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Square Peg in a Round Hole: Are Arbitration Motions Really Rule 12 Motions?

Michael P Daly


  • The U.S. Supreme Court’s focus on arbitration began more than a decade ago, but never has the Court considered the most fundamental arbitration question of all: What is a motion to compel arbitration anyway?
  • Most circuit courts have tried to fit arbitration motions into Rules 12(b)(1), (b)(3), or (b)(6).
  • The better approach would be to treat arbitration motions as motions under the Federal Arbitration Act, not motions under Rule 12.
Square Peg in a Round Hole: Are Arbitration Motions Really Rule 12 Motions?
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Arbitration continues to capture the Supreme Court’s attention. That focus on arbitration began more than a decade ago, when the Court addressed the enforceability of agreements and the preemption of state laws that disfavor them in one way or another. See Stolt-Nielsen v. Animalfeeds Int’l Corp., 559 U.S. 662 (2010); AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011); Am. Express Co. v. Italian Colors Rest., 570 U.S. 228 (2013); DIRECTV, Inc. v. Imburgia, 577 U.S. 47 (2015); Kindred Nursing Ctrs. Ltd. P’ship v. Clark, 581 U.S. 246 (2017); Epic Sys. Corp. v. Lewis, 584 U.S. 497 (2018); Viking River Cruises, Inc. v. Moriana, 596 U.S. 639 (2022).

The Court then shifted to esoteric questions about delegating decisions to arbitrators, see Henry Schein Inc. v. Archer & White Sales Inc., 139 S. Ct. 524 (2019); exempting certain employees from arbitration, see Sw. Airlines Co. v. Saxon, 596 U.S. 450 (2022); waiving the right to compel arbitration, see Morgan v. Sundance, Inc., 596 U.S. 411 (2022); and staying litigation during appeals from denials of motions to compel arbitration. See Coinbase, Inc. v. Bielski, 599 U.S. 736 (2023). And soon it will decide whether courts that have compelled arbitration can dismiss actions rather than stay them, see Smith v. Spizzirri, No. 22-1218 (U.S. Jan. 12, 2024), and will revisit the delegation of threshold questions to an arbitrator, see Coinbase, Inc. v. Suski, No. 23-3 (U.S. Nov. 3, 2023).

But never has the Court considered the most fundamental arbitration question of all: What is a motion to compel arbitration anyway? Many courts have reflexively regarded a motion to compel arbitration as some sort of motion under Federal Rule of Civil Procedure 12—for example, a jurisdictional challenge under 12(b)(1), a venue challenge under 12(b)(3), or a merits challenge under 12(b)(6). While that approach has some superficial appeal, the reality is that arbitration motions do not fit comfortably within those rules. What’s more, there is no need to make them fit; and, in fact, doing so can cause considerable confusion about a whole host of issues. The better approach would be to treat arbitration motions not as motions under Rule 12 but as motions under the Federal Arbitration Act (FAA).

The Tricky Taxonomy of Arbitration Motions

In the mine-run of cases, courts need not consider—much less decide—whether arbitration motions are brought under Rule 12(b)(1), (b)(3), or (b)(6), or some other rule or statute for that matter. But the issue does arise—and it can be more than mere pettifoggery.

Take, for example, a plaintiff who responds to an arbitration motion by filing an amended complaint that might make the dispute seem less arbitrable. Can she amend as of right? If the arbitration motion is treated as a motion “under Rule 12(b),” she has the right to amend within 21 days of the filing of that motion. See Fed. R. Civ. P. 15(a)(1)(B). If it isn’t a 12(b) motion, however, she would need leave of court or consent of the other parties. See Fed. R. Civ. P. 15(a)(2).

And what about defendants with multiple Rule 12 defenses? For instance, if a defendant has a personal jurisdiction defense under Rule 12(b)(2), a merits defense under Rule 12(b)(6), and an arbitration agreement with the plaintiff, what is the proper order of operations? Put differently, how can the defendant assert those defenses without risking waiver of its personal jurisdiction defense (which can be waived by omitting it from any motion “under” Rule 12) or its arbitration rights (which can be waived through substantial litigation of the merits of the dispute)? See Fed. R. Civ. P. 12(g)(2), (h)(1). Treating arbitration motions like Rule 12 motions turns preliminary motion practice into a navigation between Scylla and Charybdis.

Then there is the matter of what legal standard applies. Different subsections of Rule 12(b) trigger different burdens of proof, different approaches to considering matters beyond the pleadings, and different standards of review on appeal. Most courts agree that arbitration motions can be decided based on the written submissions unless there are genuine issues of material fact regarding contract formation, in which case a hearing—or, if requested, a trial—would become necessary. But that does not clearly correspond with the standards applied under Rules 12(b)(1), (b)(3), or (b)(6).

The Current Approaches

With one exception, the circuit courts that have reached this issue have tried to squeeze arbitration motions into Rules 12(b)(1), (b)(3), or (b)(6).

The U.S. Court of Appeals for the First, Second, Fourth, Fifth, Sixth, Tenth, Eleventh, and D.C. Circuits have not had occasion to squarely address this issue. Some lower courts within those circuits have done so, but the circuit courts themselves have not.

The U.S. Court of Appeals for the Third and Eighth Circuits have held that arbitration motions are analogous to Rule 12(b)(6) motions. See City of Benkelman, Nebraska v. Baseline Eng’g Corp., 867 F.3d 875, 881 (8th Cir. 2017) (“Upon careful review of the relevant authority, we agree with the City that Baseline’s motion is properly analyzed under either Rule 12(b)(6) or Rule 56.”); Palcko v. Airborne Express, Inc., 372 F.3d 588, 597 (3d Cir. 2004) (“Our prior decisions support the traditional practice of treating a motion to compel arbitration as a motion to dismiss for failure to state a claim upon which relief can be granted.”). The Eighth Circuit’s more recent reasoning is instructive, at least insofar as its elimination of Rules 12(b)(1) and (b)(3) is concerned:

Upon careful review of the relevant authority, we agree with the City that Baseline’s motion is properly analyzed under either Rule 12(b)(6) or Rule 56. To be sure, the motion does not sit squarely on all fours with either rule. We are nonetheless satisfied that, unlike the cases interpreting Rules 12(b)(1) or (b)(3), the legal authority does not forbid parties from using Rules 12(b)(6) or 56 to enforce an arbitration agreement. . . . We decline to press the matter by deciding between Rule 12(b)(6) and 56, because summary judgment standards apply either way.

City of Benkelman, 867 F.3d at 881–82 (citing Atl. Marine Constr. Co. v. U.S. Dist. Ct. for the W. Dist. of Tex., 571 U.S. 49, 55 (2013)).

By contrast, the U.S. Court of Appeals for the Ninth and Federal Circuits have (albeit without much meaningful analysis) treated arbitration motions like challenges to subject matter jurisdiction under Rule 12(b)(1). See Geographic Expeditions, Inc. v. Est. of Lhotka, 599 F.3d 1102, 1106–07 (9th Cir. 2010); Harris v. United States, 841 F.2d 1097, 1099 (Fed. Cir. 1988). As the Eighth Circuit explained, however, “[j]ust as a forum-selection clause has no bearing on the issue of whether venue is ‘wrong’ or ‘improper,’ an arbitration agreement has no relevance to the question of whether a given case satisfies constitutional or statutory definitions of jurisdiction.” City of Benkelman, 867 F.3d at 880–81 (citing Atl. Marine Constr. Co., 571 U.S. at 55).

That leaves the U.S. Court of Appeals for the Seventh Circuit, where different panels have reached different results. Compare Brickstructures, Inc. v. Coaster Dynamix, Inc., 952 F.3d 887, 890 (7th Cir. 2020) (“Though [the] motion bore a Rule 12(b)(3) sticker, the venue argument was rooted in enforcement of the arbitration agreement. . . . Whatever it was called, [the] motion to compel arbitration was in substance a motion under § 4 of the FAA. . . .”), and Cont’l Cas. Co. v. Am. Nat’l Ins. Co., 417 F.3d 727, 732 (7th Cir. 2005) (avoiding the issue but discussing authority for the proposition that arbitration motions are “entirely separate from the Rule 12(b) rubric”), with Grasty v. Colo. Tech. Univ., 599 F. App’x 596, 597 (7th Cir. 2015) (“Motions to compel arbitration thus concern venue and are brought properly under Federal Rule of Civil Procedure 12(b)(3), not Rule 12(b)(1).”). But the more recent and more reasoned of those decisions is Brickstructures, which recognizes that arbitration motions might be more at home somewhere other than Rule 12. Indeed, the Grasty decision is unpublished and nonprecedential. See Grasty, 599 F. App’x 596; see also Fed. R. App. P. 32.1(b).

The Better Approach

Arbitration motions really have nothing to do with whether a court has subject matter jurisdiction, see Fed. R. Civ. P. 12(b)(1); whether an action should have been brought in a different federal court, see Fed. R. Civ. P. 12(b)(3); or whether a claim lacks merit, see Fed. R. Civ. P. 12(b)(6). Rather than force a square peg into a round hole, courts should simply treat them as motions “under” the FAA. That makes more sense as a linguistic matter, as the statute—not any Federal Rule of Civil Procedure—is the font of authority for filing arbitration motions, staying litigation, and compelling arbitration. See 9 U.S.C. § 3 (permitting an “application of one of the parties” to stay litigation “until such arbitration has been had in accordance with the terms of the agreement”); id. § 4 (permitting a “petition . . . for an order directing that such arbitration proceed in the manner provided for in such agreement”); id. (authorizing an “order directing the parties to proceed to arbitration”); id. § 6 (“Any application . . . shall be made and heard in the manner provided by law.”).

There is also no need—procedural, practical, or otherwise—to treat arbitration motions as motions “under Rule 12.” Courts do not do that with other threshold motions that invoke statutory rights or prudential rules—e.g., motions to transfer venue, which are brought under not Rule 12(b)(3) but 28 U.S.C. § 1404 (if transferring to a federal court) or the forum non conveniens doctrine (if transferring to another court). See Atl. Marine Const. Co., 571 U.S. at 59 (“Although a forum-selection clause does not render venue in a court ‘wrong’ or ‘improper’ within the meaning of § 1406(a) or Rule 12(b)(3), the clause may be enforced through a motion to transfer under § 1404(a).”); id. at 60 (“[T]he appropriate way to enforce a forum-selection clause pointing to a state or foreign forum is through the doctrine of forum non conveniens.”). Nor do they do so with motions to stay, which invoke not Rule 12 but “the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants.” Landis v. N. Am. Co., 299 U.S. 248, 254 (1936); see also Int’l Ass’n of Entrepreneurs of Am. v. Angoff, 58 F.3d 1266, 1271 (8th Cir. 1995) (“While pre-answer motions are ostensibly enumerated in Fed. R. Civ. P. 12(b), district courts have the discretion to recognize additional pre-answer motions, including motions to stay cases within federal jurisdiction. . . .”). There is no principled reason to do otherwise with arbitration motions.

What’s more, allowing amendment as of right in response to arbitration motions—which would necessarily follow from treating them as Rule 12 motions—does not serve the interests promoted by Rule 15(a)(1). The advisory committee’s notes explain that responsive amendments allow plaintiffs to “meet the arguments in the motion” because doing so may “avoid the need to decide the motion,” “reduce the number of issues to be decided,” or “expedite determination of issues. . . .” Fed. R. Civ. P. 15 advisory committee’s note to 2009 amendment. For example, if a plaintiff neglects to allege an essential element or join a necessary defendant, letting her respond to a motion to dismiss by adding a missing fact or party makes good sense as doing so can expedite actions and conserve resources.

The same cannot be said of amendments in response to arbitration motions. Indeed, such motions are not even confined to the pleadings, as courts may consider evidence attached to the briefs “in the manner provided by law for the making and hearing of motions. . . .” 9 U.S.C. § 6. In other words, if a plaintiff thinks that new facts may have some bearing on the disposition of an arbitration motion, she can simply supply them in a declaration under 28 U.S.C. § 1746 without amending under Rule 15. Allowing amendments in such situations would unnecessarily prolong an action—which is the opposite of what both Rule 15(a)(1) and the FAA were designed to do.

The better view, then, is that arbitration motions are motions under the FAA, not under Rule 12. See Brickstructures, Inc., 952 F.3d at 890; Cont’l Cas. Co., 417 F.3d at 732 n.7; see also Raasch v. NCR Corp., 254 F. Supp. 2d 847, 851 (S.D. Ohio 2003) (“It must be noted first that NCR’s Motion to Dismiss and Compel Arbitration is not a motion which comes within the ambit of Rule 12(b) of the Federal Rules of Civil Procedure, which allows a defendant to move to dismiss on, among other things, grounds that the court lacks subject matter jurisdiction or that the plaintiff’s claim fails to state a claim upon which relief can be granted. Instead, the standard for ruling on NCR’s Motion is defined by the [FAA].”); Tenn. Tractor, LLC v. WH Adm’rs, Inc., No. 17-02829, 2018 WL 1277751, at *2 (W.D. Tenn. Mar. 12, 2018) (“Such motions are governed rather by the [FAA].”); Thebeau v. CitiMortgage, Inc., No. 16-0107, 2016 WL 4011647, at *3 (E.D. Mo. July 27, 2016) (“The motion to compel arbitration is also not a motion under Rule 12(b), (e), or (f).”).