UNITED STATES OF AMERICA, еx rel. PAUL DORSA, Plaintiff-Appellee, v. MIRACA LIFE SCIENCES, INC., Defendant-Appellant.
No. 20-5007
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
December 30, 2020
20a0391p.06
RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b). Appeal from the United States District Court for the Middle District of Tennessee at Nashville. No. 3:13-cv-01025—Bernard A. Friedman, District Judge. Argued: October 22, 2020.
COUNSEL
ARGUED: David Barmak, MINTZ, LEVIN, COHN, FERRIS, GLOVSKY, AND POPEO, P.C., Washington, D.C., for Appellant. Nathan C. Sanders, NEAL & HARWELL, PLC, Nashville, Tennessee, for Appellee. ON BRIEF: David Barmak, Jennifer R. Budoff, MINTZ, LEVIN, COHN, FERRIS, GLOVSKY, AND POPEO, P.C., Washington, D.C., for Appellant. Nathan C. Sanders, James F. Sanders, William T. Ramsey, NEAL & HARWELL, PLC, Nashville, Tennessee, for Appellee.
ROGERS, J., delivered the oрinion of the court in which MOORE, J., joined. BATCHELDER, J. (pp. 7–10), delivered a separate dissenting opinion.
ROGERS, Circuit Judge. Paul Dorsa filed suit under the False Claims Act against Miraca Life Sciences, Inc., alleging unlawful retaliation. Miraca sought to dismiss the retaliation claim because Dorsa—a former Miraca executive—had agreed to binding arbitration as a provision of his еmployment agreement with the company. The district court denied Miraca‘s motion to dismiss because it found that the arbitration clause did not cover Dorsa‘s retaliation claim. Miraca appeals the district court‘s order and Dorsa seeks to dismiss the appeal. Because the district court‘s order was not a final order, and becausе the narrow provision of the Federal Arbitration Act that authorizes immediate appeals of certain interlocutory orders does not apply here, the court lacks jurisdiction.
Dorsa was working as an executive of Miraca when he learned of a purported scheme to defraud the government. On September 20, 2013, Dorsa filed a qui tam aсtion under seal against Miraca, alleging two counts of violations of the False Claims Act (“FCA”), payment by mistake of fact, and unjust enrichment. Dorsa was fired on September 24, 2013, and his first amended complaint, filed under seal in November 2013, alleged an additional claim for retaliation under the FCA pursuant to
Miraca then moved to dismiss the remaining retaliation claim “under
The district court denied the motion to dismiss. The employment agreement‘s arbitration clause requires that,
in the event of any dispute, claim or disagreement arising out of or in connection with this Agreement . . . the parties shall first submit the dispute, claim or disagreement to non-binding mediation [and if that is unsuccessful,] . . . then either party may submit the dispute, claim or disagreement to binding arbitration.
The district court held that the arbitration clausе did not cover the FCA retaliation claim because “an FCA retaliation claim does not arise from, or have any connection with, an employment agreement, or any provision thereof, even if it may, as in the present case, have a connection with plaintiff‘s employment relationship.” Miraca subsequently filed a notice of appeal stating that it was appealing “as a matter of right pursuant to
Dorsa filed a motion to dismiss the appeal for lack of jurisdiction, arguing that neither
We lack jurisdiction over this appeal. The only pоssible source of appellate jurisdiction here is
The district court‘s order denied Miraca‘s motion to dismiss; it did not refuse a request to stay the action to allow for arbitration, nor deny a petition for an order directing the parties to arbitrate. Miraca argues that the district court‘s order had “the exact impact” as one “refusing to stay an action” or “denying a petition to order arbitration,” but that is not enough to establish appellate jurisdiction. Even if we were to accept the premise that the order had the same impact as one refusing to stay the action or denying a
This conclusion is consistent with our prior opinions in Simon v. Pfizer, Inc. and Turi v. Main Street Adoption Services, LLP. We held in Simon that there was appellate jurisdiction under
Notes
least in passing, that in both Simon and Turi we had “recognized that the movant sought to compel arbitration.” Taylor v. Pilot Corp., 697 F. App‘x 854, 861 (6th Cir. 2017). In short, Miraca cites no precedent in our court holding that there is appellate jurisdiction under the FAA where a defendant never sought a stay or an order compelling arbitration.
Other courts of appeals have applied a similarly strict view of
the court must look beyond the caption to the essential attributes of the motion itself . . . to determine whether it is plainly aрparent from the four corners of the motion that the movant seeks only the relief provided for in the FAA, rather than any other judicially-provided remedy.
Conrad v. Phone Directories Co., 585 F.3d 1376, 1385 (10th Cir. 2009); accord Wheeling Hosp., Inc. v. The Health Plan of the Upper Ohio Valley, Inc., 683 F.3d 577, 585–86 (4th Cir. 2012) (applying the Conrad test). Adopting this approach, the Fourth Circuit noted that the standard from Conrad “strikes a balance between form and substance, and is in harmony with the other circuits to have considered the issue.” Wheeling, 683 F.3d at 585 & n.2 (discussing Bombardier Corp. v. National R.R. Passenger Corp., 333 F.3d 250, 253-54 (D.C. Cir. 2003); Wabtec Corp. v. Faiveley Transp. Malmo AB, 525 F.3d 135, 139–40 (2d Cir. 2008); and Fit Tech, Inc. v. Bally Total Fitness Holding Corp., 374 F.3d 1, 5–6 (1st Cir. 2004)). Since Conrad was decided, the courts of appeals in the Third and Ninth Circuits have also explicitly followed its approach. See Devon Robotics, LLC v. DeViedma, 798 F.3d 136, 145–47 (3d Cir. 2015); W. Sec. Bank v. Schneider Ltd. P‘ship, 816 F.3d 587, 589–90 (9th Cir. 2016).
As the discussion of Simon and Turi above illustrates, this court‘s precedent has not required that the party seeking to enforce an arbitration clause and establish appellate jurisdiction have sought in thе lower court “only the relief provided for in the FAA.” Conrad, 585 F.3d at 1385 (emphasis added). As the Third Circuit held in Devon Robotics, “we do not read
have also exercised jurisdiction over appeals where defendants filed motions to compel arbitration or, in the alternative, to dismiss.” Id. (collecting cases).
This somewhat less strict approach still requires dismissal in this case. Nowhere in its motion to the district court or briefing in support thereof did Miraca seek the relief provided for in the FAA. Miraca‘s motion requested dismissal; its concluding sentence asked that the district court “dismiss Count V of the Second Amended Complaint with prejudice.” Miraca‘s brief in support of the motion discussed Rules 12(b)(1), (3), and (6), and its concluding sentence asserts that Dorsa‘s “retaliation claim therefore must be dismissed.” The motion was, in the words of the Tenth Circuit in Conrad, 585 F.3d at 1386, “a request for judicial relief in the form of dismissal, rather than a request that the court refer the case to an arbitrator” or stay the case to allow for arbitration proceedings. Accordingly, Miraca‘s many refеrences to the FAA are unavailing to establish appellate jurisdiction because simply citing the statute is not enough to satisfy
The appeal is dismissed.
UNITED STATES OF AMERICA, ex rel. PAUL DORSA, Plaintiff-Appellee, v. MIRACA LIFE SCIENCES, INC., Defendаnt-Appellant.
No. 20-5007
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
December 30, 2020
DISSENT
ALICE M. BATCHELDER, Circuit Judge, dissenting. Because I believe that we have jurisdiction to hear Miraca‘s appeal, I respectfully dissent.
The Sixth Circuit, like all federal appellate courts, has “jurisdiction of appeals from all final decisions of the district courts of the United States.”
The key question, then, is whether Miracа‘s motion to dismiss “was based on the parties’ arbitration clause.” See Turi, 633 F.3d at 501. Or, put differently, whether we can construe Miraca‘s motion to dismiss as a request to compel arbitration, insofar as that grants us jurisdiction. As I read it, our precedent holds that we can.
I
In Simon v. Pfizer, Inc., 398 F.3d 765 (6th Cir. 2005), we held that, with respect to a district court‘s “refusal to enforce, through dismissal or stay, an agreement to arbitrate, this Court has independent jurisdiction over that question under the [FAA],
not a stay pending arbitration. Nevertheless, we held that we had jurisdiction under the FAA to hear Pfizer‘s appeal because the district court refused “to enforce, through dismissal or stay, an agreement to arbitrate.” Id.
The majority distinguishes Simon because Pfizer‘s motion alternatively suggested a stay pending arbitration. Fair point—Miraca‘s motion did not alternatively move the district court to compel arbitration.
Nor did that occur in Turi.1 There, the defendant, Main Street, moved to dismiss on the grounds that, among other things, Turi‘s claims were subject to a binding arbitration agreement. Main Street‘s motion to dismiss noted that “arbitration is compulsory” under the parties’ arbitration agreement, but it never specifically requested that the district court compel arbitration under Section 4 of the FAA. It only sought dismissal. We held that the district court‘s denial of the motion to dismiss was immediately aрpealable under the FAA because the motion “was based on the parties’ arbitration clause.” Turi, 633 F.3d at 501.
The majority distinguishes Turi by using language from that decision to frame Main Street‘s motion as arguing “that all of the claims should be referred to an arbitrator.” Id. at 500. But, in its motion, Main Street sought dismissal because the case was subject to the parties’ binding arbitration agreement. At no point did Main Street seek referral to an arbitrator. Nor did Main Street seek to compel arbitration, nor seek a stay pending arbitration. Main Street‘s motion to dismiss, like Miraca‘s, sought only dismissal. As I read it, Turi gives us jurisdiction to decide this appeal.
II
Turi is binding precedent. See, e.g., Taylor v. Pilot Corp., 697 F. App‘x 854, 861 (6th Cir. 2017) (“We found jurisdiction in Turi and Simon despite those orders’ failure to fit facially into an appealable ‘category’ under the FAA—such as an order denying a petition under section 4 or an order refusing to grant a stay under section 3[,] because in both Turi and Simon, the defendants’ motions to dismiss functioned as requests to compel arbitration.” (quotation and citations omitted)); Hammond v. Floor & Décor Outlets of Am., Inc., No. 3:19-cv-01099, 2020 WL 4700829, at *4 n.3 (M.D. Tenn. Aug. 12, 2020) (“The Motions to Dismiss are effectively motions to compel arbitration, as the relief they seek is, in part, an order compelling the opt-in plaintiffs to arbitrate.”). Indeеd, other circuits have understood Sixth Circuit precedent as adopting “a broad approach” that interprets
Here, Miraca filed its motion to dismiss under the FAA, arguing that Dorsa‘s “claim cannot be pursued in this court . . . because Dorsa explicitly agreed to resolve all claims [arising] out of his employment through binding arbitration with the American Arbitration Association in Dallas, Texas.” Miraca made two arguments supporting dismissаl:
Because Dorsa has failed to pursue arbitration in spite of a compulsory arbitration clause, he has failed to state a cause of action and the claim should be dismissed under Rule 12(b)(6). Alternatively, because Dorsa agreed to arbitrate his claim before the AAA, this court does not have subject matter jurisdiction over the claim, and the сourt is not a proper venue and Count V may also be dismissed under Rules 12(b)(1) and 12(b)(3).
Likewise, in its memorandum in support of its motion to dismiss, Miraca argued:
Defendant Miraca Life Sciences, Inc. has moved to dismiss Plaintiff Paul Dorsa‘s False Claims Act retaliation claim with prejudice because that claim does not belong in this court; it should have been filed with the American Arbitratiоn Association (AAA) as mandated by Dorsa‘s Employment Agreement with Miraca. Specifically, the dispute resolution provision in Dorsa‘s Employment Agreement required him to mediate and then arbitrate all disputes arising out of or in connection with his employment. His retaliation claim is such a dispute, and it is well settled that the Federal Arbitration Act (FAA) requires the enforcement of Dorsa‘s agreement to arbitrate that claim. This court therefore does not have jurisdiction and is an improper forum for resolution of Dorsa‘s retaliation claim.
While Miraca never specifically asked that the district court compel arbitration under Section 4 of the FAA and did not formally file a Motion to Compel Arbitration, neither did Main Street in Turi.
Miraca‘s motion to dismiss closely mirrors Main Street‘s. Miraca sought dismissal under Rules 12(b)(1), (3), and (6) “because Dorsa explicitly agreed to resolve all claims . . . arising out of his employment through binding arbitration.” Main Street sought dismissal under Rules 12(b)(1), (2), (3), and (6) because “this case [was] subject to the parties’ binding arbitration agreement.” Both Main Street and Miraca sought dismissal because the plaintiffs in their cases agreed to binding arbitration, giving up jurisdiction in federal court. If the defendants’ motion to dismiss in Turi was the functional equivalent to a motion to compel arbitration, then I would find the same to be true here for Miraca‘s motion to dismiss.
III
Based on the foregoing, I believe that we have appellate jurisdiction and would deny Dorsa‘s mоtion to dismiss the appeal. Therefore, I respectfully dissent.