2015 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-5-2015

Devon Robotics LLC v. Gaspar DeViedma

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"Devon Robotics LLC v. Gaspar DeViedma" (2015). 2015 Decisions. Paper 833.

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 12-3676

_____________

DEVON ROBOTICS, LLC; DEVON HEALTH SERVICES 

INC.; JOHN A. BENNETT, M.D.

 

v.

GASPAR DEVIEDMA; 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, 2014

Before: MCKEE, Chief Judge, GREENAWAY, 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 Appellees

James P. Golden (Argued)

Hamburg & Golden

1601 Market Street

Suite 3310

Philadelphia, PA 19103

 Counsel for Appellant

_______________

OPINION OF THE COURT

_______________

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 Appellant urges us to sweep within the ambit of 

appellate jurisdiction under § 16 of the FAA on the ground 

that it is the equivalent of an order denying a petition to 

compel arbitration. We hold that § 16 does not sweep so 
3

broadly and therefore will dismiss this appeal for lack of 

jurisdiction.

I. Background

A. Factual History1

Appellee Devon Robotics, LLC (“Devon”) acquired 

the rights to distribute two robotic medical devices, CytoCare 

and i.v. Station, from an Italian corporation, Health Robotics, 

S.r.l. (“Health Robotics”). Appellant Gaspar DeViedma 

(“DeViedma”), the general counsel for Health Robotics, 

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 shall 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 consulting services to be performed by 

DeViedma. Pursuant to that amendment, DeViedma began 

acting as Devon’s Chief Operating Officer (“COO”). 

Over the next few months, 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 turn, this led Itochu 

to bring a suit against Devon to recoup the $5 million as well 

as an unrelated debt. 

Shortly thereafter, 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 the termination letter to Devon in his 

capacity as 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 of 
5

Devon’s hospital customers telling them that Devon faced 

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 Devon 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 

extensive litigation followed. Over the next seventeen 

months, the parties expended considerable 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 The District Court dismissed the claims for 

conspiracy and tortious interference with prospective 

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 the 

parties 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 District Court rejected his 

arguments in favor of arbitration, but granted summary 

judgment on Devon’s tortious interference claim, leaving 

only Devon’s breach 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 appeal: 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 [Title 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 Devon raises this argument as a bar to jurisdiction, 

although we have generally treated waiver of the right to 

compel arbitration as a merits issue, not a jurisdictional one. 

See, e.g., In re Pharmacy Benefit Managers Antitrust Litig., 

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 compel 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 under § 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 

jurisdictional 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 Cir. 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 arbitration 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 ‘sequencing 

of jurisdictional issues,’” and we enjoy “leeway ‘to choose 

among threshold grounds for denying audience to a case on 

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, 584-85 (1999)). We need not reach 

Devon’s alternative 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, we possess jurisdiction over 

only “final decisions of the district 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 under § 206 to compel 

arbitration but, rather, a motion for summary judgment in 

favor of arbitration, and “[t]he 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 of 

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)). 

In 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 logic to treating a motion to 

dismiss in favor of arbitration like a motion to compel 

arbitration under § 16, but also posited that “linguistically, a 

motion to dismiss, even for failure to pursue the statutorily 

provided threshold arbitral remedy, is a far cry from a 

‘motion to compel arbitration.’” Id. at 349. Because we 

dismissed the appeal for lack of jurisdiction 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 begins 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) modifying, 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 instructed 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. HOVENSA, LLC, 369 F.3d 

263, 269 (3d Cir. 2004) (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, 318 F.3d 523, 535 (3d Cir. 

2003) (citations and quotation marks omitted). 

Further, the Supreme Court has repeatedly held that 

“statutes authorizing appeals are to be strictly construed.” 

Office of Senator Mark Dayton v. Hanson, 550 U.S. 511, 515 
11

(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 longestablished 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 somewhat 

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, the plain language of the FAA provides no 

support for exercising jurisdiction over an order denying a 

motion for summary judgment. Even when motivated by a 

conclusion that claims are not subject to arbitration, an order 

denying summary 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); see 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.,

Delaware Cnty. v. Fed. Hous. Fin. Agency, 747 F.3d 215, 221 

(3d Cir. 2014). 

2. Statutory Structure
12

The structure of the FAA further compels us to read § 

16 as excluding orders denying summary judgment. Section 

16 is strikingly specific in describing the categories 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 this title to compel arbitration.” 9 

U.S.C. § 16(a)(1)(B), (C) (emphasis added). These 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 court 

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 refusing 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 indicates that § 16 is not 

so elastic.

5

 

5 For 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 arbitration. 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 “side 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 

claims 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 upon 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, shall 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, the 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 immediately appealable under 9 U.S.C. § 

16(b),7an 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 instead 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 proceed” 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 required to undertake in analyzing 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 party 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 

agreement or the failure, neglect, or refusal to perform the 

same, as Section 4 of the FAA envisions.” Id. at 776 (internal 

citations and quotation marks omitted). 

Because of these prescribed procedures, 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 

applications 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)

That 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 

Courts 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, 

declining 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 no 
17

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)

(declining 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 Circuits, which 

have adopted a broad approach. Thus, in 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 and 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 during 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.3d 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 clause, is 

independently reviewable under the Federal Arbitration Act . 

. . .”).

The Tenth Circuit, on the other hand, has taken a 

functional approach, focusing on the relief requested by a 

motion and holding that “in order to invoke the appellate 

jurisdiction provided in § 16(a), the defendant in the district 
18

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 rather than any judicial 

determination—in his prayer for relief.” Conrad v. Phone 

Directories Co., 585 F.3d 1376, 1385 (10th Cir. 2009). The 

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 dismissal, 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) (articulating 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 Circuits in focusing

our § 16(a) inquiry on a movant’s requested relief. While the 

analytical approach we adopt here will not turn solely on the 

caption of a motion, we have two concerns with looking 

much farther. First, construing motions as “petitions under 

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 9-11. Second, jurisdiction over an 

appeal “must be determined by focusing upon the category of 

order appealed from,” Arthur Andersen LLP v. Carlisle, 556 

U.S. 624, 628 (2009) (quoting Behrens v. Pelletier, 516 U.S. 

299, 311 (1996)), and in fashioning any rule of appellate 

jurisdiction, predictability is paramount, see 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 

particular 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 summary 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 itself, both to ensure that a true motion to 

compel is not overlooked and to ensure that parties 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 this 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 refusing to 

dissolve or modify injunctions.” 28 U.S.C. § 1292(a)(1).9In 

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

of 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 court to its order are not determinative,” id. (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 1998 order before us as well as 

the underlying motion, which was a “motion seeking 

clarification of the original restraining order,” id. at 206. We 

then concluded that the order did not modify a June 1997 

injunction, but rather, clarified its scope, notwithstanding 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 under § 16, we examine 

the label and the operative terms of the district court’s order,

10

 

10 We recognize that many, if not most, district court 

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, we decline to 

conduct an extensive review of a district court’s 

accompanying memoranda. See 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 concerns of the FAA to 

deem the motion brought ‘under section 3’ or ‘under section 
21

as well as the caption and relief requested in the underlying 

motion. An explicit reference to the FAA, namely §§ 3, 4, or 

206, in the caption of a motion is not dispositive, 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 

where motions are labeled simply—but clearly—“motions to 

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 subsequent 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 term “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 denial of that motion is not

appealable 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, we do not read § 16 as barring 

jurisdiction where both a motion to compel arbitration 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 

engaging in a fact-intensive jurisdictional inquiry). 

 
22

motion 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 

sought 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, we 

decline to treat a “request for an over-favorable remedy of 

dismissal,” Fit Tech, 374 F.3d at 6, as including a request for 

an order compelling arbitration. Because 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 

order before us is clearly not appealable under § 16. The 

Order 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 entitled, “Motion 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 First 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 motion 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, 

referenced Rule 56, and requested only summary judgment 

and dismissal 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 DeViedma 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 judgment motion, and the District 

Court even remarked, in its Order: “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 motion 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 lack jurisdiction under 

§ 16 of the FAA.

III. Conclusion

We 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.