinions of our sister circuits to have considered the question also support the 

conclusion we reach today. While the other circuits have not explicitly characterized the 

analysis under § 16(a) as a two-step process as we do, their opinions buttress the notion 

that to determine whether appellate jurisdiction under § 16(a) exists, you look first to how 

the motion was characterized, and then to the nature of the relief sought. 

 The D.C. Circuit, for example, in Bombardier Corp. v. Nat’l R.R. Passenger Corp., 

333 F.3d 250, 253 (D.C. Cir. 2003), focused on “the plain language of Section 16.” It 
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concluded that the movant’s Rule 12 motion “was neither a motion to compel arbitration 

under 9 U.S.C. § 4 nor a motion to stay arbitration under 9 U.S.C. § 3,” and so no 

appellate jurisdiction existed under § 16(a). Id. In Wabtec Corp. v. Faiveley Transport 

Malmo AB, 525 F.3d 135, 140 (2d Cir. 2008), the Second Circuit also noted the 

importance of the plain language of § 16(a), and further noted that the movant’s motion 

“focused on preventing [the plaintiff] from resolving any dispute in the courts,” rather 

than purely seeking arbitration, and thus that no appellate jurisdiction followed. Finally, 

the First Circuit in Fit Tech, Inc. v. Bally Total Fitness Holding Corp., 374 F.3d 1, 6 (1st 

Cir. 2004), looked more directly to the facts of the case before it to determine that the 

defendant “clearly [was] invoking the [arbitration] remedy, even if a stay rather than 

dismissal ensues.” Thus, appellate jurisdiction was appropriate. See id. Our approach to 

this issue, laid out in the next section, melds the approaches taken by the other circuits 

into a coherent, two-step process. 

 D. Our Analytical Approach to § 16(a)

 Given the foregoing, we hold that, in order to invoke the appellate jurisdiction 

provided in § 16(a), the defendant in the district 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. 

 The first, simplest, and surest way to guarantee appellate jurisdiction under § 16(a) 

is to caption the motion in the district court as one brought under FAA §§ 3 or 4. See
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Fed. R. Civ. P. 10(a) (“Every pleading must have a caption with the court’s name, a title, 

a file number, and a Rule 7(a) designation.”) (emphasis added). This simple rule should 

dispose of the vast majority of cases in this area, and those hoping to avail themselves of 

the immediate appeal provided for in the FAA would do well to follow it. See, e.g., 

Bombardier, 333 F.3d at 253 (“Under the plain language of Section 16, the district 

court’s order denying the Rule 12(b)(6) motion to dismiss is not one of those enumerated 

under Section 16(a)(1) or (2), allowing for interlocutory appeal, and therefore, this court 

lacks jurisdiction to consider this appeal.”). Failure to caption a motion to compel 

arbitration and stay litigation as a motion brought under the FAA—the type of failure on 

display in this case—dramatically reduces the chances that an appellate court will find it 

has jurisdiction to review the denial of such a motion. 

 Given our expressed preference for bright-line rules, an approach that looks 

exclusively to the caption of a motion may seem tempting, but it would be unworkable, 

for two reasons. First, we feel that to look only at the caption of a motion would violate 

the spirit of notice pleading embodied in our Federal Rules of Civil Procedure. See

Robbins v. Oklahoma, 519 F.3d 1242, 1249 (10th Cir. 2008) (“Context matters in notice 

pleading.”) (quoting Phillips v. County of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008)). 

Second, a caption-only approach could create incentives for litigants to “game” the 

captions of their motions in an effort to gain an interlocutory appeal where none is 

warranted. Therefore, while in the vast majority of cases the caption will go most of the 

way toward answering the question, we feel that it is not dispositive. 
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If a motion denied by the district court is not explicitly styled as a motion under 

the FAA, or the court suspects that the motion has been mis-captioned in an attempt to 

take advantage of § 16(a), the court must look beyond the caption to the essential 

attributes of the motion itself. Cf. Pimentel, 477 F.3d at 1153 (“[I]n deciding whether a 

district court order ‘granting’ an injunction is appealable under § 1292(a)(1), we consider 

the substance rather than the form of the motion and caption of the order.”). The goal of 

this inquiry is to determine whether it is plainly apparent from the four corners of the 

motion that the movant seeks only the relief provided for in the FAA, rather than any 

other judicially-provided remedy. To do so, the court should look to the relief requested 

in the motion. If the essence of the movant’s request is that the issues presented be 

decided exclusively by an arbitrator and not by any court, then the denial of that motion 

may be appealed under § 16(a). See, e.g., Fit Tech, 374 F.3d at 6 (“[Movant] clearly 

argued to the district court that under the purchase agreement the accountant had sole 

authority to resolve all issues.”) (emphasis in original). 

If, on the other hand, the movant in the district court requests a judicial remedy 

that is inconsistent with the position that the issues involved may be decided only by the 

arbitrator, the movant is no longer proceeding exclusively under the FAA and has 

forfeited their right to interlocutory review under § 16(a). See, e.g., Wabtec, 525 F.3d at 

140 (“Rather than affirmatively seek arbitration in accordance with the agreement, 

[movant’s] motion focused on preventing [non-movant] from resolving any dispute in the 

courts, in accordance with the agreement’s provision that disputes would be settled 
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‘without recourse to the courts.’”). 

 E. Application to PDC’s Appeal

 Under the test as we have articulated it, PDC’s motion does not meet the criteria to 

support jurisdiction under § 16(a). PDC styled its motion as a Rule 12 motion to dismiss, 

rather than a motion under §§ 3 or 4 of the FAA to stay litigation and compel arbitration. 

Thus, under the first step of our analysis, it does not qualify for interlocutory appeal. As 

to the second step of the analysis, in the section of its motion related to the arbitration 

agreement, PDC asserted that “Plaintiff’s Complaint should be dismissed . . . because 

Plaintiff agreed to arbitrate all claims relating to his employment with [PDC].” (App. at 

33.) In the conclusion of its memorandum in support of the motion, PDC asked the court 

to “dismiss Plaintiff’s complaint.” (Id. at 66.) This is a request for judicial relief in the 

form of dismissal, rather than a request that the court refer the case to an arbitrator to 

decide the issues. Therefore, the essence of PDC’s motion was not for relief under the 

FAA, and so no § 16(a) appellate jurisdiction exists over the denial of that motion. 

 To be sure, PDC did mention that the court might compel arbitration in one 

sentence of its memorandum, and did cite to one Third Circuit case addressing §§ 3 and 4 

of the FAA. But these two offhand references do not serve to make it plainly apparent 

that the essence of the motion is a request for relief under the FAA. Therefore, we find 

that we do not possess jurisdiction to review the district court’s denial of PDC’s motion 

to dismiss Conrad’s Complaint. 
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Conclusion

 For the foregoing reasons, we DISMISS this appeal for lack of jurisdiction and 

REMAND to the district court for further proceedings.