PUBLISH UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ BOSC, INC.; THOMAS WAYNE HAYES, Plaintiffs Counter Defendants - Appellants,

v. BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF BERNALILLO, Defendant Counterclaimant - Appellee. No. 16-2031

________________ _________________ Appeal from the United States District Court for the District of New Mexico (D.C. No. 1:15-CV-01042-KG-LF)

________________ _________________ Jared M. Burden (Frederic Dorwart, with hi m on the brief) Frederic Dorwart, Lawyers, Tulsa, Oklahoma, for Plaintiffs Counter Defendants-Appellants. Clinton W. Marrs, Marrs Griebel Law, LTD., Albuquerque, New Mexico, for Defendant Counterclaimant-Appellee.

________________ _________________ Before TYMKOVICH , Chief Judge, BALDOCK , and BRISCOE , Circuit Judges.

________________ _________________ BALDOCK , Circuit Judge.

________________ _________________ FILED United States Court of Appeals Tenth Circuit 

### April 11, 2017
Elisabeth A. Shumaker Clerk of Court2 A New Mexico county board filed a lawsuit in state court agai nst its securities broker and registered agent. The board refrained, however, from serving process while it determined whethe r arbitration was available. The securi ties broker and agent nonetheless removed the case to federa l court and moved to dismiss the suit. Four days after briefing wa s complete and about three months after the board had filed suit, the board voluntar ily dismissed the case and f iled for arbitration. The securities broker and ag ent then filed this action to enjoin arbitration, arguing the board waived its right to de mand arbitration when it filed the state court action. The district court disagreed and instead gran ted the board’s counterclaim to compel arbitration. The broker and registered agent appealed the waiver issue. Exercising jurisdiction under 9 U.S.C. § 16(a)(3), we affirm.
I. In 2012 and 2013, BOSC, In c., a registered securities broker and member of the Financial Industry Regulatory Authority (FIN RA), and Thomas Haye s, one of BOSC’s registered representatives, recommended and sold certain investments to the Board of County Commissioners of the Co unty of Bernalillo, New Mexico (“the Board”). In July 2015, the Board filed a lawsu it in New Mexico state court against BOSC, Hayes, and others for allegedly selling it unsuitable i nvestments and recommending investments that conflicted with Bernalillo County’s liquidity n eeds, in violation of FINRA Rule 2111. The Board did not, however, se rve the petition on any of the defendants. According to the Declaration of Clinton Marrs, the Board’ s attorney, he refrain ed from serving the3 complaint because he had not yet “completed [his] inquiry into whether the Board was required or permitted by cont ract to arbitrate its claims.” R. at 31. In September 2015, BOSC and Hayes re moved the case to federal court and moved to dismiss under Federal Rule of Ci vil Procedure 12(b)(6). The Board opposed the motion. In October, four days after brie fing on the motion was complete and before the district court ruled on the motion, the Bo ard voluntarily dismissed the case without prejudice because the Board’s attorney was “satis fied that the Board could pursue its claims in arbitration.” R. at 32. Four days after that, the Board initiated FINRA arbitration. Less than three months had la psed from the time the Board filed the state court action to when it voluntarily dismissed it. In November 2015, BOSC and Hayes filed this federal lawsuit against the Board for preliminary and permanent injunctive relief in an attemp t to enjoin the Board from pursuing FINRA arbitration. BOSC and Hayes as serted that the Board waived its right to arbitration when it filed the state court actio n. The Board answered the complaint and filed a counterclaim for judgment compelling ar bitration. In response, BOSC and Hayes asked the district court for the opportunity to conduct discovery regarding the Board’s motivation for filing the state court action. The district court denied BOSC and Ha yes’ requests for injunctive relief and instead granted the Board’s counte rclaim to compel arbitration. The district court applied the factors from Peterson v. Shearson/Am erican Express, Inc. , 849 F.2d 464, 467–68 (10th Cir. 1988), to conclude the Board did not waive its option to arbitrate. The district4 court also denied the discovery request, expl aining that the Board’s motivation for filing the state court action was irrelevant to the Peterson factors. BOSC and Hayes appealed.
II. The parties do not dispute that the FINRA rules apply to them and would ordinarily permit the Board, as BOSC an d Hayes’ customer, the option to request arbitration. They also agre e that the Federal Arbitration Act (“FAA”) applies here. The primary issue is whether the Board waived its ri ght to arbitrate. We review the district court’s decision rejecting the waiver argument de novo but review the factual findings underlying that decision for clear error. In re Cox Enterprises, Inc. Set-top Cable Television Box Antitrust Litig. , 835 F.3d 1195, 1205 (10th Cir. 2016). The FAA’s primary s ubstantive provision declares that a written agreement to arbitrate “a contract eviden cing a transaction involving commerce . . . shall be 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. This provisi on reflects “a liberal federal policy favoring arbitration agreements,” and creat es “a body of federa l substantive law of arbitrability, applicable to any arbitration ag reement within the cove rage of the Act.” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp. , 460 U.S. 1, 24 (1983). “The Arbitration Act establishes that , as a matter of federal la w, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitrati on, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defens e to arbitrability.” Id. at 24–25. Section 3 of the FAA obliges courts to stay litigation on matters the partie s have agreed to arb itrate so long as the5 applicant for the stay is not in default in proceeding with arb itration, while § 4 authorizes a court that otherwise has subject matter jurisdiction to comp el arbitration. See 9 U.S.C. §§ 3 & 4. We have recognized two forms of waiver , although we have only ever applied the second form: (1) when a party intentionally relinquishes or abandons its right to arbitration; (2) when a party’ s conduct in litigation forecloses its right to arbitrate.
See In re Cox , 835 F.3d at 1205. The second form of waiver—based on a party’s conduct—came first in this Circuit. In Reid Burton Construction, Inc. v. Carpenters District Council of Southern Colorado , 614 F.2d 698 (10th Ci r. 1980), this Circuit’s “leading opinion” on waiver of the right to arbitrate, Hill v. Ricoh Americas Corp. , 603 F.3d 766, 772 (10th Cir. 2010), we explained there is “no set rule as to what constitutes a waiver or abandonment of the arbitration agreement; the question depends upon the facts of each case.” 61 4 F.2d at 702. We noted several factors useful in analyzing waiver, wh ich we later summarized in Peterson : (1) whether the party’s actions are incons istent with the right to arbitrate; (2) whether “the litigation machinery has been substantially invoked” and the parties “were well into preparatio n of a lawsuit” before the party notified the opposing party of an intent to arbitrate; (3) whether a party either requested arbitration enforcement close to the trial date or delayed for a long period before seeking a stay ; (4) whether a defendant seeking arbitration filed a counterclaim without asking for a stay of the proceedings; (5) “whether important intervening steps [e.g., taking advantage of judicial disc overy procedures not available in arbitration] had taken place”; and (6) whether the dela y “affected, misled, or prejudiced” the opposing party.
Peterson , 849 F.2d at 467–68 (altera tions in original) (quoting Reid Burton , 614 F.2d at 702). We do not apply the Peterson factors mechanically so th at “each factor is assessed6 and the side with the greater number of favor able factors prevails,” nor do we consider this list exhaustive or exclusive. Hill , 603 F.3d at 773. Instead, “these factors reflect principles that should guide courts in determining whether it is appropriate to deem that a party has waived its right to demand arbitration,” even when the party did not subjectively intend to do so. Id

. We then acknowledged the first form of waiver—based on a party’s intent—in Hill v. Ricoh in 2010, but we have yet to apply it in any case as the basis for our holding. We explained that “a party should not be pe rmitted to demand ar bitration when it has previously waived its right to arbitrate in th e narrow sense of waiver typically used in the criminal-law context, where a waiver is an ‘intentional relinquishment or abandonment of a known right.’” Hill , 603 F.3d at 773 (quoting United States v. Olano , 507 U.S. 725, 733 (1993)); see also In re Cox , 835 F.3d at 1205 (“A party can ‘subjectively’ waive its right to arbitration if it intentionally relinqu ishes or abandons that right; once it has done so, it has no right to demand arbitration later.” ). We commented that “[a] party’s conduct may evince such an intenti onal relinquishment,” such as when an employer refuses an employee’s repeated requests to arbitrate but then demands arbitr ation when she files suit. Hill , 603 F.3d at 773 (analyzing Brown v. Dillard’s, Inc. , 430 F.3d 1004 (9th Cir. 2005)). Such external conduct may reveal a party’s intentions. BOSC and Hayes first argue that the Bo ard intentionally waived its right to demand arbitration when it filed the state court lawsuit. They urge us to adopt a brightline rule that plaintiffs who later seek arb itration on the same issues have necessarily waived their right to arbitrate. Alternatively, they argue the Peterson factors support a7 finding that the Board waived its right to arbitrate by its conduct. While BOSC and Hayes primarily argue we may rule in their fa vor as a matter of law, they argue in the alternative that the district court erred in denying their request for discovery regarding why the Board filed the original state court acti on in the first place. We address each of these arguments in turn. A. BOSC and Hayes argue that the Board’s c onduct in filing the original state action evinces its intent to wa ive its right to arbitrate. They ur ge the Court to apply a bright-line rule, rather than the Peterson factors, and hold that a party who files litigation intentionally abandons its right to arbitrate. They assert other circuits have so held. The cases BOSC and Hayes cite in sup port of their bright-line rule do not convince us and, in fact , do not support such a strict rule under federal law at all. Take for example their reliance on th e Second Circuit’s 1933 case Kraus Brothers Lumber Co.
v. Louis Bossert & Sons , 62 F.2d 1004 (2d Cir. 1933). There, the plaintiff corporation sued the defendant corporation in state c ourt for the purchase price of some “small timbers.” 62 F.2d at 1005. The defenda nt answered, alleged several defenses and counterclaims, and offered to submit the c ontroversy to arbitration per the parties’ agreement. The plaintiff noticed the case for trial, later move d unsuccessfully for a voluntary dismissal, and then atte mpted to accept the o ffer to arbitrate. The plaintiff then filed a suit in federal court to enforce the contract’s arb itration clause. The defendant argued the plaintiff waived its ri ght to arbitrate, but the dist rict court nonetheless issued an order compelling arbitration. The Second Circuit affirmed. It first noted that “[t]he8 state action was indeed a repudiation of the pl aintiff’s own promise to arbitrate; it gave the defendant an election, taking the plaintiff at its word, to put an end to the arbitration clause, or to insist upon performance.” Id. at 1006. But because the defendant never expressly withdrew its offer to arbitrate, the plaintiff accept ed the offer when it tried to discontinue the state court case and pursue arbitration. Id. The case turned on the defendants’ offer to arbitrate, a situation admittedly not pres ent here, but it shows that the Second Circuit considers the circumstances pres ented rather than applying a bright-line rule against plaintiffs who la ter request arbitration. Subsequent Second Circuit de cisions bear this out, with each case turning on the amount of litigation conducted after fili ng the case and the length of delay. See Chatham Shipping Co. v. Fertex S.S. Corp. , 352 F.2d 291, 293 (2d Cir. 1965) (“The cases are altogether clear that the mere filing of an action for damages on a contract does not preclude a subsequent ch ange of mind in favor of arbitra tion therein provid ed; the earliest point at which preclusion may be found is when the other party files an answer on the merits.” (internal citations omitted)); Farr & Co. v. Cia. Interc ontinental de Navegacion de Cuba, S.A. , 243 F.2d 342, 348 (2d Cir. 1957) (hol ding that the plaintiff did not waive its right to arbitration when it filed suit b ecause “the libel never got beyond the initial stage of filing; no party was served or entered appearance; no property was attached, no answer filed”); cf. Kulukundis Shipping Co., S/A, v. Amtorg Trading Corp. , 126 F.2d 978, 989 (2d Cir. 1942) (“A plaintiff who brought suit on a contract, without seeking to avail himself of its arbitration clause, has been he ld to have waived hi s rights thereunder, so that he could not subsequently, after a long delay , ask the court . . . to stay the action9 pending arbitration. Within limits , much might perhaps be said for such a holding, on the ground that a party should not thus first set in motion judicial proceedings and then arrest them.” (emphasis added)). Likewise, the Seventh Circuit case that BOSC and Hayes cite does not create a bright-line rule but rather a presumption that may be overcome. In Cabinetree of Wisconsin, Inc. v. Kraftmaid Cabinetry, Inc. , 50 F.3d 388 (7th Cir. 1995), the Seventh Circuit held that “an election to proceed befo re a nonarbitral tribunal for the resolution of a contractual dispute is a presumptive waiver of the right to arbitrate.” Id. at 390 (emphasis added). In that case, the Seventh Circuit was faced with a defendant who removed to federal court, demanded and re ceived almost two thousand documents in discovery but “dragged its heels in responding” to the plaintiff’s discovery demands, and waited about five months after a trial date was set before demanding arbitration. Id. at 389. This conduct “manifested an intention to resolve the dispute through the processes of the federal court,” and the defendant did not rebut the pr esumption that it had waived its right to arbitrate by electing to proceed judicially. Id. at 390, 391. But the Seventh Circuit mentioned several situat ions in which a party that i nvokes judicial process might nonetheless retain its right to arbitrate: We have said that invoking judicial process is presumptive waiver. For it is easy to imagine situations—they have arisen in previous cases—in which such invocation does not si gnify an intention to pr oceed in a court to the exclusion of arbitration. There might be doubts about arbitrability, and fear that should the doubts be resolved a dversely the statute of limitations might have run. Some issues might be arbitrable, and others not. The shape of the case might so alter as a result of unexpected developments during discovery or otherwise that it might be come obvious that the party should be relieved from its waiver and arbitr ation allowed to proceed. We need10 not try to be exhaustive. It is enough to hold t hat while normally the decision to proceed in a ju dicial forum is a waiver of arbitration, a variety of circumstances may make the case a bnormal, and then the district court should find no waiver or should permit a previous waiver to be rescinded. In such a case prejudice to the other party, the pa rty resisting arbitration, should weigh heavily in th e decision whether to send the case to arbitration, as should the diligence or lack thereof of the party seeking arbitration—did that party do all it could reasonably have been expected to do to make the earliest feasible determination of wh ether to proceed judicially or by arbitration? Id. at 390–91 (citations omitted) (second emphasis added). The Seventh Circuit revisited its presumptive waiver rule in Grumhaus v. Comerica Securities, Inc. , 223 F.3d 648 (7th Cir. 2000). Ther e, the plaintiffs filed suit in state court and litigated their claims for several months. Id. at 651. The state court dismissed the complaint, but the plaintiffs wa ited several more months before filing a suit in federal court to formally demand arbitration. Id. The plaintiffs argued that they “never submitted their state court action for judgment,” but the Seventh Circuit pointed out that, by filing suit (and, we assume, by serving proce ss), the plaintiffs would be entitled to a default judgment if the defend ants failed to resp ond to the suit. Id. at 651– 52. The Seventh Circuit thus presumed the pl aintiffs waived their right to arbitrate by filing the state court action and, because no special circumstances ex isted to rebut that presumption, held that their lack of diligence in seeking arbitration counseled against absolving them of their waiver. Id. at 653. BOSC and Hayes’ remaining cases, which rely on state rather than federal law, do not offer persuasive reasoning, if any reasoning at all, for adopting a bright-line rule. In Quality Improvement Consu ltants, Inc. v. Williams , 129 F. App’x 719 (3d Cir. 2005)11 (unpublished), the Third Circ uit applied Minnesota law a nd concluded the plaintiff “substantially invoked litigation by filing a complaint in federal court and thus waived its right to arbitrate at least those claims cont ained in the complaint,” without offering any further analysis. Id. at 722. And in WorldSource Coil Coati ng, Inc. v. McGraw
Construction Co. , 946 F.2d 473 (6th Cir. 1991), the Si xth Circuit applied Illinois law to hold that, “[u]nless authorized by contract, subm ission of arbitrable issues in a judicial proceeding constitutes a waiver of the right to compel ar bitration regardless of the prejudice to the other party.” Id. at 479. While the majority addressed conduct inconsistent with the right to arbitrate, we find the dissent’s reas oning more compelling as to why simply filing a lawsuit sh ould not constitute automatic waiver: Under the rule announced by the majority, a party wo uld be deemed to have waived arbitration if it filed a compla int containing arbitrable issues and then the following day, upon reconsid eration, dismissed the matter pursuant to Fed. R. Civ. P. 41(a)(1). Such a result is clearly anomalous. The opposing party might not even have been served with the complaint. . . . Obviously, no Illinois courts [sic] has, or would, find that such actions constitute a waiver. If the mere filing of a complaint followed by immediate dismissal does not co nstitute submission of issues, some line drawing must be done. I conclude that in the contex t of waiver of arbitration, “submission of issues” under Illinois law means that the court is called on to decide the issue. Accordingly, th e mere filing of a complaint would not constitute submi ssion of an issue. A trial or dispositive motion would, on the other hand, constitute submission of an issue because the court (or jury) would be called on to decide an issue. Id. at 483 (Gadola, J., dissenting). We decline to adopt a bright-line rule of waiver just because a party has filed a lawsuit, primarily because the circumstances of this case demonstrate how such a rule would not be wise. Although the Board took a step towa rds choosing litigation over12 arbitration when it filed the original stat e-court action, it stopped short of voluntarily submitting the issues to a cour t for decision by refraining from serving process on BOSC and Hayes. If the Board had done nothing else after filing, it would not have been entitled to default judgment but would have instead risked dismi ssal for failure to prosecute. See NMRA Rule 1-004 (requirin g plaintiffs to serve process “with reasonable diligence”); NMRA Rule 1-041( E)(2) (providing that a c ourt may, on its own motion, dismiss without prejudice an ac tion if the party filing the ac tion “has failed to take any significant action in connection with the action or claim within the previous one hundred and eighty (180 days)”). And the Board dismissed the action before a court could rule on the motion to dismiss, a motion that BOSC and Hayes took it upon themselves to file even when they had not yet be en served. The Board did not voluntarily submit its claims to a court for decision; instead the Board attempted to prevent a court from deciding those claims while it determined if arbitration was available. We decline the invitation to create a bright-line rule simply because of the Board’s prior status as a plaintiff. 1

B. We now turn to the Peterson factors to determine whether the Board waived its right to arbitrate through its conduct. Th ose factors include (1) whether the Board took actions inconsistent with its right to arbitrate; (2) th e extent to which the Board substantially invoked the litiga tion machinery; (3) the length of the Board’s delay before requesting arbitration and nearness to tria l; (4) the claims the Board filed before

1 This is not to say that serving process is the magic moment of waiver. As we do here, we will consider the facts of each case.13 requesting arbitration 2 ; (5) whether important intervening steps had taken place, such as the Board taking advantage of judicial pr ocedures unavailable in arbitration; and (6) whether the delay affected, misl ed, or prejudiced BOSC and Hayes. 3 Our overarching consideration is “w hether the party now seeki ng arbitration is improperly manipulating the judicial process.” Hill , 603 F.3d at 773. We hold the Board did not waive its right to arbitrate. Fi rst, the Board took some actions inconsistent with its right to demand arbitration: it filed the state court action involving the claims it now s eeks to arbitrate and further f iled a response to the motion to dismiss. But it did not go so far as to volunt arily submit its claims to a court for relief as

2 This factor originally asks “whether a defendant seeking arbitration filed a counterclaim without asking for a stay of the proceedings.” Peterson , 849 F.2d at 467. Although we have yet to actually apply the Peterson factors to a plaintiff (as the Board was when it filed the original state c ourt action), the test is theoretically not restricted to defendants. Cf. Reid Burton , 614 F.2d at 702 (“In determining whether a party to an arbitration agreement, usually a defendant, has waived its arbitration right . . . .” (emphasis added)). As the factors are not exhaustive or exclusive, see Hill , 603 F.3d at 773, we will adjust them as needed to analyze this case and the Board’s prior status as a plaintiff.

3 The parties suggest that this Circu it has not been entirely consistent in analyzing prejudice and its importance, at times describing it as just one factor courts may consider but at other times requiring a showing of substantial prejudice. Compare Peterson , 849 F.2d at 468 (listing, as one of six factors, “whether the delay ‘affected, misled, or prejudiced ’ the opposing party,” (quoting Reid Burton , 614 F.2d at 702)), with Adams v. Merrill Lynch, Pierce, Fenner & Smith , 888 F.2d 696, 701 (10th Cir. 1989) (stating “[p]arties seeking to prove waiver of arbitrati on obligations bear a heavy burden; they must show substantia l prejudice,” and holdi ng defendants had not waived their right to arbitrat e when the plaintiffs “faile d to meet their burden” to show they had suffered substantial prejudice), and Hart v. Orion Ins. Co ., 453 F.2d 1358, 1361 (10th Cir. 1971) (stating the “question of waiver turns on the presence or absence of prejudice”). We need not addr ess the parties’ suggestion today. Even assuming there is a difference between Adams ’ sole reliance on prejudice and Peterson ’s listing of prejudice as just one of many fa ctors, the outcome here is the same.14 it refrained from serving BOSC and Hayes and further dismissed the case entirely before the district court could rule on the motion to dismiss. See Farr & Co. , 243 F.2d at 348 (holding a plaintiff did not wa ive its right to arbitrate beca use the suit “nev er got beyond the initial stage of filing; no party was served or entere d appearance; no property was attached, no answer filed”). As to the second factor, the Board’s conduct in filing the state court action may have invoked the litiga tion machinery as the Board took at least the first step to litigate rather than arbitrate, but we canno t say it “substantially invoked” that machinery here. On th e contrary, what got the ball rolling was BOSC and Hayes’ removal to federal court and their filing of a motion to dismiss even though they had not been served. Third, no trial date was neari ng (or had even been set), and a mere three months passed from the day the Board filed th e case to the day it di smissed it voluntarily. See Hill , 603 F.3d at 775 (stating a delay of four months was insufficient to establish waiver). In the fourth factor, we again acknowledge that the Board filed claims addressing the same issues it now seeks to arbitrate, but we reiterate that it did not voluntarily submit those claims for decision because it refrained from serving BOSC and Hayes. As to the fifth factor, not much had happened in the case before the Board dismissed it and sought arbitration. The dist rict court had not held any hearings nor set any pretrial or trial deadlines. The parties did not participate in any “judicial discovery procedures not available in arbitration,” as they did not participate in any discovery at all. During the three months the case was pendin g, the parties completed briefing on the motion to dismiss, but the Bo ard dismissed the case shortly after briefing was completed, thereby avoiding significant in efficiencies that would have resulted had it submitted its15 claims for decision before both the court and an arbitrator. See id. (stating “very little” had happened in litigation before the arbitration demand). As to the final factor, the Board’s delay in filing for arbitration minimally affected, misled, or prejudiced BOSC and Hayes, a nd that prejudice was predominately selfinflicted. BOSC and Hayes assert they in curred significant expense in analyzing the original state court action, preparing and filing the motion to dismiss, analyzing the Board’s response to that motion, and prepar ing and filing its repl y. But the time and expense BOSC and Hayes e xpended were primarily self-induced. Had they done nothing, the Board would have had to eventu ally decide whether to serve process and kick off the litigation or risk dismissal for failure to prosec ute. We do not mean to discourage defendants from pursu ing all their options in a timely manner, but we will not fault the Board for BOSC and Hayes’s decisi on to move forward despite having not been served. Next, BOSC and Hayes complain that FINRA arbitration does not allow them to obtain summary relief for frivolous claims or to obtain relief from the improper joinder of parties, whereas civil litigation allows those procedures. But these concerns do not stem from the Board’s delay in requesting arbitrati on; BOSC and Hayes wo uld face these same challenges had the Board filed for arbitration in the first place. BOSC and Hayes next assert the Board delayed effec ting service of process or givi ng notice of the filing of the state court action, and at the same time, pr esented witnesses for depositions and engaged in document discovery in a New Mexico Securities Division en forcement proceeding against BOSC, Hayes, and others. We do not see how BOSC and Hayes believe this prejudiced them, particularly because th e Board did not initia te the enforcement16 proceeding. Finally, BOSC a nd Hayes assert that FINRA Rule 4530 required them to report the litigation to FINRA, but they fail to mention that the sa me rule would have required them to likewise report arbitration. See FINRA Rule 4530(a)(1)(G) (requiring a FINRA member to report to FINRA when it is involved in civil litigation or arbitration). Taking all this into consideration, we conclude the Board was not improperly manipulating the judicial process. Had it a ttempted to submit its claims to a court for decision and only sought arbitration after be ing unhappy with the result, we might feel differently. But as things stand, we do not find that litigation had pr oceeded too far, that significant inefficiencies would result, or th at BOSC and Hayes we re prejudiced by the delay. See In re Cox , 835 F.3d at 1205. That said, we stress that parties who find themselves in the Bo ard’s position should promptly c onsider whether arbitration is available before filing suit: In general, we do not look kindly upon parties who use federal courts to advance their causes and then seek to fini sh their suits in th e alternative fora that they could ha ve proceeded to immediately. Such actions waste the time of both the courts and the opposing parties. The decision whether to arbitrate is one best made at the onset of the case, and not part way through . . . . The attempt of [a part y’s] attorneys to switch judicial horses in midstream either shows poor judgment, if planned, or poor foresight, if not. Walker v. J.C. Bradford & Co. , 938 F.2d 575, 577 (5th Cir. 1991) (staying the litigation pending arbitration notwithsta nding its admonition to the party). Parties can avoid the risk of waiver if they refrain from filing suit unless extraordinary circumstances require them to do so.17 III. Because we have not ruled as a matter of law in BOSC an d Hayes’ favor, we turn to their alternative ar gument that the district court erred in refusing to allow them to conduct discovery “on se veral key topics necessary to a Peterson analysis.” Brief for Appellant at 30; see also id. at 9 (arguing the “District Court erred in refusing to grant BOSC and Hayes the opp ortunity to conduct discovery on the factual matters which are relevant to a Peterson analysis”). Before reviewing the district court’s discovery denial, we address the proper procedure under the FAA. The Board f iled a Counterclaim for Judgment Compelling FINRA Arbitration under 9 U.S.C. § 4. BOSC and Hayes have treated this counterclaim as a motion for summary j udgment and support their request for discovery with a Federal Rule of Civ il Procedure 56(d) affidavit, but they misunderstand the correct procedure. 4 While certain procedures under § 4 of the FAA “can look a lot like summary judgment,” a motion to compel arbitration sets in motion a summary trial procedure rather than the usual discovery procedures. Howard v. Ferrellgas Partners , 748 F.3d 975, 978 (1 0th Cir. 2014). Under § 4, “[a] party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreem ent for arbitration may petition any United

4 The Board may have also misunderstood the proper procedure. During oral argument before the district court, the Board stated: “BOSC correctly understood the counter-motion as a Rule 56 moti on. It’s governed by Rule 56 standards.” R. at 98. But on appeal, the Board corr ected its error and explai ned that § 4 of the FAA governs here, not Rule 56, although the FAA’s summary trial “resembles summary judgment practice.” Brief for Appellee at 45.18 States district court which, save for such agreement, would have jurisdiction under Title 28, in a civil action . . ., for an orde r directing that such arbitration proceed in the manner provided for in su ch agreement.” Wh en “the making of the agreement for arbitration or the failure to comply therewith is not in i ssue, the court shall make an order directing the parties to proceed to arbitration in accordan ce with the terms of the agreement,” but when “the making of the arbitration agreement or the failure, neglect, or refusal to perform the same be in issue, the court sh all proceed summarily to the trial thereof.” Id . This “framework is simila r to summary judgment practice”: the party moving to compel arbitration bear s the initial burden of presenting evidence sufficient to demonstrate the existence of an enforceable agreement and the opposing party’s failure, neglect, or refusal to arbitr ate; if it does so, th e burden shifts to the nonmoving party to raise a genuine dispute of material fact regard ing the existence of an agreement or the failure to comply therewith. See Hancock v. Am. Tel. & Tel. Co. , 701 F.3d 1248, 1261 (10th Cir. 2012) (addressing the FAA procedure when the existence of an agreem ent to arbitrate is at issue); 9 U.S.C. § 4 (providing the same procedure when the “failure, neglect, or re fusal to perform” the arbitration agreement is at issue). When “a quick look at the case” reveals that “no materi al disputes of fact exist,” a district court may “d ecide the arbitration question as a matter of law through motions practice and viewing the facts in the light most favorable to the party opposing arbitration.” Howard , 748 F.3d at 978. But if “material disputes of fact do exist,” the FAA “calls for a summary trial —not death by discovery.” Id . (emphasis in original). Unless “the party alleged to be in default” demands a jury, the district19 court “shall hear and determine” the questions at issue. 9 U.S.C. § 4. The object of § 4 is “to decide quickly—summarily—the proper venue for the case, whether it be the courtroom or the conference room, so th e parties can get on with the merits of their dispute.” Howard , 748 F.3d at 977. We review de novo a district court’s decision to deny a summary trial on factual questions at issu e under 9 U.S.C. § 4. See Avedon Eng’g, Inc. v. Seatex , 126 F.3d 1279, 1283 (10th Cir. 1997) (providing for de novo review of a district court’s decision to “deny a jury trial on the factual question of whether the parties agreed to arbitrate”). Applying the same standard as the district court, we give the party opposing arbitration “the benefit of all reasonable doubts and inferences that may arise.” Hancock , 701 F.3d at 1261 (interna l quotation marks omitted). Here, the Board as the “aggrieved party” petitioned the district court for an order compelling arbitration after BOSC a nd Hayes allegedly “fai l[ed], neglect[ed], or refus[ed]” to arbitrate. Put into the correct context of the FAA, we understand BOSC and Hayes to be arguing that their “failure to comply” with the arbitration agreement is at issue. That is, if the Board wa ived its right to demand arbitration, then BOSC and Hayes are not at fault in failing, neglecting, or refusing to arbitrate. “[R]ound after round of di scovery and motions pract ice isn’t the answer,” Howard , 748 F.3d at 978, but the district cour t may have erred by not proceeding to a summary trial if BOSC and Hayes can actually es tablish a genuine dispute as to whether the Board waived its right to demand arbitration. They attempt to raise a material factual dispute by asking the Board questions such as whether the Board (as20 compared to its atto rney) authorized filing the state court action, was aware of its right to arbitrate and used the state court action as a litigation tactic, and dismissed the state court action only afte r considering the merits of the motion to dismiss. The district court denied discove ry (and in effect, a summary trial), concluding that BOSC and Hayes’ requests were aimed at the Board’s motivations, and thus, were irrelevant to the Peterson factors. The district court was correct. The Peterson factors analyze a party’s conduct—that is, that party’s external act ions showing that it waived its right to demand arbitration even if it did not subjec tively intend to do so. Whether it was in the form of discovery or a summary trial, the questions BOSC and Hayes wanted to ask would not change the Peterson analysis. We need not delve into whether a summary trial may be available to demonstr ate that a party intentionally waived its right to arbitrate, because BOSC and Ha yes have not asked us for that relief. 5
IV. We AFFIRM the judgment of the district court. The Board did not waive its right to demand arbitration, and thus, the district court properly entered judgment in the Board’s favor on its countercl aim to compel arbitration.

5 For a district court to grant a summary trial, the party opposing arbitration must show that a material factual dispute exists. We are not sa ying, one way or the other, whether BOSC and Haye s met that threshold showi ng here as to whether the Board intentionally waived its right to ar bitrate. We likewise do not comment on what questions regarding motivation a pa rty opposing arbitration may ask at a summary trial to determine whether the op posing party has inten tionally waived its right to demand arbitration.