PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-1799

CHORLEY ENTERPRISES, INC., a Maryland Corporation; MATTHEW 

CHORLEY; CARLA CHORLEY,

Plaintiffs - Appellees,

v.

DICKEY’S BARBECUE RESTAURANTS, INC., a Texas corporation; 

ROLAND DICKEY, JR.; JERREL DENTON,

Defendants - Appellants.

-----------------------

JAMES STROTHER CROCKETT, JR.,

Court-Assigned Amicus Counsel.

No. 14-1800

JUSTIN TROUARD; JESSICA CHELTON,

Plaintiffs - Appellees,

v.

DICKEY’S BARBECUE RESTAURANTS, INC., a Texas corporation; 

ROLAND DICKEY, JR.; JERREL DENTON,

Defendants - Appellants.

-----------------------
2

JAMES STROTHER CROCKETT, JR.,

Court-Assigned Amicus Counsel.

No. 14-1833

CHORLEY ENTERPRISES, INC., a Maryland Corporation; MATTHEW 

CHORLEY; CARLA CHORLEY,

Plaintiffs - Appellants,

v.

DICKEY’S BARBECUE RESTAURANTS, INC., a Texas corporation; 

ROLAND DICKEY, JR.; JERREL DENTON,

Defendants - Appellees.

-----------------------

JAMES STROTHER CROCKETT, JR.,

Court-Assigned Amicus Counsel.

No. 14-1834

JUSTIN TROUARD; JESSICA CHELTON,

Plaintiffs - Appellants,

v.

DICKEY’S BARBECUE RESTAURANTS, INC., a Texas corporation; 

ROLAND DICKEY, JR.; JERREL DENTON,

Defendants - Appellees.

-----------------------
3

JAMES STROTHER CROCKETT, JR.,

Court-Assigned Amicus Counsel.

Appeals from the United States District Court for the District 

of Maryland, at Baltimore and Greenbelt. Paul W. Grimm, 

District Judge. (1:14-cv-01650-GLR; 8:14-cv-01703-PWG)

Argued: March 26, 2015 Decided: August 5, 2015 

Before DIAZ, FLOYD, and THACKER, Circuit Judges.

Vacated and remanded by published opinion. Judge Floyd wrote 

the opinion, in which Judge Diaz and Judge Thacker joined.

ARGUED: Roger Brian Kaplan, GREENBERG TRAURIG, LLP, Florham 

Park, New Jersey, for Appellants/Cross-Appellees. Russell James 

Gaspar, COHEN MOHR LLP, Washington, D.C., for Appellees/CrossAppellants. James Strother Crockett, Jr., SPILMAN, THOMAS & 

BATTLE, PLLC, Charleston, West Virginia, as Court-Assigned 

Amicus Counsel. ON BRIEF: Aaron Van Nostrand, GREENBERG 

TRAURIG, LLP, Florham Park, New Jersey, for Appellants/CrossAppellees. Andrew K. Wible, C. Patteson Cardwell, IV, COHEN 

MOHR LLP, Washington, D.C., for Appellees/Cross-Appellants. 

Sarah B. Smith, SPILMAN, THOMAS & BATTLE, PLLC, Charleston, West 

Virginia, for Amicus Curiae.
4

FLOYD, Circuit Judge:

This appeal arises from a franchise dispute. Dickey’s, a 

national franchisor of quick-service barbeque restaurants,

claims several of its franchisees in Maryland breached their 

franchise agreements by running their restaurants poorly. The 

franchisees in turn claim that Dickey’s misrepresented start-up 

and other costs in violation of Maryland franchise law, thus 

never giving them a chance to succeed. At this stage in the 

proceeding, however, we must decide only whether the parties’ 

claims should be arbitrated, as Dickey’s argues, or heard in 

federal court in Maryland, as the franchisees contend.

This issue is governed by the parties’ franchise 

agreements. On one hand, the agreements require arbitration of 

all claims “arising out of or relating to” the agreements. J.A. 

553. On the other hand, the agreements state that the 

agreements “shall not require” the franchisees to waive their 

“right to file a lawsuit alleging a cause of action arising 

under Maryland Franchise Law in any court of competent 

jurisdiction in the State of Maryland.” J.A. 555.

The district court held that these provisions create an 

ambiguity that only a jury can resolve. In doing so, the 

district court appeared to conclude that the agreements set up 

an “either/or” scenario: either all the parties’ claims must go 

forward in arbitration, or they must all proceed in federal 
5

court. For the reasons set forth below, we will reverse. As a 

matter of law, the clear and unambiguous language of these 

provisions requires that the common law claims asserted by 

Dickey’s must proceed in arbitration, while the franchisees’ 

Maryland Franchise Law claims must proceed in the Maryland 

district court.

We recognize that requiring the parties to litigate in two 

different forums may be inefficient, and could lead to 

conflicting results. But this outcome is mandated by the 

Federal Arbitration Act, which requires piecemeal litigation 

where, as here, the agreements call for arbitration of some 

claims, but not others. Accordingly, we reverse with 

instructions to compel arbitration of the common law claims

only. We leave it to the district court’s discretion whether to 

stay the franchisees’ Maryland Franchise Law claims pending 

conclusion of the arbitration.

I.

Dickey’s Barbeque Restaurants, Inc. (Dickey’s), is a Texasbased franchisor of quick-service restaurants specializing in 

barbequed meats, with franchises operating throughout the United 
6

States.1 Both sets of plaintiffs in this collective appeal –

Justin Trouard and Jessica Chelton (“Trouard and Chelton”), and 

Matthew and Carla Chorley and their company, Chorley 

Enterprises, Inc. (“the Chorleys”) (collectively, the 

“Franchisees”) – previously operated Dickey’s restaurants in 

Maryland under franchise agreements signed in 2012.2

A.

The Franchisees’ respective relationships with Dickey’s

soured shortly after they opened their restaurants.

According to Dickey’s, the Chorleys violated their

franchise agreement by, among other things, failing to pass 

certain food safety inspections and receiving numerous customer 

complaints.3 As a result, Dickey’s sent several “notices of 

operational deficiencies” to the Chorleys throughout 2013 and 

early 2014. In response, the Chorleys asserted that Dickey’s 

fraudulently misrepresented the operating costs and estimated 

profits during negotiations for the franchise in violation of 

 1 For ease of reference, we refer to Dickey’s as the 

“Franchisor” when using its possessive form.

2 The Chorleys also signed a development agreement granting

them the right to open an additional restaurant, but this 

lawsuit was filed before they exercised that right.

3 Because this appeal turns on the terms of the parties’ 

agreements rather than the specifics of their allegations, we 

provide only a high-level summary of the parties’ allegations 

here.
7

the Maryland Franchise Registration and Disclosure Law, Md. Code 

Bus. Reg. §§ 14-201 to 14-233 (2015) (the “Maryland Franchise 

Law”).

Despite initially exploring whether the dispute could be 

mediated, Dickey’s ultimately brought arbitration proceedings 

against the Chorleys in Texas on May 1, 2014. In the 

arbitration demand, Dickey’s asserted three common law claims. 

Count I sought a declaratory order finding that the Chorleys 

breached their franchise agreement; Count II sought a 

declaratory order finding that the Chorleys breached their 

development agreement; and Count III sought damages for the 

Chorleys’ breach of both agreements. 

The Chorleys then brought suit in federal court in 

Maryland, seeking to enjoin the arbitration and asking the court 

to declare the arbitration provisions unenforceable. The 

Chorleys also brought affirmative claims for relief under the 

Maryland Franchise Law against Dickey’s, its owner, and its 

director of business development (collectively “Dickey’s” or the 

“Franchisor”). Dickey’s in turn opposed the motion for 

injunctive relief, and also filed a cross-motion to compel 

arbitration of all the Chorleys’ claims. In the alternative, 

Dickey’s sought to stay those claims pending arbitration.

Trouard and Chelton had a similar history with Dickey’s. 

Dickey’s contends that Trouard and Chelton mismanaged their 
8

restaurant, while Trouard and Chelton assert that Dickey’s 

violated the Maryland Franchise Law by misrepresenting start-up 

costs and estimated potential sales and profits. The parties 

initially discussed mediating their dispute, but Dickey’s 

ultimately filed arbitration in Texas, alleging breach-ofcontract and fraud claims.4 Trouard and Chelton then filed suit

in Maryland, seeking to enjoin the arbitration and requesting 

affirmative relief under the Maryland Franchise Law. Dickey’s 

opposed the motion for injunctive relief, and again filed a 

cross-motion to compel arbitration or, in the alternative, to

stay the action. 

The district court consolidated the Franchisees’ lawsuits 

for purposes of deciding these preliminary motions. The

arbitrations are currently being held in abeyance pending a 

final decision on the motions for preliminary injunctions and 

the cross-motions to compel arbitration.

B.

Both below and here on appeal, the parties’ arguments hinge 

on the interplay between two provisions in the Franchisees’ 

virtually identical franchise agreements: (i) the dispute 

 4 In its fraud claim, Dickey’s alleges that Trouard and 

Chelton falsified sales reports in an effort to misrepresent 

their restaurant’s financial performance.
9

resolution provisions in Article 27 and (ii) the Marylandspecific provisions in Article 29.

Article 27, which contains the “Arbitration Clause,”

requires the parties to first mediate their claims before 

proceeding to arbitration. If mediation fails to resolve the

disputes within 90 days after the mediator has been appointed, 

either party is entitled to seek arbitration at the office of 

the American Arbitration Association located nearest to the 

Franchisor’s corporate headquarters in Plano, Texas. In the 

Arbitration Clause, the parties also agreed to arbitrate “all 

disputes, controversies, claims, causes of action and/or alleged 

breaches or failures to perform arising out of or relating to 

this Agreement (and attachments) or the relationship created by 

this Agreement.” J.A. 553.5

Notwithstanding this Arbitration Clause, the agreements 

also provide that the “STATE SPECIFIC PROVISIONS” in Article 29 

“CONTROL.” J.A. 555. And Article 29.1, the “Inconsistent 

Provisions Clause,” provides that Maryland law “shall govern and 

control any contrary or inconsistent provisions” of the 

agreement, and that any such inconsistent provisions are 

“modified and amended” so that they comply with Maryland law. 

Id. Finally, Article 29.2(4), the “Maryland Clause,” states 

 5 The Chorleys’ development agreement contains a virtually 

identical arbitration clause. Id. at 585. 
10

that the “provisions of this Agreement shall not require you to 

waive your right to file a lawsuit alleging a cause of action 

arising under Maryland Franchise Law in any court of competent 

jurisdiction in the State of Maryland.” Id.6

The Maryland Clause is similar (but not identical) to 

Section 02.02.08.16(L)(3) of the Code of Maryland Regulations 

(the “Regulation”). Under the Regulation, a franchisor violates 

the Maryland Franchise Law if it requires a franchisee to 

“[w]aive the franchisee’s right to file a lawsuit alleging a 

cause of action arising under the Maryland Franchise Law in any 

court of competent jurisdiction in this State.” Md. Code Regs. 

02.02.08.16(L)(3) (2015).

C.

During the district court proceedings, the parties 

presented opposing interpretations of these clauses. The 

 6 Similarly, a “Maryland Addendum” to the Chorleys’ 

development agreement provides:

Any provision of this Agreement which 

designates jurisdiction or venue outside of 

the State of Maryland or requires you to

agree to jurisdiction or venue in a forum 

outside of the State of Maryland is void 

with respect to any claim arising under the 

Maryland Franchise Registration and 

Disclosure Law.

J.A. 597.
11

Franchisees claimed that the Maryland Clause fundamentally 

conflicts with the Arbitration Clause, thus rendering the 

Arbitration Clause void such that all of the parties’ claims 

must proceed in the district court. Dickey’s took a different 

view, arguing that the Maryland Clause is consistent with the 

Arbitration Clause because the Maryland Clause merely preserves

the Franchisees’ right to bring a claim under the Maryland 

Franchise Law in either arbitration or in court. Alternatively, 

assuming the Franchisees’ interpretation was correct, Dickey’s 

argued that the Federal Arbitration Act, (FAA), 9 U.S.C. § 1 et

seq., would preempt the Maryland Clause as an invalid 

prohibition on arbitration.

The district court concluded that both parties’ readings of 

the Arbitration and Maryland Clauses were plausible, thus 

rendering the agreements ambiguous. The district court noted 

that under the Franchisor’s interpretation, the “Arbitration 

Clause could function in harmony with the Maryland Clause.” 

J.A. 32. The court also recognized that under the Franchisees’ 

“view, the Maryland Clause . . . control[s], and [its] language 

refers to litigation only, not arbitration.” Id. Faced with 

these conflicting interpretations, the court reasoned that a 

jury must determine exactly which claims, if any, the parties 
12

agreed to arbitrate.7 Thus, the district court denied the 

parties’ respective motions without prejudice and ordered a jury 

trial on the meaning of the franchise agreements.8

Dickey’s then timely appealed the denial of its motions to 

compel, and the Franchisees cross-appealed from the denial of 

their motions for preliminary injunctive relief.

II.

Before we can address the merits, we must determine whether 

we have jurisdiction over these appeals. We ordinarily review 

only final decisions from the district courts. Rota-McLarty v. 

Santander Consumer USA, Inc., 700 F.3d 690, 696 (4th Cir. 2012).

And there is no dispute that the order at issue is not final. 

Thus, we typically would not have jurisdiction over the parties’ 

interlocutory appeals, absent an exception to the final order 

doctrine.

 7 Because the jury could have ultimately agreed with the 

Franchisor’s interpretation of the respective clauses, the 

district court did not reach the Franchisor’s alternative 

argument that the FAA preempts the Maryland Clause.

8 Although the district court also held that the Chorleys’

development agreement was similarly ambiguous “as to whether 

[the Chorleys] agreed to litigate Maryland Franchise Act claims 

as opposed to arbitrate them,” the court concluded that the 

Maryland Addendum was unambiguous with respect to venue. Thus, 

assuming a jury found arbitration appropriate under that 

agreement, the district court held that any such arbitration 

must take place in Maryland, not Texas.
13

A.

Section 16 of the FAA provides just such an exception. 9 

U.S.C. § 16.9 That section authorizes interlocutory appeals from 

a district court’s refusal to either stay litigation pending 

arbitration under Section 3 of the FAA or compel arbitration

under Section 4 of the FAA. 9 U.S.C. § 16(a)(1); see Dillon v. 

BMO Harris Bank, N.A., 787 F.3d 707, 713 (4th Cir. 2015) 

(stating that under Section 16, “an order that favors litigation 

over arbitration is immediately appealable, even if 

interlocutory in nature” (ellipsis omitted)). It is undisputed 

that the Franchisor’s motions to compel expressly sought to 

enforce the Arbitration Clause under Sections 3 and 4 of the 

FAA. The district court’s order also expressly denied the

motions. Thus, on the surface at least, this Court appears to 

have jurisdiction under 9 U.S.C. § 16(a)(1).

The Court-appointed amicus disagrees, arguing that this 

matter is not as straightforward as it seems. The amicus

reasons that Section 16(a)(1) applies only when a district court 

makes a final decision as to whether any or all of the claims 

between the parties must proceed to arbitration. Because the 

district court reserved a final ruling on the motions until 

after a jury trial, the amicus contends the order is not 

 9 The parties agree that the Arbitration Clause is governed 

by the FAA.
14

immediately appealable. In essence, the amicus believes an 

interlocutory appeal under Section 16 is always premature if a

district court orders a jury trial under Section 4 before 

deciding a motion to compel.

Although we appreciate the amicus’s views, this

interpretation is contrary to the FAA’s plain language. Section 

16(a)(1)(b) provides for interlocutory appeals of orders denying 

arbitration without stating whether those orders must be final. 

A separate subsection, Section 16(a)(3), provides for 

interlocutory review of any “final decision with respect to an 

arbitration.” 9 U.S.C. § 16(a)(3). If Section 16(a)(1)(b)

applies only to final orders, as the amicus contends, Congress 

would have said as much, as it did in Section 16(a)(3). See

Sandvik AB v. Advent Int’l Corp., 220 F.3d 99, 102-03 (3d Cir. 

2000) (finding it significant “that Congress decided to use the

word ‘final’ in one part of the statute, but declined to do so 

in the section that declares that orders denying motions to 

compel arbitration are indeed appealable”). Congress did not do 

so, of course, because grafting a finality requirement onto 

Section 16(a)(1)(b) would read that section out of the statute 

by making it redundant with Section 16(a)(3). See id.

The amicus’s interpretation would also frustrate the very 

purpose of Section 16. As we have previously recognized, 

Congress created appellate jurisdiction over non-final orders 
15

denying motions to compel arbitration “to effectuate a strong 

policy favoring arbitration.” Rota-McLarty, 700 F.3d at 696

(quotation omitted). Refusing to hear an appeal until after a 

jury trial would not further this policy. That is especially 

true where, as here, the arbitration agreements can be construed 

on their face as a matter of law, thereby making a jury trial 

unnecessary.

In short, the district court expressly “denied” the motions 

to compel arbitration “without prejudice.” J.A. 35. As we have 

previously held, and we reiterate again today, that is “all that 

is necessary to grant us appellate jurisdiction in this case.” 

Snowden v. Checkpoint Check Cashing, 290 F.3d 631, 636 (4th Cir. 

2002); see also Quilloin v. Tenet HealthSystem Phila., Inc., 673 

F.3d 221, 228 (3d Cir. 2012) (“[T]here can be no doubt that we 

have the authority to review an appeal from the District Court's 

order denying a motion to compel arbitration, irrespective of 

the fact that the order was denied without prejudice.”).10

 10 The amicus contends a different result is warranted under 

Chase v. Sidney Frank Importing Co., Inc., 133 F.3d 913, 1998 WL 

3609 (4th Cir. 1998) (per curiam). In that unpublished opinion, 

we concluded that an appeal was not ripe for review when the 

district court denied a motion to compel upon determining that 

additional factual development was necessary to decide the 

defendant’s claim that the arbitration clause had been 

fraudulently induced. Amicus’s reliance on Chase is misplaced 

for several reasons. Unlike in Chase, no further factual issues 

remain here – the Arbitration Clause may be construed as a 

matter of law. Additionally, Chase – which as an unpublished 

(Continued)
16

B.

The Franchisees also contend we have jurisdiction to hear 

their cross-appeal under 28 U.S.C. § 1292(a)(1), which 

authorizes interlocutory appeals of orders “refusing . . . 

injunctions.” We are not so sure. The Franchisees fail to 

address Section 16(b)(4) of the FAA, which expressly prohibits 

immediate review of interlocutory orders refusing to enjoin 

arbitration. 9 U.S.C. § 16(b)(4). Several of our sister 

circuits have concluded that Section 16(b)(4) trumps 28 U.S.C. 

§ 1292(a)(1), thus precluding immediate review of such orders. 

See Accenture LLP v. Spreng, 647 F.3d 72, 74-75 (2d Cir. 2011) 

(collecting cases). Section 16(b)(4) may also preclude us from 

exercising pendant appellate jurisdiction over the Franchisees’ 

cross-appeal under Swint v. Chambers County Commission, 514 U.S. 

35, 50-51 (1995) (suggesting that appellate courts may exercise 

jurisdiction over non-appealable issues that are “inextricably 

intertwined” with a question that is the proper subject of an 

immediate appeal).

We decline to decide these issues, however, because 

resolution of the Franchisor’s appeal will necessarily decide 

 

decision is not binding on this Court – appears to have been

wrongly decided, and is against the weight of published 

authority holding that all orders denying motions to compel 

arbitration are immediately appealable under the FAA.
17

the issue presented by the Franchisees’ cross-appeal: whether 

arbitration may proceed in Texas. Indeed, the appeal and crossappeal present two sides of the same coin: the Franchisor’s

appeal asserts that all the parties’ claims should be arbitrated 

in Texas; the Franchisees’ cross-appeal seeks to enjoin the 

arbitrations in Texas. We need not step out on a jurisdictional

limb as to the Franchisees’ cross-appeal when deciding the 

Franchisor’s appeal – which we clearly have jurisdiction over –

will resolve all the issues raised by the parties. Accordingly, 

we dismiss the cross-appeal as moot.

III.

A.

Having concluded that we have jurisdiction over the 

Franchisor’s appeal, we turn to the merits of the parties’ 

contentions. The central issue before us is whether the 

district court properly refused to compel arbitration after 

concluding that the Maryland Clause renders the Arbitration 

Clause ambiguous. We review this issue de novo. Noohi v. Toll 

Bros., Inc., 708 F.3d 599, 605 (4th Cir. 2013). “We also review 

de novo questions of state contract law concerning the validity 

of the parties’ arbitration agreement.” Muriithi v. Shuttle 

Express, Inc., 712 F.3d 173, 178 (4th Cir. 2013). 
18

As background, Section 2 of the FAA, its “primary 

substantive provision,” Moses H. Cone Mem’l Hosp. v. Mercury 

Constr. Corp., 460 U.S. 1, 24 (1983), makes agreements to 

arbitrate “valid, irrevocable, and enforceable, save upon such 

grounds as exist at law or in equity for the revocation of any 

contract.” 9 U.S.C. § 2. Sections 3 and 4 in turn “provide[] 

two parallel devices for enforcing an arbitration agreement: a 

stay of litigation in any case raising a dispute referable to 

arbitration, 9 U.S.C. § 3, and an affirmative order to engage in

arbitration, § 4.” Moses H. Cone, 460 U.S. at 22.

We will compel arbitration under Section 4 if: (i) the 

parties have entered into a valid agreement to arbitrate, and 

(ii) the dispute in question falls within the scope of the 

arbitration agreement. Muriithi, 712 F.3d at 179 (citation 

omitted). “The issue whether a dispute is arbitrable presents 

primarily a question of contract interpretation, requiring that 

we give effect to the parties’ intentions as expressed in their 

agreement.” Id. If we conclude that the parties intended to 

arbitrate a dispute, we must enforce that agreement according to 

its terms. CompuCredit Corp. v. Greenwood, 132 S. Ct. 665, 669

(2012). At the same time, it is well-settled that a “party 

cannot be required to submit to arbitration any dispute which he 

has not agreed to so submit.” Levin v. Alms & Assocs., Inc., 

634 F.3d 260, 266 (4th Cir. 2011) (quotation omitted). 
19

B.

In determining the parties’ intent, we apply ordinary state 

law principles governing the formation of contracts. First 

Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944 (1995).

And under applicable Maryland Law,11 we may “construe an 

ambiguous contract if there is no factual dispute in the 

evidence.” Pacific Indem. Co. v. Interstate Fire & Cas. Co., 

488 A.2d 486, 489 (Md. 1985); see also Sierra Club v. Dominion 

Cove Point LNG, L.P., 216 Md. App. 322, 334 (Md. Ct. Spec. App. 

2014) (stating that “the mere fact that the parties disagree as 

to the meaning does not necessarily render [a contract] 

ambiguous” when it could only have one meaning as a matter of 

law). In the proceedings below, neither party disputed any 

facts: they simply offered conflicting interpretations of the 

relevant agreements. Notwithstanding the district court’s 

decision to hold a jury trial then, this is precisely the type 

of issue we can decide as a matter of law.

 11 Although the “Governing Law” provisions state that the 

franchise agreements “shall be governed by and construed in 

accordance with the laws of the State of Texas,” J.A. 553, the 

parties agree that Maryland law applies. The district court 

also applied Maryland law in its order, and both parties cite to 

Maryland law on appeal. Accordingly, we will also apply 

Maryland law here. Cf. Cargill, Inc. v. Charles Kowsky Res., 

Inc., 949 F.2d 51, 55 (2d Cir. 1991) (finding waiver of 

Massachusetts choice of law provision when both parties relied 

on New York law before district court and on appeal).
20

The district court concluded that Section 4 of the FAA 

requires a jury trial whenever the parties present conflicting 

interpretations of an agreement. The right to a jury trial 

under Section 4 of the FAA, however, is not automatic. Rather, 

the party seeking a jury trial must make an unequivocal denial 

that an arbitration agreement exists — and must also show 

sufficient facts in support. Oppenheimer & Co., Inc. v. 

Neidhardt, 56 F.3d 352, 358 (2d Cir. 1995); see also Manning v. 

Energy Conversion Devices, Inc., 833 F.2d 1096, 1103 (2d Cir. 

1987).12

Not just any factual dispute will do. Rather, the party 

requesting a jury trial under Section 4 must provide sufficient 

evidence in support of its claims such that a reasonable jury 

could return a favorable verdict under applicable law. This 

standard is akin to the burden on summary judgment. See

Oppenheimer, 56 F.3d at 358 (comparing Fed. R. Civ. P. 56(c), 

(e) to the level of sufficient evidentiary facts needed for jury 

trial under 9 U.S.C. § 4). In other words, to obtain a jury 

 12 Although we have not previously addressed the standard 

for obtaining a jury trial under Section 4, we find the Second 

Circuit’s approach persuasive and so expressly adopt it here.

Cf. Glass v. Kidder Peabody & Co., 114 F.3d 446, 456 (4th Cir. 

1997) (recognizing that the Second Circuit’s decisions are 

“preeminent in arbitration law.”).
21

trial, the parties must show genuine issues of material fact 

regarding the existence of an agreement to arbitrate.13

Here, the Franchisees requested a jury trial, but did not 

dispute any material facts. Accordingly, the Franchisees are 

not entitled to a jury trial under Section 4 of the FAA. 

Rather, we will decide whether the parties intended to arbitrate 

their disputes as a matter of law based on the plain language of 

the agreements.

C.

1.

We first consider whether the parties intended to arbitrate 

the Franchisor’s common law claims. This question is governed 

by the Arbitration Clause, Ford v. Antwerpen Motorcars, ___ A.3d 

___, No. 68, 2015 WL 3937607, at * 3 (Md. July 13, 2015), which 

indicates that the Franchisees agreed to arbitrate “all 

disputes, controversies, claims, causes of action and/or alleged 

breaches or failures to perform arising out of or relating to 

 13 The policy behind the FAA supports this standard. If 

parties could request and receive jury trials merely by 

advancing conflicting interpretations of contractual language 

without any supporting extrinsic evidence, it would frustrate 

the very policies that the FAA is meant to promote – the swift 

and inexpensive alternative resolution of disputes outside of 

the judicial forum.
22

this Agreement (and attachments) or the relationship created by 

this Agreement.” J.A. 553.

The Franchisor’s breach of contract claims clearly “arise 

out of or relate to” the Franchise Agreements, and thus fall 

squarely within the Arbitration Clause. See Am. Recovery Corp. 

v. Computerized Thermal Imaging, 96 F.3d 88, 93 (4th Cir. 1996); 

see also Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S.

395, 398 (1967) (labeling as “broad” a clause that required 

arbitration of “any controversy or claim arising out of or 

relating to this Agreement”). Similarly, the Franchisor’s claim

that Trouard and Chelton fraudulently falsified sales reports 

falls within the scope of the Arbitration Clause because that 

claim arises directly from the franchise relationship created by 

the agreement. See Long v. Silver, 248 F.3d 309, 318 (4th Cir. 

2001) (holding that fraud claims must be arbitrated when a 

“significant relationship” exists between those claims and the 

contract in which the arbitration clause is contained). By the 

agreements’ plain language then, it seems clear that the 

Franchisees have agreed to arbitrate the Franchisor’s common law 

claims.

2.

The Franchisees make several unavailing arguments to avoid 

this result. First, the Franchisees contend that Dickey’s 
23

cannot arbitrate its dispute because it failed to first seek 

mediation as required by Article 27 of the franchise agreements. 

According to the Franchisees, mediation is a condition precedent 

to invoking the arbitration provision, and so the motions to 

compel should be denied for this reason alone.

As the Supreme Court has recently re-affirmed, however, 

arbitrators – not courts – must decide whether a condition 

precedent to arbitrability has been fulfilled. BG Group PLC v. 

Republic of Arg., 134 S. Ct. 1198, 1207-08 (2014); see also

Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 85-6 (2002).14 

Accordingly, the Franchisees’ argument must be decided by the 

arbitrator, not the court. Should the arbitrator decide that 

the Franchisees have no duty to arbitrate because Dickey’s 

failed to satisfy the mediation condition precedent, the parties 

may then seek relief in court under the FAA. See 9 U.S.C. §§ 9-

 14 Several circuits, including our own in an unpublished 

opinion, have refused to compel arbitration when the requesting 

party failed to comply with a precondition to arbitration. See

Perdue Farms Inc. v. Design Build Contracting Corp., 263 F. 

App’x 380, 383 (4th Cir. 2008) (“Where a condition precedent to 

arbitration is not fulfilled, a party to a contract does not 

have a right to arbitration.”); HIM Portland LLC v. Devito 

Builders Inc., 317 F.3d 41, 44 (1st Cir. 2003) (refusing to 

compel arbitration because “[u]nder the plain language of the 

contract, the arbitration provision of the agreement is not 

triggered until one of the parties requests mediation”); 

Kemiron-Atl. Inc. v. Aguakem Int’l Inc., 290 F.3d 1287, 1291 

(11th Cir. 2002) (same). All of these cases either predate, 

conflict with, or do not consider Howsam and BG Group, however, 

and thus do not control here. 
24

11 (providing procedure for parties to seek confirmation, 

vacatur, or correction of an arbitration decision). But that 

possibility is irrelevant at this stage in the proceeding.

3.

The Franchisees next argue that Article 29 “trumps” or 

“voids” the Arbitration Clause in its entirety. In support, 

they point to language in the agreements stating that the 

Maryland Clause applies “notwithstanding anything in th[e] 

Agreement in the contrary.” J.A. 555. We disagree. At least 

as to the common law claims, the Arbitration Clause is not 

contrary to the Maryland Clause. Indeed, the common law claims 

do not implicate the Maryland Clause in the first instance, 

because that Clause only applies to claims “aris[ing] under 

Maryland Franchise law,” and the Franchisor’s claims clearly do 

not arise under that Law. J.A. 555. Read together then, the 

Arbitration and Maryland Clauses demonstrate that the parties 

agreed to arbitrate all disputes except for the narrow carve-out 

for Maryland Franchise Law claims as set forth in the Maryland 

Clause.15

 15 A similar analysis applies to the Chorleys’ development 

agreement. The Maryland Addendum in the development agreement 

only requires Maryland venue for “any claim arising under the 

Maryland Franchise Registration and Disclosure Law.” J.A. 597. 

The Franchisor’s breach of contract claims do not arise under 

(Continued)
25

The Franchisees seek to conjure a conflict between the 

Maryland Clause and the Arbitration Clause by asserting that 

they will be forced to raise their Maryland Franchise Law claims 

as affirmative defenses in the arbitration. According to the 

Franchisees, a ruling in arbitration on their affirmative 

defenses under the Maryland Franchise Law could hypothetically 

have preclusive effect on the Maryland district court 

proceedings as to those claims. As the argument goes, such a 

ruling would effectively negate their right to bring suit in 

Maryland court under the Maryland Clause.

We reject this reasoning. As an initial matter, the 

Maryland Clause only states that the Franchisees have a right to 

“file a lawsuit” bringing Maryland Franchise Law claims in 

Maryland court; it does not say the Franchisees also have a 

right to bring all “affirmative defenses” based on the Maryland 

Franchise Law in court. By its plain language then, the 

Maryland Clause does not apply to the Franchisees’ affirmative 

defenses. And as set forth above, where the Maryland Clause is 

not implicated, the Arbitration Clause controls.

 

that law. Accordingly, to the extent those claims are based on 

the development agreement, they may be arbitrated in Texas. 

Conversely, the Chorleys’ Maryland Franchise Law claims under 

the development agreement may go forward in Maryland court, 

because the Maryland Addendum states that the Arbitration Clause 

is “void” as to those claims.
26

Moreover, the FAA requires the exact piecemeal litigation 

the Franchisees seek to avoid here, notwithstanding the 

potential for conflicting results. KPMG LLP v. Cocchi, 132 S. 

Ct. 23, 26 (2011) (per curiam) (“[W]hen a complaint contains 

both arbitrable and nonarbitrable claims, the Act requires 

courts to compel arbitration of pendent arbitrable claims when 

one of the parties files a motion to compel, even where the 

result would be the possibly inefficient maintenance of separate 

proceedings in different forums.”); see also In re Cotton Yarn 

Antitrust Litig., 505 F.3d 274, 285 (4th Cir. 2007) (“[F]ederal 

law requires piecemeal resolution when necessary to give effect 

to an arbitration agreement.”). Accordingly, we will not 

determine the preclusive effect of a hypothetical award at this 

stage. 

We note that if the parties had wanted to avoid potentially 

conflicting results – and thorny questions regarding the 

preclusive effect of a potential award16 – they could have agreed 

 16 Arbitration awards generally have the same preclusive 

effect as court orders, but only to the extent the parties agree

that the issues could be decided in arbitration. Cf. Dean 

Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 222 (1985) (“[I]t 

is far from certain that arbitration proceedings will have any 

preclusive effect on the litigation of nonarbitrable federal 

claims.”). As explained below, the Franchisees did not agree to 

arbitrate their Maryland Franchise Law claims. Thus, even if 

the arbitrator rejects the Franchisees’ affirmative defenses, 

that ruling arguably may not preclude the district court from 

reaching a contrary result on the Maryland Franchise Law claims. 

(Continued)
27

on a single forum for all their claims. But they did not. We 

will not rewrite their agreements to save them from their own 

self-imposed, inefficient arbitration procedures. Accordingly, 

we reverse with instructions for the district court to compel 

arbitration of the common law claims.

D.

Whether the parties also agreed to arbitrate the 

Franchisees’ Maryland Franchise Law claims is another matter. 

1.

Unlike the Franchisor’s common law claims, the Franchisees’ 

claims directly implicate the Maryland Clause. Again, that 

Clause states that nothing in the agreements shall “require you 

to waive your right to file a lawsuit alleging a cause of action 

arising under Maryland Franchise Law in any court of competent 

jurisdiction in the State of Maryland.” J.A. 555. Reading the 

Arbitration Clause as mandating arbitration of the Franchisees’ 

Maryland Franchise Law claims would necessarily “require” them 

to “waive” their right to file such claims in a “court of 

competent jurisdiction in the State of Maryland.” By its plain 

 

For the reasons set forth above, however, we will not decide 

this hypothetical question here.
28

language then, the Maryland Clause conflicts with the 

Arbitration Clause as to the Franchisees’ Maryland Franchise Law 

claims. And because the Maryland Clause applies 

“notwithstanding anything in th[e] Agreement in the contrary,”

id., we conclude that it trumps the more general Arbitration 

Clause as to Maryland Franchise Law claims, thus allowing the 

Franchisees to file those claims in Maryland court.

2.

Dickey’s disagrees, asserting that the Maryland Clause does 

not mean what it says. In its view, the Maryland Clause merely 

preserves the Franchisees’ right to pursue a claim – in court or 

in an arbitration – under the Maryland Franchise Law. In 

support, Dickey’s cites three cases purportedly holding that 

“words such as ‘lawsuit,’ ‘sue’ and ‘court’ do not negate [an]

arbitration provision, but merely preserve[] the right of a 

franchisee to pursue a claim – in court or in arbitration –

under Maryland Franchise Law.” App. Br. at 32 (citing Holmes v. 

Coverall N. Am., 649 A.2d 365 (Md. 1994); Zaks v. TES 

Franchising, No. 3:01CV2266JBA, 2004 WL 1553611 (D. Conn. July 

9, 2004); and CompuCredit, 132 S. Ct. at 669). Its reliance on 

these cases is misplaced. As set forth below, none of these 

cases addresses language even remotely similar to the Maryland 

Clause.
29

First, Holmes is readily distinguishable because it held 

only that the Maryland Franchise Law neither prohibits

arbitration nor requires Franchise Law claims to be brought in 

Maryland. 649 A.2d at 368.17 But the text of the Maryland 

Clause controls here, not the text of the Maryland Franchise 

Law. And the two are fundamentally different. Unlike the 

Maryland Franchise Law, the Maryland Clause does not merely use 

the words “sue” and “court” in creating a cause of action.18 

Instead, it expressly states that the “provisions of the 

Agreement,” including the Arbitration Clause, “shall not 

require” the Franchisees to waive their “right to file a lawsuit 

alleging a cause of action arising under the Maryland Franchise 

Law in any court of competent jurisdiction in this State.” J.A. 

555. 

In short, Holmes establishes that the Maryland Franchise 

Law grants franchisees a right to sue for violations of that 

Law, but does not say where that suit must take place; whereas 

 17 Although Holmes addressed a predecessor version of the 

Maryland Franchise Law, the differences between it and the 

current version are minor and do not impact the analysis here.

18 The Maryland Franchise Law’s “Civil Liability” section 

grants a franchisee the right to “sue” under the Law to “recover 

damages sustained by the grant of the franchise,” but does not 

state whether that suit must be brought in arbitration or in 

court. Md. Code Bus. Reg. § 14-227(b). It also states that a 

“court may order the person who sells or grants a franchise to: 

(1) rescind the franchise; and (2) make restitution to the 

person who buys or is granted a franchise.” Id. § 14-227(c) 

(emphasis added).
30

the Maryland Clause goes one step further and expressly grants 

franchisees a right to file that suit in Maryland. Accordingly, 

neither Holmes nor the Maryland Franchise Law shed any light on 

the meaning of the Maryland Clause.

Dickey’s next cites Zaks for the proposition that the 

Maryland Franchise Law does not prohibit arbitration. In doing 

so, Dickey’s again conflates the Maryland Franchise Law with the 

Maryland Clause. Zaks is also inapposite because, unlike here, 

the parties there executed an addendum to their agreement 

expressly stating that the arbitration provision overrode any 

provision permitting suit in Maryland. Zaks, 2004 WL 1553611, 

at *2 (“Notwithstanding anything to the contrary in the 

Franchise Agreement to which this Addendum is attached, the 

following terms and conditions shall control: . . . The 

Franchise Agreement requires binding arbitration.”). The 

opposite is true here: to the extent they conflict, the Maryland 

Clause controls “notwithstanding” the Arbitration Clause. J.A. 

555.

Dickey’s also contends that Compucredit, 132 S. Ct. at 669

construed language similar to that in the Maryland Clause. 

According to Dickey’s, the Supreme Court held that statutory 

language purportedly prohibiting “the waiver” of “the right to 

sue” in “court actions” only established a private right of 
31

action that could be brought in either arbitration or court. 

App. Br. at 36. Dickey’s overstates Compucredit’s holding.

In Compucredit, the Supreme Court considered whether a 

federal statute – the Credit Repair Organizations Act (CROA), 15 

U.S.C. §1679 et seq. – precludes arbitration of claims alleging 

violations of that statute. The plaintiffs contended that “the 

right to sue” language in the CROA’s disclosure provision, 15 

U.S.C. § 1679c(a), created a right to sue in court, not 

arbitration. The Supreme Court disagreed, but not because, as 

Dickey’s contends, that language could be read to permit 

arbitration. Instead, the Court held that the disclosure 

provision was entirely irrelevant because it does not “provide[] 

consumers with a right to bring an action in a court of law,” 

but rather provides only “the right to receive the [disclosure] 

statement, which is meant to describe the consumer protections 

that the law elsewhere provides.” 132 S. Ct. at 669-70. In 

contrast, the Maryland Clause does not merely provide notice of 

rights that are provided elsewhere; rather, as a contractual 

commitment, it expressly creates the right itself.19

 19 Upon concluding that § 1679c(a) was irrelevant, the Court 

then turned to the CROA’s civil liability provision, § 1679g,

which creates a private cause of action for violations of the 

statute. § 1679g uses terms like “action,” “class action,” and 

“court” in describing the cause of action. The Supreme Court 

concluded that this language only established a private right of 

action that could be brought in either arbitration or court. 

(Continued)
32

If anything, Compucredit supports the Franchisees’ position 

that the parties were free to select a Maryland court forum, 

notwithstanding the default position that Maryland Franchise Law 

claims can be brought in arbitration:

[J]ust as the contemplated availability of 

all judicial forums may be reduced to a 

single forum by contractual specification, 

so also can the contemplated availability of 

judicial action be limited to judicial 

action compelling or reviewing initial 

arbitral adjudication. The parties remain 

free to specify such matters, so long as the 

guarantee of [the CROA’s civil liability 

provision]--the guarantee of the legal power 

to impose liability--is preserved.

132 S. Ct. at 671 (emphasis in original). In the same way, 

here, Dickey’s and the Franchisees were free under the Maryland 

Franchise Law to arbitrate or litigate claims arising under the 

Law. But, by agreeing to the Maryland Clause, the parties 

expressly chose to litigate those claims in Maryland (while 

arbitrating all other claims in Texas). This choice is wholly 

consistent with Compucredit, which expressly notes that parties 

remain free to agree to forum-selection clauses, notwithstanding 

 

This holding is analogous to Holmes – both the CROA and the 

Maryland Franchise Law use words like “court” and “action” in 

describing their respective private statutory causes of action. 

In contrast to the CROA and the Maryland Franchise Law, however, 

the Maryland Clause goes further and expressly states that 

Franchisees have the right to file a suit in “any court of 

competent jurisdiction in this State.” Both the Maryland 

Franchise Law and the CROA lack this specific forum-selection 

language. Accordingly, Compucredit does not control this case.
33

civil liability provisions using words such as “court” and 

“action.”

Finally, Dickey’s argues that the Regulation does not 

prohibit arbitration, and therefore the Maryland Clause must not 

either. Again, we disagree. Although some of the language in 

the Clause tracks the Regulation, they are not identical. Both 

the Regulation and the Clause consist of a single sentence, but 

they differ in one fundamental respect: they contain different 

subjects. In the Regulation, the subject is the franchisor: it

is the franchisor who may not require the franchisee to waive 

their litigation rights. But in the Clause, the subject is the 

agreement itself: the “provisions of the agreement” cannot be 

read to require that franchisees waive their litigation rights.

This distinction matters. As the district court held, when 

the subject is the “franchisor” as in the Regulation, the 

Franchisees remain free to agree to arbitrate Maryland Franchise 

Law claims – the Regulation only prohibits forced or involuntary 

waivers.20 But when the subject is the “provisions of the 

 20 The district court made the distinction between voluntary 

and involuntary waivers in an effort to read the Regulation as 

consistent with the Maryland Franchise Law as required by

Maryland administrative law principles. See J.A. 28 (citing 

Lussier v. Md. Racing Comm’n, 684 A.2d 804 (Md. 1996)). The 

district court made this distinction in the context of rejecting 

the Franchisees’ argument that the Arbitration Clause conflicted 

with the Inconsistent Provisions Clause. The Franchisees do not 

rely on the Inconsistent Provisions Clause on appeal, however, 

(Continued)
34

agreement” as in the Maryland Clause, the parties have already 

reached an agreement as to arbitration. And here, that 

agreement consists of both the Maryland and Arbitration Clauses, 

which demonstrate that the parties intended to arbitrate all 

claims except for Maryland Franchise Law claims.

Put differently, under the district court’s interpretation 

of the Regulation, the Franchisees were free to waive their 

right to file suit in Maryland, as long as that waiver were 

voluntary. But the Maryland Clause demonstrates that the 

Franchisees did not agree to waive that right in the first 

instance, at least as to their Franchise Law claims. Rather, 

both parties agreed to litigate those claims in Maryland. 

Accordingly, we will not compel arbitration of the Franchisees’ 

Maryland Franchise Law claims. 

3.

Alternatively, Dickey’s contends that if the Maryland

Clause does prohibit arbitration of the Franchisees’ claims, 

then the Clause is preempted by the FAA. The district court did 

not reach this issue because it referred the threshold 

arbitrability question to a jury. Because we have decided this 

 

so we need not determine whether the district court’s 

distinction between voluntary and involuntary waivers was 

correct.
35

question in the Franchisees’ favor as a matter of law, we will 

address this alternative preemption argument here.

It is well established that the FAA “pre-empts application 

of state laws which render arbitration agreements 

unenforceable.” Volt Info. Scis., Inc. v. Bd. of Trs., 489 U.S. 

468, 472 (1989). Thus, where “state law prohibits outright the 

arbitration of a . . . claim . . . [t]he conflicting rule is

displaced by the FAA.” Marmet Health Care Ctr., Inc. v. Brown, 

132 S. Ct. 1201, 1203-1204 (2012) (citing AT&T Mobility LLC v. 

Concepcion, 131 S. Ct. 1740, 1747 (2011)); Saturn Distr. Corp. 

v. Williams, 905 F.2d 719, 722 (4th Cir. 1990). 

Our decision in Saturn is particularly instructive. 

There, Saturn — an automobile distributor — brought an action 

for declaratory and injunctive relief, claiming that the FAA 

preempted a Virginia statute prohibiting arbitration of claims 

arising out of auto dealership agreements. 905 F.2d at 721. 

Saturn submitted its dealer agreement to the Virginia 

Commissioner of the Department of Motor Vehicles, but the 

Commissioner refused to approve it in light of its arbitration 

clause. We concluded that the Virginia statute plainly

conflicted with the FAA and was thus preempted. Id. at 722.

Unlike in Saturn, however, the Maryland Clause is not a 

state law prohibiting arbitration. Rather, it is a contractual 

provision prohibiting arbitration. And it is generally well-
36

settled that when a “party to a contract voluntarily assumes an 

obligation to proceed under certain state laws, traditional 

preemption doctrine does not apply to shield a party from 

liability for breach of that agreement.” Epps v. JP Morgan 

Chase Bank, N.A., 675 F.3d 315, 326 (4th Cir. 2012) (citing Am. 

Airlines v. Wolens, 513 U.S. 219, 228 (1995)); see also Coll. 

Loan Corp. v. SLM Corp., 396 F.3d 588, 598 (4th Cir. 2005) 

(where parties to an agreement voluntarily assume federal 

standards in their bargained-for private contract, a party’s 

argument that enforcement of the agreement is preempted by that 

federal law “boils down to a contention that it was free to 

enter into a contract that invoked a federal standard as the 

indicator of compliance, then to proceed to breach its duties 

thereunder and to shield its breach by pleading preemption.

. . . [F]ederal supremacy does not mandate such a result.”).21 

 21 Dickey’s contends that these cases establish that “statemandated contract provisions are preempted if they contravene 

federal law.” App. Br. at 51. None of these cases actually 

held as much. Instead, they held only that parties cannot 

incorporate state law in their agreements, and then later seek 

to shield themselves from that law by pleading preemption. They 

did not address the inverse scenario — that is, whether stateimposed contractual commitments are preempted. The Franchisor’s 

citation to Wells Fargo Home Mortg., Inc. v. Neal, 922 A.2d 538

(Md. 2007), is particularly misplaced, because that decision 

does not even address preemption. Rather, it decided only 

whether a borrower could bring a breach of contract claim based 

on a lender’s purported failure to comply with federal 

regulations allegedly incorporated in the borrower’s deed of 

trust. And even if Neal did support the Franchisor’s argument, 

(Continued)
37

As the Third Circuit recently recognized, these cases have a 

“salutary ‘you’ve made your own bed, now lie in it’” quality. 

Del. & Hudson Ry. Co. v. Knoedler Mfrs., Inc., 781 F.3d 656, 

667-68 (3d Cir. 2015).

Although none of these cases address FAA preemption, their 

reasoning applies equally here. FAA preemption prevents states 

from carving out wholesale exceptions to arbitration. See

Concepcion, 131 S. Ct. at 1747. It does not prevent private 

parties from agreeing to litigate, rather than arbitrate, 

specific claims. Again, the parties were free under Maryland 

Franchise Law to either arbitrate or litigate the Franchisees’

claims. See Holmes, 649 A.2d at 368; see also Muriithi, 712 

F.3d at 179 (compelling arbitration of Maryland Franchise Law 

claims). As set forth in the Maryland Clause, they agreed to 

litigate the Maryland Franchise Law claims in Maryland. Nothing 

in the FAA preempts or prohibits the parties from making that 

choice.

Dickey’s argues this law does not apply because it did not 

voluntarily include the Maryland Clause in the agreements. 

Rather, Dickey’s asserts that both Maryland law and the Maryland 

Commissioner of Securities forced it to include the Clause in 

 

preemption is a matter of federal not state law, and so Neal

does not control here.
38

the agreements as a condition precedent to doing business in 

Maryland.22 We disagree. Dickey’s was not forced to do 

anything. If Dickey’s did not want to include the Maryland 

Clause, it had several options. It could have simply declined 

to do business in Maryland. Or, like the dealer in Saturn, it 

could have filed a declaratory action challenging the Maryland 

Commissioner of Securities’ position before including the 

Maryland Clause in its agreements. See Saturn, 905 F.2d at 721; 

see also Sec. Indus. Assoc. v. Connolly, 883 F.2d 1114 (1st Cir. 

1989) (finding that FAA preempted state law which was required 

to be incorporated in contracts, but only where challengers sued 

for a declaratory order before incorporating the provision in 

their contracts).

Dickey’s did neither, however. Instead, it chose to add 

the Maryland Clauses to its agreements so that it could reap the 

benefits of conducting its franchise business in Maryland. It 

then waited nearly two years after including the Maryland Clause

in its franchise agreements before challenging the state’s 

purported required inclusion of them. Simply put, Dickey’s had 

 22 In support, Dickey’s cites a declaration executed by the 

attorney who drafted the franchise agreements. Neither the 

declaration nor the parties’ briefing cites the applicable law 

mandating inclusion of the Maryland Clause in the agreements, 

and our research has not revealed any such law. The parties 

also dispute whether the declaration constitutes inadmissible 

hearsay. Because we conclude the declaration is irrelevant in 

the first instance, we need not address these issues.
39

multiple options other than agreeing to the Maryland Clause. In 

this scenario, we are comfortable holding Dickey’s to the terms 

of the agreements.

IV.

Finally, Dickey’s requests that we stay the Franchisees’ 

Maryland Franchise Law claims in the district court pending 

conclusion of the arbitration on its common law claims. The 

district court did not decide this issue because it did not 

decide whether arbitration should proceed at all. Whether to 

grant such a stay is a matter within the district court’s 

discretion, Am. Recovery Corp., 96 F.3d at 97, so we leave it to 

the district court to decide this matter in the first instance 

on remand.

V.

For the foregoing reasons, we vacate the district court’s 

order and remand for further proceedings.

VACATED AND REMANDED