United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 07-3519

___________

*

3M Company, *

*

Plaintiff - Appellee, *

* Appeal from the United States

v. * District Court for the 

* District of Minnesota.

Amtex Security, Inc., doing *

business as Amtex Global Services, *

*

Defendant - Appellant. *

* 

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Submitted: June 11, 2008

Filed: September 16, 2008

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Before MURPHY, BYE, and SHEPHERD, Circuit Judges.

___________

MURPHY, Circuit Judge.

3M Company (3M) brought this matter to compel arbitration with Amtex

Securities, Inc. (Amtex) of Amtex's claims in the Southern District of Texas for breach

of contract, tortious interference, fraudulent inducement, unjust enrichment, and
1

The Honorable Paul A. Magnuson, United States District Judge for the District

of Minnesota.

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breach of the duties of good faith and fair dealing. The district court1

 granted the

motion to compel, and Amtex appeals. We affirm.

I.

In 2005 3M sought proposals from vendors to serve as the integrated service

provider for 3M's production plant in Greenville, South Carolina. The integrated

service provider was to ensure efficient operation of the plant by providing various

administrative, technical, and professional services. Amtex offered a proposal which

3M accepted. 

3M and Amtex entered into two agreements on February 13, 2006. The master

agreement covered general terms of the parties' relationship such as confidentiality,

indemnification, and responsibility for paying taxes and obtaining permits. A separate

subagreement detailed the duration, scope of services, and contract price for services

at the Greenberg plant. The subagreement also permitted 3M to contract with Amtex

for services at other facilities without modifying the master agreement. Both

agreements are governed by South Carolina law, and only the subagreement has an

arbitration clause. 

The scope of services provision in the subagreement indicated that Amtex's

duties would include records management, pest control, ordering and delivery of items

necessary to operate the plant, repairs and maintenance, general construction

contracting, electrical installations, painting services, and equipment rental. The fixed

contract price in the subagreement for 2006 was $7,128,224, an amount calculated to

include a premium above Amtex's expected costs. 
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The subagreement called for quarterly reviews of Amtex's actual costs to

determine if they fell outside upper or lower control limits. If they fell outside of

either, the parties would "jointly investigate and determine the cause of the variation."

A variation within Amtex's control required no action. On the other hand, variations

caused by a change in production output, equipment additions, or changes to

equipment or processes at the plant were to be treated as changes to the original scope

of services. In those circumstances the parties were to issue a "change order

amendment" to the subagreement calling for a one time lump sum payment to Amtex

or credit to 3M to reflect the actual cost increase or decrease of the change.

The subagreement includes an arbitration clause in Article 4D. This clause

requires arbitration in St. Paul, Minnesota if the parties cannot agree on "any of the

following: a) whether a variation has occurred; b) the cause of any variation; or c) the

value of a change order amendment." A "change order amendment" is defined as an

amount which reflects "the actual cost increase or decrease of the Change(s)," and

"Changes" are defined very broadly as "changes within the original scope of

Services." The parties thus agreed to arbitrate any dispute regarding the existence,

cause, or value of any change to the scope of services Amtex was to provide. The

master agreement also includes a disputes provision ("general disputes clause"),

Article 17, which does not require arbitration but instead gives each party the right to

pursue "any legal remedy" for "any claim arising out of or attributable to the

interpretation of the agreement." The parties agreed that whenever the two agreements

conflicted or addressed the same topic, the subagreement would take precedence over

the master agreement.

Almost immediately after entering into the agreements, the parties began to

disagree about the scope of services Amtex was required to provide. During 2006 the

parties mutually agreed to eliminate various items from the scope of Amtex's services,

reducing the contract price to $5,882,838. While 3M paid Amtex $5,350,704 of the

reduced contract price from February through November 2006, Amtex paid its
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vendors only $3,802,599. The difference of $1,548,105 in Amtex's favor meant that

Amtex had received far in excess of a premium over its costs for that period. 

Amtex stopped paying its vendors because it believed that 3M had forced it to

perform services outside the scope outlined in the subagreement and that it was

entitled to, but had not received, an increase in the contract price. 3M disagreed, and

the parties terminated the master agreement and subagreement effective December 31,

2006. At that time Amtex still held unpaid vendor invoices of approximately $1.2

million.

Amtex sent a letter to 3M on March 2, 2007, demanding $1,650,000 in quantum

meruit or in the alternative $1,102,896 as an "equitable adjustment under Article 4 of

the [subagreement]" for causing a variation in Amtex's costs. 3M responded by

accusing Amtex of misappropriation. Amtex filed a complaint in Texas state court on

March 30, 2007, alleging unjust enrichment, breach of contract, breach of the duties

of good faith and fair dealing, and tortious interference with contract; the complaint

sought only compensatory damages. 3M removed the matter to federal court in the

Southern District of Texas based on diversity jurisdiction. 

3M filed a demand for arbitration with the American Arbitration Association

(AAA) in July 2007 and then a motion to compel arbitration in the federal district

court in Minnesota. It requested arbitration in St. Paul under § 4 of the Federal

Arbitration Act, 9 U.S.C. §§ 1-16, seeking $1.2 million from Amtex or an order

requiring it to pay its subcontractors. In its motion papers in the district court, 3M

argued that Amtex's demand for an equitable adjustment of the contract price under

Article 4 of the subagreement relates to a variation and therefore falls within the scope

of that agreement's arbitration clause. 

Shortly after 3M demanded arbitration Amtex amended its complaint in the

Southern District of Texas on August 1, 2007, to include claims for fraud, tortious
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interference, and violations of the South Carolina Unfair Trade Practices Act,

requesting consequential and punitive damages and attorney fees in addition to the

compensatory damages sought in its original filing. 3M moved under 9 U.S.C. § 3

that the district court in Texas stay proceedings on Amtex's amended complaint until

the district court in Minnesota ruled on its motion to compel arbitration. The district

court in Texas granted the stay.

3M's memorandum of law in support of its motion for arbitration contended that

the new allegations in Amtex's amended complaint "have no basis" and were added

"for the sole purpose of attempting to defeat 3M's motion to compel arbitration." 3M

asserted that despite Amtex's characterization of its claims, underlying all of them was

its desire to recoup $1.2 million in additional compensation because it believed its

costs of operating the plant had been increased due to actions taken by 3M. This type

of dispute falls within the scope of the parties' arbitration clause said 3M. Amtex

responded that the arbitration clause had a narrow scope which did not encompass the

allegations in its amended complaint and that it therefore could pursue "any legal

remedy" for its claims under the general disputes clause in the master agreement. It

also contended that the parties could not be compelled to arbitrate because quarterly

reviews of Amtex's costs were a condition precedent to arbitration and they had not

been conducted.

The district court in Minnesota entered an order in September 2007 granting

3M's motion to compel arbitration. The court referenced the presumption in favor of

arbitration and concluded that "3M has established that disputes between it and Amtex

fall within the parties' arbitration agreement" because "regardless of how the parties

characterize their claims, they are variations or changes to what was spent in

furtherance of the contract." Amtex appeals, arguing that the district court erred by

concluding that an arbitrator would have jurisdiction over its claims because the

arbitration clause has too narrow a scope to cover them. While disagreeing with that
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interpretation of their contract, 3M also argues that the district court order was a

nonfinal interlocutory order over which we have no jurisdiction.

II.

Appellate jurisdiction generally is limited to final decisions, 28 U.S.C. § 1291,

and 9 U.S.C. § 16(a)(3) gives parties the right to appeal "a final decision with respect

to an arbitration," which "ends the litigation on the merits and leaves nothing more for

the court to do but execute the judgment," Green Tree Fin. Corp.–Alabama v.

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

3M argues that the Minnesota order to compel and the order to stay proceedings

in Amtex's case in the Southern District of Texas must be considered together for

purposes of finality. It points out that litigation of the merits is not ended when a

court orders parties to arbitrate certain matters while others are stayed. See Green

Tree, 531 U.S. at 87 n.2 (order compelling arbitration and dismissing remaining

claims was final appealable order but "[h]ad the district court entered a stay instead

of a dismissal . . . , that order would not be appealable"); Manion v. Nagin, 255 F.3d

535, 540 (8th Cir. 2001) (interlocutory order directing arbitration and staying action

generally not appealable). Amtex responds that the district court's order to compel is

final because when a motion to compel arbitration is the only matter before the court,

an order granting the motion "is deemed to dispose of the entire case, and permit

appellate review under 9 U.S.C. § 16(a)(3)." Prudential Ins. Co. of Am. v. Lai, 42

F.3d 1299, 1302 (9th Cir. 1994).

We agree with the position taken by Amtex and circuit courts which have

concluded that when a motion to compel arbitration and a motion for a stay are

brought separately, they should be treated individually and the resulting order

compelling arbitration is final and appealable. Prudential, 42 F.3d at 1302; S + L +

H S.p.A. v. Miller-St. Nazianz, Inc., 988 F.2d 1518, 1522-23 (7th Cir. 1993) (order
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compelling arbitration held to be final and appealable because it originated in separate

matter from case with motion to stay, even though cases were before same district

court judge who held a joint hearing on the motions and issued one opinion dealing

with both motions); but cf. CitiFinancial Corp. v. Harrison, 453 F.3d 245, 251 (5th

Cir. 2006) (orders to compel arbitration and for stay issued by two judges sitting

within the same federal district were reviewed together by the Fifth Circuit since

"[j]urisdiction is lodged in a court, not in a person"). 

Here, 3M's motion to compel and Amtex's amended complaint were brought in

two separate actions in different district courts not located within the same circuit.

Neither party tried to join or transfer the cases. See S + L + H, 988 F.2d at 1522-23;

McDermott Int'l, Inc. v. Underwriters at Lloyds, 981 F.2d 744, 747 (5th Cir. 1993)

(cases consolidated under § 42(a) became "single judicial unit," thus order compelling

arbitration and staying other proceedings was not final); Middleby Corp. v. Hussmann

Corp., 962 F.2d 614, 615 (7th Cir. 1992) (district court confirmation of arbitrator's

award without resolving stayed matters was not appealable because judge had

consolidated the two actions for all purposes). No single circuit court would have

appellate jurisdiction over orders issuing from the individual districts in which Amtex

and 3M have filed. See 28 U.S.C. § 1294(1) (appeals must be taken from district

court to the court of appeals for the circuit embracing the district); McGeorge v.

Continental Airlines, Inc., 871 F.2d 952, 954 (10th Cir. 1989) (no jurisdiction over

appeal from decision of district court not within territory of circuit). We conclude that

we do have jurisdiction over the Minnesota district court's order to compel arbitration

since it disposes of the only matter brought before that court.

III.

We review de novo a district court's grant of a motion to compel arbitration

under 9 U.S.C. § 4. See Faber v. Menard, Inc., 367 F.3d 1048, 1051 (8th Cir. 2004).

A court must grant a motion to compel arbitration if a valid arbitration clause exists
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which encompasses the dispute between the parties. 9 U.S.C. § 4; MedCam, Inc. v.

MCNC, 414 F.3d 972, 974 (8th Cir. 2005). The parties do not dispute that Article 4D

of the subagreement is a valid arbitration clause; their disagreement centers on

whether Amtex's claims fall within its scope. 

Amtex urges us to conclude that the district court erred in compelling

arbitration because the arbitration clause has a very narrow scope which applies only

to disputes arising from the quarterly review process or from written changes to the

scope of services. Since its claims are all "premised upon breaches of contract" it

says, they are not covered by Article 4D. 3M responds that their arbitration clause is

broad, encompassing "all disputes regarding monies allegedly owed to [Amtex] in

connection with its work at the Greenville Plant" and that all of Amtex's claims come

within the scope of Article 4D. 

Unless the parties provide otherwise, the court rather than the arbitrator will

determine whether a particular dispute falls within the scope of the clause.

McLaughlin Gormley King Co. v. Terminix Int’l Co., L.P., 105 F.3d 1192, 1993-94

(8th Cir. 1997). In conducting an inquiry into whether claims come within the

arbitration clause, the district court does not reach the potential merits of any claim

but construes the clause liberally, resolving any doubts in favor of arbitration and

granting the motion "unless it may be said with positive assurance that the arbitration

clause is not susceptible of an interpretation that covers the asserted dispute."

MedCam, 414 F.3d at 974-75. 

Article 4D of the subagreement mandates arbitration "[i]n the event [the parties]

cannot agree on any of the following: a) whether a variation has occurred; b) the cause

of any variation; or c) the value of a change order amendment." While the clause is

not as extensive as clauses which require arbitration of "any" or "all" disputes, the

parties' definitions of terms such as "change" and "change order amendment" indicate

that they agreed to arbitrate a very broad range of disputes regarding the existence,
2

3M argues that Amtex amended its complaint in an attempt to plead its way out

of arbitration, but at this point we will not second guess Amtex's motivation in filing

its amended complaint or touch on the merits of any of its claims. 

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cause, or value of any change to the scope of services Amtex agreed to provide at the

plant.

Although a party may not be compelled to arbitrate a dispute unless it has

agreed to do so, the "liberal federal policy favoring arbitration agreements," Moses H.

Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983), requires that a

district court send a claim to arbitration when presented with a broad arbitration clause

like the one here as long as the underlying factual allegations simply “touch matters

covered by” the arbitration provision, Mitsubishi Motors Corp. v. Soler ChryslerPlymouth, Inc., 473 U.S. 614, 625 n.13 (1985); see also Kiefer Specialty Flooring,

Inc. v. Tarkett, Inc., 174 F.3d 907, 910 (7th Cir. 1999) (claim came within scope of

broad arbitration provision because significant relationship existed between plaintiff's

claim and the arbitration provision). 

Every claim in Amtex's original complaint fell squarely within the scope of the

arbitration clause, but Amtex amended its complaint shortly after 3M demanded

arbitration to include claims such as fraudulent inducement and a request for punitive

damages.2

 Our task is to look past the labels the parties attach to their claims to the

underlying factual allegations and determine whether they fall within the scope of the

arbitration clause. Each of the nine claims in Amtex's amended complaint includes

factual allegations regarding the scope of services, the costs incurred by Amtex in

providing those services, its right to receive an equitable adjustment for changes to the

scope of services, or 3M's alleged withholding of payments for services. Given the

broad scope of the arbitration clause and our "insist[ence] upon clarity before

concluding that the parties did not want to arbitrate a related matter," First Options

of Chicago, Inc. v. Kaplan, 514 U.S. 938, 945 (1995), we conclude that it cannot be

said with positive assurance that the arbitration clause is not susceptible of an
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interpretation that covers Amtex's claims. The district court therefore did not err by

granting 3M's motion to compel arbitration. When the parties have agreed on an

arbitration clause that appears to cover their dispute, it should be upheld. See Volt

Info. Sciences, Inc. v. Bd. of Trustees of Leland Stanford Junior Univ., 489 U.S. 468,

479 (1989). 

Amtex also argues that the district court erred in granting the motion to compel

because the quarterly expense reviews were a condition precedent to arbitration and

were never conducted. That is a matter of procedural arbitrability, however, which

is decided by the arbitrator. See, e.g., Int'l Ass'n of Bridge, Structural, Ornamental &

Reinforcing Ironworkers, Shopman's Local 493, 359 F.3d 954, 956 (8th Cir. 2004).

This argument does not undermine the district court's decision.

If any party should be dissatisfied with the result of an arbitration, the Federal

Arbitration Act itself provides avenues for relief. A disgruntled party may move to

vacate, modify, or correct an arbitration award. 9 U.S.C. § 10 (vacate); 9 U.S.C. § 11

(modify or correct). If a party believes that the arbitrator exceeded the powers granted

by the arbitration agreement, it may go back to the district court and request that it

vacate the arbitration award. 9 U.S.C. § 10(a)(4); see Schoch v. InfoUSA, Inc., 341

F.3d 785, 788 (8th Cir. 2003). On the other hand a satisfied party may move to

confirm the award under 9 U.S.C. § 9.

In conclusion we affirm the order of the district court.

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