PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 21-2742

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R AND C OILFIELD SERVICES LLC,

Appellant

v.

AMERICAN WIND TRANSPORT GROUP LLC

______________

Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. No. 2-19-cv-01201)

U.S. District Judge: Honorable William S. Stickman, IV

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Submitted Under Third Circuit L.A.R. 34.1(a)

July 6, 2022

______________

 

Before: SHWARTZ, KRAUSE, and ROTH, Circuit Judges.

(Filed: August 15, 2022)
2

Alicia M. Schmitt

Bruce E. Stanley

Stanley & Schmitt

322 Richland Lane

Pittsburgh, PA 15208

Counsel for Appellant

William B. Pentecost, Jr.

Cipriani & Werner

650 Washington Road

Suite 700

Pittsburgh, PA 15228

Counsel for Appellee

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OPINION OF THE COURT

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SHWARTZ, Circuit Judge.

R and C Oilfield Services LLC (“R&C”) was ordered to 

arbitrate its dispute with American Wind Transport LLC and, 

seventeen months later, told the District Court that it had no 

plans to do so. As a result, the District Court dismissed the 

case with prejudice pursuant to Federal Rule of Civil Procedure 

41(b) for failure to prosecute. R&C asks us to review both the 

Rule 41(b) order and the interlocutory order compelling 

arbitration, after it took no action to seek interlocutory review 

as permitted under the Federal Arbitration Act (“FAA”) and 

steadfastly refused to proceed to arbitration. Under those 

circumstances, prudence counsels against merging the
3

interlocutory order with the final Rule 41(b) order. As a result,

the interlocutory order is not part of the final order, and we 

therefore lack jurisdiction to review it. As to the Rule 41(b) 

order, the District Court did not abuse its discretion in 

dismissing the case and so we will affirm.

I

A

R&C is a very small family corporation, run by Robert 

Fleming and his stepson, Wuttichai Timula. Fleming and 

Timula are R&C’s only employees. R&C entered an 

agreement to haul equipment for American Wind. The 

agreement contained an arbitration clause that provides:

any claim, dispute or controversy including, but 

not limited to the interpretation of any federal 

statutory or regulatory provisions purported to be 

encompassed by this Agreement; or the 

enforcement of any statutory rights emanating or 

relating to this Agreement shall be resolved on 

an individual basis (and not as part of a class 

action) exclusively between Contractor and 

Carrier by final and binding arbitration to be held 

in Allegheny County, Pennsylvania before the 

American Arbitration Association (“AAA”).

App’x 39.1

 

1 The arbitration clause does not apply to claims arising 

out of or related to the agreement’s confidentiality/noncompete provision or American Wind’s actions to collect 

deficit balances, nor does it contain a delegation clause 
4

R&C alleges that American Wind failed to make certain 

agreed-upon detention payments. The missing payments 

resulted in a cash shortfall to R&C, forcing it to sell its trucks. 

Fleming and Timula continued to haul equipment for 

American Wind using these trucks but did so for the trucks’ 

new owner.

B

R&C filed suit in federal court, asserting that American 

Wind breached the agreement by failing to make the payments. 

American Wind moved to dismiss the complaint or stay the 

case based on the agreement’s arbitration provision. R&C 

opposed the motion, contending that the arbitration clause was 

unenforceable under New Prime v. Oliveira, 139 S. Ct. 532 

(2019), because R&C is a transportation worker operating 

under a contract of employment and thus exempt from the 

FAA. R&C also argued that the arbitration provision was 

unconscionable and therefore unenforceable. 

The District Court denied American Wind’s motion to 

dismiss but granted the alternative motion to compel 

arbitration and stayed the case under § 3 of the FAA, 

concluding that New Prime did not deprive the Court of the 

authority to compel arbitration because the agreement was a 

vendor-vendee contract between two businesses, rather than a 

contract of employment. R&C Oilfield Servs., LLC v. Am. 

Wind Transport Grp., LLC, 447 F. Supp. 3d 339, 347-50 (W.D. 

Pa. 2020). The Court did not address R&C’s challenge to 

requiring threshold questions of arbitrability to be decided by 

the arbitrator.
5

arbitrability on unconscionability grounds.2 

R&C filed a motion for reconsideration, arguing that the 

District Court erred in its application of New Prime, and that 

enforcement of the arbitration clause would result in manifest 

injustice. The Court denied the motion, and the case therefore 

remained stayed. 

More than a year later, the District Court ordered the 

parties to file a joint status report. The parties reported that 

“Plaintiff ha[d] not commenced an arbitration, and d[id] not 

plan to do so.” App’x 119. American Wind moved to dismiss 

the complaint with prejudice under Rule 41(b) because R&C 

refused to initiate arbitration and represented it would not do 

so. As a result of R&C’s own failure to prosecute its claim, 

American Wind argued that the Court need not address the 

factors set forth in Poulis v. State Farm & Fire Casualty, Co., 

747 F.2d 863, 868 (3d Cir. 1984). It alternatively argued that

2 R&C raised its unconscionability defense under 

Pennsylvania law in opposition to the motion to compel 

arbitration and in its motion for reconsideration, but the 

District Court did not address unconscionability. Although we 

will resolve this appeal on a different basis, we note that 

unconscionability presents a “gateway matter for judicial 

determination” that must be decided before granting a motion 

to dismiss or to compel arbitration because it concerns 

arbitrability. Puleo v. Chase Bank USA, N.A., 605 F.3d 172, 

180 (3d Cir. 2010) (collecting cases); see also Howsam v. 

Dean Witter Reynolds, Inc., 537 U.S. 79, 83 (2002); Nino v. 

Jewelry Exch., Inc., 609 F.3d 191, 200 (3d Cir. 2010); Parilla 

v. IAP Worldwide Servs., VI, Inc., 368 F.3d 269, 275-76 (3d 

Cir. 2004). 
6

the Poulis factors favored dismissal. R&C’s response to the 

motion to dismiss addressed neither Rule 41(b) nor the Poulis

factors, but instead repeated the arguments it made in its

motion to reconsider the order compelling arbitration. 

The District Court weighed the six Poulis factors and 

found: (1) R&C alone was responsible for the delay; (2) while 

American Wind suffered no prejudice from noncompliance 

with discovery, the case was at a standstill because R&C had 

no intention to arbitrate; (3) R&C refused to proceed with 

arbitration for seventeen months; (4) R&C’s refusal was 

willful; (5) sanctions other than dismissal, such as contempt, 

were unavailable because the Court could not force R&C to 

proceed with its claims, and R&C was not in contempt of the 

arbitration order; and (6) the merits of the underlying dispute 

were not before the Court because the only issue it had to 

decide was the proper forum for R&C’s claims. R&C Oilfield 

Servs., LLC v. Am. Wind Transport Grp., LLC, No. 2:19-cv1201, 2021 WL 3682712, at *1 (W.D. Pa. Aug. 19, 2021). The 

Court concluded that these factors strongly favored dismissal

and observed that dismissal is consistent with how other courts 

treated parties who failed to commence arbitration 

proceedings. Id. at *1-2 (citing Windward Agency, Inc. v. 

Cologne Life Reins. Co., 353 F. Supp. 2d 538, 540-43 (E.D. 

Pa. 2003), aff’d, 123 F. App’x 481 (3d Cir. 2005) 

(nonprecedential); James v. McDonald’s Corp., 417 F.3d 672, 

681 (7th Cir. 2005); and Renobato v. Compass Bank Corp., 

480 F. App’x 764, 766-68 (5th Cir. 2012) (nonprecedential)). 

Accordingly, the Court dismissed the case with prejudice. Id.

at *2.

R&C appeals. 
7

II3

We have jurisdiction over “all final decisions of the 

district courts of the United States.” 28 U.S.C. § 1291. This 

finality rule “preserves the proper balance between trial and 

appellate courts, minimizes the harassment and delay that 

would result from repeated interlocutory appeals, and 

promotes the efficient administration of justice.” Microsoft 

Corp. v. Baker, 137 S. Ct. 1702, 1712 (2017). 

Rule 3 of the Federal Rules of Appellate Procedure 

directs a party to “designate the judgment—or the appealable 

order—from which the appeal is taken.” Fed. R. App. P. 

3(c)(1)(B). R&C’s notice of appeal identifies the order on 

appeal as the District Court’s order dismissing the complaint 

with prejudice under Rule 41(b) for failure to prosecute, which

is a final order. See Blair v. Scott Specialty Gases, 283 F.3d 

595, 602 (3d Cir. 2002) (citing Green Tree Fin. Corp.-Ala. v. 

Randolph, 531 U.S. 79, 86 (2000)). 

A notice of appeal also encompasses all orders that 

“merge into the designated judgment or appealable order.” 

Fed. R. App. P. 3(c)(4). R&C asks us to review the 

interlocutory order compelling arbitration, and its brief focuses 

mainly on whether that order was proper. 

Interlocutory orders generally “merge” into the final 

judgment or order and usually can be reviewed on appeal from 

the final order. In re Westinghouse Sec. Litig., 90 F.3d 696, 

706 (3d Cir. 1996). Where the final order is one dismissing the 

3 The District Court had jurisdiction under 28 U.S.C. 

§ 1332.
8

case under Rule 41(b) for failure to prosecute, however,

interlocutory orders typically do not merge. See Sullivan v. 

Pac. Indem. Co., 566 F.2d 444, 445-46 (3d Cir. 1977) (per

curiam); Marshall v. Sielaff, 492 F.2d 917, 919 (3d Cir. 1974); 

see also Shannon v. Gen. Elec. Co., 186 F.3d 186, 192 (2d Cir. 

1999) (holding court lacked appellate jurisdiction over 

interlocutory order because “interlocutory orders do not 

properly merge with a final judgment dismissing an action for 

failure to prosecute”).

4 This exception to merger is consistent 

4 Other courts agree. See, e.g., Griggs v. S.G.E. Mgmt., 

LLC, 905 F.3d 835, 845 n.54 (5th Cir. 2018) (noting “courts 

prudently decline to review adverse interlocutory rulings 

because the matter under review is the dismissal itself” and 

limiting review to order dismissing under Rule 41(b) for failure 

to prosecute, not interlocutory order compelling arbitration);

Knoll v. Am. Tel. & Tel. Co., 176 F.3d 359, 366 (6th Cir. 1999) 

(declining to review interlocutory orders where dismissal for 

failure to prosecute was not an abuse of discretion); John’s 

Insulation, Inc. v. L. Addison & Assocs., Inc., 156 F.3d 101, 

105 (1st Cir. 1998) (holding “review of the merits” of 

interlocutory orders “is beyond the scope of this appeal”

because “interlocutory rulings do not merge into a judgment of 

dismissal for failure to prosecute”); Ash v. Cvetkov, 739 F.2d 

493, 497 (9th Cir. 1984) (“dismissal without prejudice because 

of failure to prosecute is not to be employed as an avenue for 

reaching issues which are not subject to interlocutory appeal as 

of right”); Bowe v. First of Denver Mortg. Invs., 613 F.2d 798, 

802 (10th Cir. 1980) (concluding court lacked “authority to 

review” order denying class certification after dismissal for 

failure to prosecute); see also Microsoft, 137 S. Ct. at 1713 

(recognizing an exception to the merger doctrine when a party 

voluntarily dismisses its case under Rule 41(a) to obtain 
9

with the finality interests inherent in § 1291. Indeed, if a party 

could “refuse to proceed whenever a trial judge ruled against 

him, wait for the court to enter a dismissal for failure to 

prosecute, and then obtain review” of an otherwise 

unappealable order, Marshall, 492 F.2d at 919, courts would 

“reward a party for dilatory and bad faith tactics,” John’s 

Insulation, Inc. v. L. Addison & Assocs., Inc., 156 F.3d 101, 

105 (1st Cir. 1998) (citation omitted); see also DuBose v. 

Minnesota, 893 F.2d 169, 171 (8th Cir. 1990) (concluding no 

merger of interlocutory orders because “failure to prosecute a 

claim should carry no . . . reward”). 

The same prudential considerations counsel against

reviewing the order compelling arbitration here.5

 R&C had 

multiple avenues to seek appeal of the District Court’s order to 

stay the proceedings and compel arbitration. R&C did not seek 

appellate review of an interlocutory order because “voluntarydismissal tactic[s]” invite “protracted litigation and piecemeal 

appeals” and explaining that if interlocutory orders merged 

with the dismissal, a plaintiff “need only dismiss her claims” 

to trigger an appeal of right, potentially allowing the plaintiff 

to “stop[] and start[] the district court proceedings with 

repeated interlocutory appeals”).

5 Because we are evaluating a Rule 41(b) involuntary 

dismissal order for failure to prosecute, we need not consider 

cases arising from voluntary dismissal orders, such as In re 

Pharmacy Benefits Managers Antitrust Litigation, 700 F.3d 

109, 114 (3d Cir. 2012), and Camesi v. University of 

Pittsburgh Medical Center, 729 F.3d 239, 245-46 (3d Cir. 

2013), or Microsoft’s impact on them nor do we consider a 

situation where a party sought a voluntary dismissal from the 

district court and its request was denied.
10

interlocutory review under § 1292(b) as the FAA provides,6

see 9 U.S.C. § 16(b), nor did it arbitrate its claims to 

completion and appeal to the extent permitted under the FAA, 

see 9 U.S.C. § 16(a)(3). Instead, R&C sat on its rights for a 

year and a half and told the District Court that it did not intend

to comply with the order, leaving the Court no choice but to 

involuntarily dismiss the complaint. See, e.g., Griggs, 905 

F.3d at 845 n.54 (“[Plaintiff] should not be permitted, through 

recalcitrance, to obtain the review of the arbitration clause that 

he was expressly denied in the district court, a review that 

Congress has foreclosed under the [FAA].”); Clowdis v. Colo.

Hi-Tec Moving & Storage, Inc., 604 F. App’x 678, 681-82

(10th Cir. 2015) (not precedential) (“[Plaintiff] seeks appellate 

review of the interlocutory order [compelling arbitration], with 

6 R&C’s contention that the District Court’s denial of its 

motion for reconsideration indicates the Court would not 

certify an appeal under § 1292(b) is speculative. Moreover, the 

standard to obtain certification under § 1292(b) differs from 

that to obtain reconsideration. Compare 28 U.S.C. § 1292(b) 

(requiring a showing that the order “involves a controlling 

question of law as to which there is substantial ground for 

difference of opinion and that an immediate appeal from the 

order may materially advance the ultimate termination of the 

litigation”), with Max’s Seafood Café ex rel. Lou-Ann, Inc. v. 

Quinteros, 176 F.3d 669, 677 (3d Cir. 1999) (noting that the 

purpose of reconsideration “is to correct manifest errors of law 

or fact or to present newly discovered evidence,” and a party 

seeking reconsideration must show at least one of the following 

to obtain relief: “(1) an intervening change in the controlling 

law; (2) the availability of new evidence . . . or (3) the need to 

correct a clear error of law or fact or to prevent manifest 

injustice”).
11

which he made no timely attempts to comply . . . and [of which 

he] did not request certification for an interlocutory appeal, . . . 

[so] [a]pplying the prudential rule, we decline to review the 

interlocutory order.”). As a result, the order compelling 

arbitration does not merge into the final order. Because the 

interlocutory order does not merge into the final order, it is 

outside the notice of appeal and we lack jurisdiction to review 

it. The only order we may review is the District Court’s Rule 

41(b) order.

III7

Courts possess inherent power to “manage their own 

affairs so as to achieve the orderly and expeditious disposition 

of cases.” Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 

(1962); cf. United States v. Wright, 913 F.3d 364, 374 n.11 (3d 

Cir. 2019) (acknowledging that Link permits a court to dismiss 

a civil case to prevent delays and court congestion). This 

includes the authority to dismiss a case for lack of prosecution. 

Link, 370 U.S. at 630. A court does not abuse its discretion in 

dismissing for failure to prosecute where a litigant’s conduct 

has made adjudication impossible. Doe v. Megless, 654 F.3d 

404, 411 (3d Cir. 2011); see also Guyer v. Beard, 907 F.2d 

1424, 1430 (3d Cir. 1990) (observing that where a litigant’s 

position “made adjudication of the case impossible,” “any 

lesser sanction [than dismissal] would not have furthered the 

interests of justice”). Thus, a district court need not balance 

the Poulis factors before dismissing a case with prejudice when 

7 We review a court’s order to dismiss under Federal 

Rule of Civil Procedure 41(b) for abuse of discretion. 

Hildebrand v. Allegheny Cnty., 923 F.3d 128, 131 (3d Cir. 

2019). 
12

a litigant willfully refuses to prosecute after receiving an 

adverse ruling. See Spain v. Gallegos, 26 F.3d 439, 454 (3d 

Cir. 1994) (“A party disappointed with a court’s ruling may not 

refuse to proceed and then expect to obtain relief on appeal 

from an order of dismissal or default.”). 

The District Court did not abuse its discretion in 

dismissing the case with prejudice pursuant to Rule 41(b) 

following R&C’s inaction for more than a year and clear 

statement that it had no plans to pursue arbitration. In its 

opposition to American Wind’s Rule 41 motion to dismiss, 

R&C simply repeated that it believed the arbitration clause was 

unenforceable and expressed concerns about the expense and 

futility of arbitration. R&C’s belief and concern, however, 

does not excuse it from either complying with the order or 

promptly seeking review. See 9 U.S.C. § 16. It did neither. 

The Court, therefore, soundly exercised its discretion in 

dismissing this case. Link, 370 U.S. at 630; see also James, 

417 F.3d at 681 (dismissing complaint where party refused to 

comply with an order compelling arbitration because “[o]nce a 

party invokes the judicial system by filing a lawsuit, it must 

abide by the rules of the court; a party can not decide for itself 

when it feels like pressing its action” (quoting GCIU Emp’r 

Ret. Fund v. Chi. Trib. Co., 8 F.3d 1195, 1198-99 (7th Cir. 

1993))); Spain, 26 F.3d at 454 (holding no abuse of discretion 

where court dismissed remaining counts for failure to 

prosecute after litigant “decided not to proceed” following an 

adverse ruling); Doe, 654 F.3d at 411 (holding no abuse of 

discretion in dismissing action where party refused to file a 

complaint using his real identity after court denied motion to 

proceed anonymously); Guyer, 907 F.3d at 1430 (holding no 

abuse of discretion in dismissing action where party was given 

several chances to sign a limited power of attorney form and 
13

refused to do so, “ma[king] adjudication of the case 

impossible”). Accordingly, we will affirm the District Court’s 

dismissal order.

8

IV

For the foregoing reasons, we will affirm.

8 Given R&C’s deliberate inaction, the District Court 

did not need to evaluate the Poulis factors, see Spain, 26 F.3d 

at 454-55. Thus, we need not decide whether the District Court 

correctly evaluated those factors.