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. e du/thir dc ir c uit_2015/833PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

_____________

No. 12

- 3 676

_____________

DEVON ROBOTICS, LLC; DEVON HEALTH SERVICES

INC.; JOHN A

. BENNETT, M.D.

v.

GASPAR DE V IEDMA; MCKESSON CORPORATION

Gaspar DeViedma,

Appellant

_______________
On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2

- 09

- cv

- 03552 ) District Judge: J. Curtis Joyner

_______________
Argued : October 29 , 201 4

Before: MCKEE

, Chief Judge

, GR EENAWAY

, JR. and

KRAUSE

, Circuit Judges.

(Filed : August 5 , 2015 )

_______________2 Gary M. Samms (Argued) Obermayer, Rebmann, Maxwell & Hippel 1617 John F. Kennedy Boulevard One Penn Center, 19th Floor Philadelphia, PA 19103

Counsel for Appell ees

James P. Golden (Argued) Hamburg & Golden
1601 Market Street
Suite 3310 Philadelphia, PA 19103

Counsel for Appell ant

_______________

OPINION OF THE C OURT

_______________

KRAUSE

, Circuit Judge

.
This appeal stems from a failed agreement to distribute robotic medical devices, but the issue before us is a threshold question of jurisdiction under the Federal Arbitration Act (the “FAA”)

. The case comes to us in the unusual posture of an interlocutory appeal from an order denying summary judgment, a type of order not normally before this Court, but one the Appella nt urges us to sweep within the ambit of appellate jurisdiction under § 16 of the FAA on the gro und that it is the equivalent of an order denying a petition to compel arbitration

. We hold that § 16 does not sweep so3 broadly and therefore will dismiss this appeal for lack of jurisdiction

.

I. Background

A. Factual History 1

Appellee Devon Robotics, L LC (“Devon”) acquired the rights to distribute two robotic medical devices, CytoCare and i.v. Station, from an Italian corporation, Health Robotics, S.r.l. (“H ealth Robotics ”). Appellant Gaspar DeViedma (“DeViedma”)

, the general counsel for Health Robotic s , negotiated the distribution contracts for both CytoCare and
i.v. Station. Each contract contained an identical arbitration
clause:

Disputes between the parties arising out of, in relation to, or in connection with this agreement
or the breach thereof s hall be finally settled by binding arbitration. Any arbitration shall be conducted in English under the rules of the International Chamber of Commerce by a single, mutually

- agreed

- to arbitrator and shall be held in Geneva, Switzerland.

(App. 153 n.1.)

1 This factual summary is derived from the District Court’s Memorandum and Order on the parties’ cross motions for summary judgment.4 The CytoCare contract , which is the focus of this dispute, was executed in September 2008. By February 2009, CytoCare sales were not performing as the parties had hoped. To help Devon boost sales, the parties executed a Second Amendment to the CytoCare Distribution Agreement in
which Health Robotics agreed to provide executive management consult ing services to be performed by
DeViedma. Pursuant to that amendment, DeViedma began acting as Devon’s Chief Operating Officer (“COO”).

Over the next few mon ths, Devon conducted negotiations with McKesson Corporation (“McKesson”) regarding a sublicensing agreement for CytoCare, but
DeViedma allegedly obstructed McKesson’s ability to complete a due diligence trip to Health Robotics ’s manufacturing facilities in Italy. Meanwhile , Devon failed to make franchise fee payments to Health Robotics , leading
Health Robotics to draw down a $5 million line of credit that Itochu International, Inc. (“Itochu”) had extended to Health
Robotics and Devon had guaranteed. In tu rn, t his led Itochu to bring a suit against Devon to recoup the $5 million as well
as an unrelated debt.

Shortly there after, in June 2009, DeViedma stopped serving as Devon’s COO, and Devon and Health Robotics executed a Fourth Amendment to the CytoCare Distribution Agreement reflecting that the management consulting
services had been terminated. Health Robotics then terminated its CytoCare contract with Devon altogether and entered into a direct agreement with McKesson, with DeViedma signing t he termin ation letter to Devon in his capacity a s Health Robotics’ s general counsel. Health
Robotics also sent Devon a notice alleging breaches of their i.v. Station agreement, and DeViedma e

- mailed several of5 Devon’s hospital customers telling them that Devon fac ed financial difficulties and bankruptcy proceedings, and that
Devon lacked staff qualified to manage i.v. Station robot
installations.

B. Procedural History

Devon filed suit against DeViedma and McKesson in August 2009

, claiming breach of fiduciary duty , tortious interference with current and prospective contractual relations, defamation, and conspiracy

. In response, DeViedma filed a motion to dismiss on two grounds: first, that the complaint must be dismissed in favor of arbitration, and second, that D evon failed to state any claim upon which relief could be granted. The District Court granted the motion only in part

. 2 DeViedma did not appeal that order , and

e xtensive litigation followed

. O ver the next seventeen
months , the parties expended considera ble time and resources in discovery, producing hundreds of thousands of pages of
documents and taking approximately twenty

- six depositions

.

DeViedma then filed a motion for summary judgment on the remaining two claims against him, which were for

2 T he District Court dismissed the claims for conspiracy and tortious interference with prospec tive
contractual relations but found the others did not arise out of the agreements containing the arbitration clauses. In addition,
the District Court dismissed claims brought by Appellees Devon Health Services, Inc. and Dr. John A. Bennett , and t he part ies subsequently stipulated to dismissal of the defamation
claims

.6 breach of fiduciary duty and tortious interference with current contractual relations. He repeated his argument that the claims against him could only be brought in arbitration in
Switzerland. In the Memorandum and Order that are the subject of this appeal, the Di strict Court rejected his argument s in favor of arbitration, but granted summary judgment on Devon’s tortious interference claim, leaving only Devon’s br each of fiduciary duty claim. DeViedma then
filed this interlocutory appeal seeking our review of the District Court’s order holding that Devon’s claims were not subject to arbitration , and Devon moved to dismiss the appeal for lack of jurisdiction.

II. Discussion

Devon argues that there are three independent reasons we lack jurisdiction over this a ppeal : that the District Court’s
Order denying summary judgment is not appealable under §
16 of the FAA because it is not an order “ denying an application under section 206 of [Ti t le 9] to compel
arbitration

, ” 9 U.S.C. § 16(a)(1)(C) ; that DeViedma’s Notice of Appeal is defective because DeViedma inadvertently cited to 9 U.S.C. § 16 (a)(1)(B) instead of 9 U.S.C. § 16(a)(1)(C) ; 3

and that DeViedma waived his right to compel arbitration because he opted not to seek an interlocutory appeal of the

3 Subsection (B) of § 16 permits an appeal from an order “denying a petition under [9 U.S.C. § 4] to order arbitration to proceed,” whereas Subsection (C) permits an appeal from an order “ denying an application under [9 U.S.C. § 206] to compel arbitration.” 9 U.S.C. § 16(a)(1)(B ) , (C).7 District Court’s denial of his motion to dismiss and instead engaged in protracted litigation

. 4

4 De von raises this argument as a bar to jurisdiction, although we have generally treated waiver of the right to compel arbitration as a merits issue, n ot a jurisdictional one. See, e.g.

, In re Pharmacy Benefit Managers Antitrust Lit i g. , 700 F.3d 109, 117 (3d Cir. 2012); Gray Holdco, Inc. v. Cassady , 654 F.3d 444, 451 (3d Cir. 2011).

In addition, Devon argues, on the merits, that DeViedma cannot compe l arbitration because he was not a party to the contracts containing arbitration clauses

— a contention we note may also bear on jurisdiction, as a party must allege a “prima facie case of entitlement” to arbitration
in order to obtain interlocutory review u nder § 16(a) of the
FAA

. Ehleiter v. Grapetree Shores, Inc. , 482 F.3d 207, 212

- 13 (3d Cir. 2007); see also Sourcing Unlimited, Inc. v. Asimco Int’l, Inc. , 526 F.3d 38, 43, 46 (1st Cir. 2008) (analyzing a party’s status as a non

- signatory as both a jurisdi ctional and merits issue). DeViedma counters, first, that he is entitled to arbitration because he was acting at relevant times as an agent of signatory Health Robotics. See Pritzker v. Merrill Lynch, Pierce, Fenner & Smith, Inc. , 7 F.3d 1110, 1122 (3d C ir. 1993) (“In keeping with the federal policy favoring arbitration, we . . . will extend the scope of the arbitration clauses to agents of the party who signed the agreements.”). Second, he asserts that Devon should be equitably estopped from avoiding ar bitration because its claims are closely intertwined with the CytoCare contract.
See E.I. DuPont de Nemours & Co. v. Rhone Poulenc Fiber & Resin Intermediates, S.A.S. , 269 F.3d 187, 201

- 02 (3d Cir.8 In such a situation, “there is no mandatory ‘sequ encing of jurisdictional issues, ’” and we enjoy “leeway ‘to choose among threshold grounds for denying a udience to a case o n the merits ’” in the order that best serves judicial economy. Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp. , 549 U.S. 422, 431 , 435

- 36 (2007) (quoting Ruhrgas AG v. Marathon
Oil Co. , 526 U.S. 574, 58 4

- 8 5 (1999)). We need not reach Devon’s alternat ive arguments because we conclude we lack jurisdiction under § 16 (a)(1)(C) , and, therefore, this appeal
must be dismissed

.

A

. Orders Appealable Under § 16(a)(1)(C)

In the ordinary course, w e possess jurisdiction over only “final decisions of the distric t courts of the United States.” 28 U.S.C. § 1291. The FAA, however, provides for appellate jurisdiction of certain categories of interlocutory orders, including orders “denying an application under section 206 . . . to compel arbitration.” 9 U.S.C. § 16 (a)(1)(C). Devon contends that we lack jurisdiction under that provision because DeViedma is appealing from not an order denying an application un der § 206 to compel
arbitration but

, rather, a motion for summary judgment in
favor of arbitration , and “[t]h e denial of a summary judgment motion is not a final order,” United States v. Spears , 859 F.2d

2001) (collecting cases compelling signatories on basis o f equitable estoppel to arbitrate against non

- signatories claims that were intertwined with contracts containing arbitration clauses). We have no occasion to address these arguments because we will dismiss for lack of jurisdiction on other grounds.9 284, 286 (3d Cir. 1988) (citing Boeing Co. v. Int’l Union, United Auto., Aerospace & Agric. Implement Workers of Am.

, 370 F.2d 969, 970 (3d Cir. 1967))

.

I n Harrison v. Nissan Motor Corp. , 111 F.3d 343 (3d Cir. 1996) , we identified a similar issue : whether to interpret § 16 of the FAA as reaching the denial of a motion to dismiss
in favor of arbitration. See 111 F.3d at 348. We acknowledged there is some log ic to treating a motion to dismiss in favor of arbitration like a motion to compel
arbitrati on under § 16, but a lso posited that “linguistically, a motion to dismiss, even for failure to pursue the statutorily provided threshold arbitral remedy, is a far c ry from a

‘ motion to compel arbitration.’” Id. at 349. Because we dismissed the appeal for lack of ju risdiction on different grounds, however, we did not reach the issue. We do reach it today and conclude that § 16(a)(1)(C) does not extend to
denials of motions for summary judgment.

1. Statutory Text

Our analysis begin s with the statutory text. Section 16 of the FAA provides that:

(a) An appeal may be taken from

—

(1) an order

—

(A) refusing a stay of any action under section 3 of this title,

(B) denying a petition under section 4
of this title to order arbitration to proceed,10 (C) denying an application under section 206 of this title to compel arbitration,

(D) confirming or denying
confirmation of an award or partial award, or

(E) modifyin g, correcting, or vacating an award;

(2) an interlocutory order granting, continuing, or modifying an injunction against an arbitration that is subject to this title; or

(3) a final decision with respect to an
arbitration that is subject to this title.

9 U.S.C. § 16 (a)

. As the Supreme Court instruct ed in Green Tree Financial Corp.

- Alabama v. Randolph , 531 U.S. 79 (2000), “we apply the ‘plain language of the statutory text’ in interpreting the FAA.” Lloyd v. HOVE NS A, LLC , 369 F.3d 263, 269 (3d Cir. 20 04) (quoting Green Tree , 531 U.S. at 88). “We do not look past the plain meaning unless it produces a result demonstrably at odds with the intentions of its drafters or an outcome so bizarre that Congress could not have intended it.” Mitchell v. Horn , 31 8 F.3d 523, 535 (3d Cir. 2003) (citation s and quotation marks omitted).

Further, the Supreme Court has repeatedly held that “statutes authorizing appeal s are to be strictly construed. ” Office of Senator Mark Dayton v. Hanson , 550 U.S. 511, 51511 (2007) ( quoting Perry Educ. Ass’n v. Perry Local Educators’
Ass’n , 460 U.S. 37, 43 (1983)) (internal quotation marks omitted) . That command carries extra force for statutes authorizing interlocutory appeals, which are exceptions to the
final decision rule of 28 U .S.C. § 1291 and “the long

established policy against piecemeal appeals.” Gardner v. Westinghouse Broad. Co. , 437 U.S. 478, 480 (1978). Thus, “we must construe the scope of the provision with great care and circumspection” and “ approach this statute some what gingerly lest a floodgate be opened that brings into the exception many pretrial orders. ” Kershner v. Mazurkiewicz

, 670 F.2d 440, 446

- 47 (3d Cir. 1982) (quoting Switz. Cheese Ass’n v. E. Horne’s Mkt

. , Inc. , 385 U.S. 23, 24 (1966)) (internal quotation marks omitted)

.

Here, t he plain language of the FAA provides no support for exercising jurisdiction over a n order denying a
motion for summary judgment

. E ven when motivated by a conclusion that claims are not subject to arbitration

, an order denying sum mary judgment is not an order “denying an application under section 206 of this title to compel arbitration.” 9 U.S.C. § 16(a)(1)(C); s ee Harrison , 111 F.3d
at 349

. And under the canon of expressio unius est exclusio
alterius (“the express mention of one thing excludes all others”), Congress’s enumeration of several categories of appealable orders, but not orders denying summary judgment, indicates that Congress intended orders denying summary judgment to fall outside the scope of § 16. See, e.g.

, Delawar e Cnty. v. Fed. Hous. Fin. Agency , 747 F.3d 215, 221 (3d Cir. 2014).

2. Statutory Structure12 T he structure of the FAA further compels us to read § 16 as excluding orders denying summary judgment. Section
16 is strikingly specific in describing the c ategories of orders from which we may hear interlocutory appeals. It names orders “denying a petition under section 4 of this title to order arbitration to proceed” and orders “denying an application
under section 206 of t his title to compel arbitration. ” 9 U.S.C. § 16(a)(1)(B), (C) (emphasis added). The se references to §§ 4 and 206 are telling.

Section 4 outlines a procedure for a party to “petition” a court for “an order directing that such arbitration proceed,” not an order granting summary judgment

. 9 U.S.C. § 4. Section 206 similarly provides that a court “may direct that arbitration be held in accordance with the agreement at any place therein provided for, whether that place is within or
without the United States ”; it does not provide that a co urt may grant summary judgment. 9 U.S.C. § 206. Had Congress defined the categories of appealable orders using more malleable language

— such as “ orders denying motions to compel arbitration, ” “ orders denying requests to compel arbitration, ” “ orders refusi ng to enforce arbitration agreements, ” or “ orders hostile to arbitration ”

— the argument for jurisdiction over some orders denying summary judgment might be stronger . But Congress’s decision to specify denials of § 4 petitions or § 206 applications indicate s that § 16 is not
so elastic

. 5

5 Fo r simplicity’s sake, we refer in this opinion to § 4 petitions and § 206 applications interchangeably as motions to compel arbitration.13 We conducted a similar analysis of the FAA in Lloyd

, where we considered § 3 of the statute . Section 3 provides that, upon the application of a party, a district court “shall” stay proceedings that are referable to arbitra tion. 9 U.S.C. §
3. 6 In Lloyd , we held that a district court lacked discretion to dismiss, rather than stay, a case under § 3 where the parties had requested a stay and not a dismissal. 369 F.3d at 269. After reviewing the text of § 3, we opted to “sid e with those
courts that take the Congressional text at face value” and
reasoned that the statute’s “directive that the Court ‘shall’ enter a stay simply cannot be read to say that the Court shall enter a stay in all cases except those in which all claims are arbitrable and the Court finds dismissal to be the preferable approach.” Id.

We also analyzed whether exercising jurisdiction was
consistent with the structure of the FAA. We noted the ongoing role of the district court after sending all of the
cl aims in a lawsuit to arbitration, including resolving disputes

6 In full, this section states: “If any suit or proceeding be brought in any of the courts of the United States upo n any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, s hall on application of one of the parties stay the
trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration.” 9 U.S.C. § 3.14 regarding the appointment of an arbitrator, compelling witnesses, and entering judgment on an award. Id. at 270 (citing 9 U.S.C. §§ 5, 7, 9

- 11). If a case were dismissed rather than stayed, t he parties would have to file a new action each time the court’s assistance was required, and the dispute could be assigned to different judges over the course of the
arbitration. Id. Furthermore, whereas an order granting a stay under § 3 is not immedia tely appealable under 9 U.S.C. § 16(b), 7 an order dismissing claims in favor of arbitration is immediately appealable because it is a final order. Lloyd , 369
F.3d at 270

. Consequently , construing § 3 as permitting
district courts to dismiss claims instea d of staying them would have altered the statutory scheme of appeals. Ultimately, we held that a “literal reading of § 3” was the only reading

7 Section 16(b) provides that:

Except as otherwise provided in section 1292(b) of title 28, an appeal may not be taken from an interlocutory
order

—

(1) granting a stay of any action under section 3 of this title; (2) directing arbitration to proceed under section 4 of this title; (3) compelling arbitration under section 206 of this title; or (4) refusing to enjoin an arbitration that is subject to
this title.

9 U.S.C. § 16(b).15 consistent with the structure of the FAA and the strong national policy in favor of arbitration

. Id. at 271.

So , too, must we construe § 16 by its plain terms

. Consider the procedures § 4 specifies for § 16 motions to compel arbitration : A party’s ability to “ petition any United States district court . . . for an order directing that . . . arbitration proc eed” is conditioned on the opposing party’s “failure, neglect, or refusal . . . to arbitrate,” and the petitioner

must give the opposing party “[f]ive days’ notice in writing” of the petition. 9 U.S.C. § 4. 8 Moreover, the inquiry a district

court is requ ired to undertake in analy zing a motion to compel arbitration differs significantly from the analysis required for a motion for summary judgment. As we explained in Guidotti v. Legal Helpers Debt Resolution, LLC

, 716 F.3d 764 (3d Cir. 2013), where “ the pa rty opposing arbitration can demonstrate, by means of citations to the record, that there is a genuine dispute as to the enforceability of the arbitration clause, the court may then proceed summarily to a trial regarding the making of the arbitration

agree ment or the failure, neglect, or refusal to perform the same, as Section 4 of the FAA envisions. ” Id. at 7 7 6 (internal citations and quotation marks omitted).

Because of th ese prescribed procedure s , equating a denial of summary judgment with a denial of a motion to compel under § 16 could be quite consequential

. For

8 Under § 208, the requirements of § 4 apply to § 206 appli cations as well, provided there is no conflict between the two provisions. See Control Screening LLC v. Technological Application & Prod. Co. (Tecapro), HCMC

- Viet

. , 687 F.3d 163, 170

- 71 (3d Cir. 2012)

.16 example, a party trying to enforce an arbitration agreement
but seeking to avoid trial on the issue of arbitrability could
file a motion for summary judgment instead of a § 4 petition (or § 206 application) and then seek immediate review if the
motion is denied

. Even if any concerns about these kinds of procedural differences would be modest in practice, they indicate that construing § 16 to open the door to interlocutory appeals from orders denying motions for summary judgment is incompatible with the structure of the FAA

. Therefore, we conclude that § 16 “simply cannot be read” to grant us jurisdiction over orders denying motions for summary judgment. See Lloyd

, 369 F.3d at 269.

B. Our Approach to Applying § 16(a)(1)(C)

T hat conclusion, however, does not necessarily end our inquiry, for the question remains whether we should

construe the order denying DeViedma’s motion for summary judgment as a denial of a motion to compel arbitration

. Most
Court s of Appeals have addressed this question only in the context of motions to dismiss, and they have answered it in a variety of ways.

At one end of the spectrum, the D.C. Circuit has adopted a narrow approach to jurisdiction under § 16,
declinin g to “treat” the defendant’s motion as something
other than a Rule 12(b)(6) motion to dismiss and reasoning that the “principle of narrow construction . . . counsels against
broad construction of a motion forwarded for review.” Bombardier Corp. v. Nat ’ l R .R. Passenger Corp. , 333 F.3d 250, 254 (D.C. Cir. 2003)

. The Bombardier court went on to explain that “even if [it] were to construe a motion to dismiss more broadly in some circumstances,” it would not do so there, primarily because the motion to dismiss “exhibited no17 intent to pursue arbitration

— indeed, it sought outright dismissal with no guarantee of future arbitration.” Id. ; see also Wabtec Corp. v. Faiveley Transp

. Malmo AB , 525 F.3d
135 , 140 (2d Cir. 2008) (citing Bombardier , 333 F.3d at 254) (decl ining to exercise jurisdiction where a motion to dismiss did not explicitly or implicitly request the district court to

“ direct that arbitration be held ” (internal quotation marks omitted) )

.

At the other end are the First and Sixth Circuit s , which
ha ve adopted a broad approach. Thus, i n Fit Tech, Inc. v. Bally Total Fitness Holding Corp. , 374 F.3d 1 (1st Cir. 2004), the court treated the defendant’s request for dismissal in favor of arbitration “as encompassing the lesser alternative remedy of a stay an d reference” because “no one ha[d] been prejudicially misled by [its] request for an over

- favorable remedy of dismissal.” Id. at 6 ; see also Sourcing Unlimited

, 526 F.3d at 46 ( “ A movant’s choice to request dismissal rather than a stay of proceedings duri ng referral to arbitration is within the ambit of § 16(a).” ) . And the Sixth Circuit has held simply that § 16 grants appellate jurisdiction over “refusal[s] to enforce, through dismissal or stay, an agreement
to arbitrate.” Simon v. Pfizer, Inc. , 398 F.3 d 765, 772 (6th Cir. 2005); accord Turi v. Main St. Adoption Servs., LLP , 633 F.3d 496, 501 (6th Cir. 2011) (citing Simon , 398 F.3d at 772

- 73) (“The district court’s denial of Main Street’s motion to dismiss, which was based on the parties’ arbitration cla use, is independently reviewable under the Federal Arbitration Act . . . .”).

T he Tenth Circuit , on the other hand, has taken a functional approach, focusing on t he relief requested by a
motion and holding that “in order to invoke the appellate jurisdicti on provided in § 16(a), the defendant in the district18 court must either move to compel arbitration and stay litigation explicitly under the FAA, or must make it plainly apparent that he seeks only the remedies provided for by the
FAA

— namely, arbitration ra ther than any judicial
determination

— in his prayer for relief.” Conrad v. Phone
Directories Co. , 585 F.3d 1376, 1385 (10th Cir. 2009)

. T he
court in Conrad thus dismissed the appeal because

, despite “mention[ing] that the court might compel arbitration in one sentence of its memorandum,” the appellant’s motion asked only for dismiss al , not for any relief under the FAA. Id. at 1386 . The Fourth Circuit is in accord. See Rota

- McLarty v. Santander Consumer USA, Inc. , 700 F.3d 690, 698

- 99 (4th Cir. 2012) (ar ticulating an approach focusing on the relief requested in a motion); see also Grosvenor v. Qwest Corp.

, 733 F.3d 990 (10th Cir. 2013) (applying Conrad to an order granting cross motions for partial summary judgment).

We now join the Tenth and Fourth Circ uits in focus ing our § 16(a) inquiry on a movant’s requested relief . W hile the analy tical approach we adopt here will not turn solely on the caption of a motion, we have two concerns with looking
much far ther . First, construing motions as “ petitions unde r section 4 of this title to order arbitration to proceed” or “applications under section 206 of this title to compel
arbitration

, ” when they are not

, has the effect of expanding the scope of § 16 when our mandate is to construe it narrowly

. See supra at 9

- 1 1

. Second, j urisdiction over an appeal “must be determined by focusing upon the category of order appealed from

, ” Arthur Andersen LLP v. Carlisle , 556 U.S. 624, 62 8 (2009) (quoting Behrens v. Pelletier , 516 U.S. 299, 311 (1996))

, a nd in fashioning any rule of appellate jurisdicti on, predictability is paramount, se e Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co. , 513 U.S.19 527, 547

- 48 (1995) ; Carroll v. United States , 354 U.S. 394,
404

- 06 (1957) (“Appeal rights cannot depend on the facts of a

pa rticular case. The Congress necessarily has had to draw the jurisdictional statutes in terms of categories.”)

. Allowing our jurisdiction to turn on a case

- by

- case evaluation of how
central an arbitration clause is to a party’s argument for
dismissal or su mmary judgment is the antithesis of predictability. Both of these concerns counsel against determining jurisdiction based on the contents, rather than the caption, of a motion.

Nonetheless, we recognize the need for a limited look beyond the caption itse lf , both to ensure that a true motion to compel is not overlooked and to ensure that partie s cannot “‘game’ the captions of their motions in an effort to gain an interlocutory appeal where none is warranted.” Conrad , 585
F.3d at 1385 . We have charted thi s course before in construing orders under 28 U.S.C. § 1292(a), which provides for appellate jurisdiction over certain kinds of interlocutory appeals , including appeals from orders “ granting, continuing, modifying, refusing or dissolving injunctions, or re fusing to dissolve or modify injunctions .” 28 U.S.C. § 1292(a)(1). 9 In an opinion by then

- Judge Alito

, dismissing an appeal for lack of jurisdiction under § 1292(a)(1), we explained that “ when determining our jurisdiction, we must examine the substance

9 The Tenth Circuit found its own analysis of §
1292 (a)(1) instructive in developing an analytical approach to § 16 of the FAA. See Conrad , 585 F.3d at 1385 (citing Pimentel & Sons Guitar Makers, Inc. v. Pimentel , 477 F.3d 1151, 1153 (10th Cir. 2007)).20 o f the order rather than merely its language.” U.S. Fire Ins. Co. v. Asbestospray, Inc. , 182 F.3d 201, 207 (3d Cir. 1999) (citing Cromaglass Corp. v. Ferm, 500 F.2d 601, 604 (3d Cir. 1974) (en banc) ). We noted that “the labels attached by the
district cou rt to its order are not determinative ,” i d. (quoting Gregory v. Depte, 896 F.2d 31, 38 n. 14 (3d Cir. 1990) (Becker, J., concurring in part and dissenting in part)) (internal quotation mark omitted)

, and thus looked to the operative terms of the January 199 8 order before us as well as the underlying motion, which was a “motion seeking clarification of the original restraining order

, ” i d. at 206. We
then concluded that the order did not modify a June 1997 injunction , but rather, clarified its scope , notwiths tanding the district court’s use of the term “MODIFIED” in its January
1998 order , and that, as such, it was not appealable under § 1292(a)(1)

. Id. at 207.

Likewise, we hold that to determine whether an order
constitutes an order that is appealable unde r § 16 , w e examine
the label and the operative terms of the district court’s order

, 10

10 We recognize that many, if not most, district cour t orders have no label or title besides “ORDER.” Where that is the case, we will focus on the terms of the order. In determining jurisdiction under § 16, however, w e decline to conduct an extensive review of a district court’s accompanying memoranda. Se e Conrad , 585 F.3d at 1384 (rejecting an approach that “would require courts of appeals carefully to parse the district court motions and memoranda to determine, factually, whether the arguments pressed in the district court sufficiently raised the concern s of the FAA to deem the motion brought ‘under section 3’ or ‘under section21 as well as the caption and relief requested in the underlying
motion. A n explicit reference to the FAA, namely §§ 3, 4, or 206, in the caption of a motion is not disposit ive, although “those hoping to avail themselves of the immediate appeal provided for in the FAA would do well” to “caption the [ ir ]
motion in the district court as one brought under [the] FAA.”
Conrad , 585 F.3d at 1385. We have exercised jurisdiction
wher e motions are labeled simply

— but clearly

— “ motions t o compel arbitration

, ” so a party’s failure to cite the governing provision of the FAA does not necessarily preclude jurisdiction. See, e.g.

, Guidotti , 716 F.3d at 770

- 71 & n.3.
Nor does a district court ’s subse quent mislabeling of a properly

- captioned motion to compel arbitration as a motion
to dismiss or for summary judgment always place an order
outside the scope of § 16. Cf. Asbestospray , 182 F.3d at 207 (attributing the district court’s use of the t erm “MODIFIED” in its order following a motion to clarify to a “mistake in draftsmanship”). But if a motion does not at least request an order compelling arbitration or an order directing that arbitration proceed, then the d enial of that motion is not

app ealable under § 16(a)(1)(B) or (C). Mere “offhand
references” to the FAA or to arbitration are not sufficient.
See Conrad , 585 F.3d at 1386.

Importantly, w e do not read § 16 as barring jurisdiction where both a motion to compel arbit ration and a

4’”); cf. Arthur Andersen , 556 U.S. at 628

- 29 (expressing a preference for determining jurisdiction under § 16 by focusing on the “category of order appealed from” rather than

enga ging in a fact

- intensive jurisdictional inquiry).22 motio n to dismiss (or a motion for summary judgment) are made in the alternative . While the FAA does not discuss a remedy of dismissal, it does not explicitly preclude requests for multiple forms of relief , and in Guidotti , we exercised jurisdiction under § 16 where the defendants filed motions to dismiss simultaneously with their motions to compel
arbitration. See Guidotti

, 716 F.3d at 767. Other courts have
also exercised jurisdiction over appeals where defendants filed motions to compel arbitration or, in the alternative, to
dismiss. See, e.g.

, Cappuccitti v. DirecTV, Inc. , 623 F.3d 1118, 1121 (11th Cir. 2010); Suburban Leisure Ctr., Inc. v. AMF Bowling Prods., Inc. , 468 F.3d 523, 524

- 25 (8th Cir. 2006) ; see also Grosvenor , 733 F.3d at 1000 (“Had Qwest

sou ght an order granting summary judgment on the issue of
contract formation and an order compelling arbitration, there would be no question as to our jurisdiction

. ”). However , w e decline to treat a “request for an over

- favorable remedy of
dismissal

, ” Fit Te ch , 374 F.3d at 6, as including a request for an order compelling arbitration. B ecause the former would not invoke the statutory requirements of § 4 of the FAA , it

cannot trigger the right to interlocutory appeal under § 16. Cf. Lloyd , 369 F.3d at 270

- 71 ( analyzing the incompatibility of the remedy of dismissal and the statutory scheme of the
FAA ).

C. Application to DeViedma’s Appeal

Given the analytical framework we adopt today , the

o rder before us is clearly not appealable under § 16. The
Orde r provided: “Defendant Gaspar DeViedma’s Motion for Summary Judgment (Doc. Nos. 81, 82, and 84) is DENIED as to Count IV for Breach of Fiduciary Duty. The Motion is otherwise GRANTED.” (App. 3.) It made no reference to a motion to compel or to the FAA. As for DeViedma’s motion

,23 the motion was en titled

, “M otion for Summary Judgment of
Defendant Gaspar DeViedma ,” and it began : “Pursuant to Federal Rule of Civil Procedure 56, defendant Gaspar DeViedma moves for summary judgment on Counts IV and V
of the Fi rst Amended Complaint.” (DeViedma’s Mot. for Summ. J. 1, ECF No. 81.) It went on to state: “Mr. DeViedma respectfully requests that this Court enter summary judgment in its favor and dismiss plaintiffs’ case with prejudice.” ( Id. ) In sum, DeViedma’s mo tion was not captioned as a motion to compel, did not reference § 4 or § 206, and did not request an order compelling arbitration. Rather, it was captioned as a motion for summary judgment,
reference d Rule 56, and request ed only summary judgment
and dismi ssal with prejudice. 11 Further, there is no indication
that the purported motion to compel complied with the procedural requirements of § 4. Even if we presumed Devon’s “failure, neglect, or refusal . . . to arbitrate,” there is
no indication that DeViedm a gave Devon “[f]ive days’ notice in writing” of his impending motion to compel via “[s]ervice . . . in the manner provided by the Federal Rules of Civil Procedure.” 9 U.S.C. § 4. Therefore, the motion was clearly

11 Looking at DeViedma’s Memorandum of Law in support of the motion would not change our conclusion. See App. 186 (“Pursuant to Fed. R. Civ. P. 56, defendant . . . moves for summary judgment in his favor . . . .”); App. 189 (“DeViedma is entitled to a dismissal with prejudice of the claims against him . . . .”); App. 243 (stating in the conclusion that: “DeViedma is entitled to summary judgment in his favor on all claims against him . . . , and these claims should be dismissed with prejudice.”).24 one for summary judgment, not to compel arbitration, and we lack jurisdiction over the order denying it

.

We accept at face value that Devon was on notice about DeViedma’s preference for arbitration over litigation

. Indeed, Devon acknowledged as much in its opposition to DeViedma’s summary judg ment motion , and the District Court even remarked, in its O rder: “We revisit whether Devon must be compelled to arbitrate its claims against
DeViedma

. . . . ” (App. 24.) Thus

, no one was “prejudicially
misled” in this case by DeViedma’s styling of his mo tion as a motion for summary judgment rather than a motion to compel. See Fit Tech , 374 F.3d at 6. But our jurisdiction
does not turn on whether the non

- moving party was prejudiced or confused. Rather, it turns on the category of the
order from which an appeal is taken

, and we identify that category by looking to the terms of the order , the caption of the underlying motion, and the relief requested within

. Because DeViedma filed a motion for summary judgment and not a motion to compel arbitration, we la ck jurisdiction under § 16 of the FAA.

III. Conclusion

W e conclude that the District Court’s denial of DeViedma’s Motion for Summary Judgment is not an appealable order under § 16(a)(1)(C) of the FAA. Accordingly, we will dismiss this interlocutory appeal for lack of jurisdiction.