Antonia Rota-McLarty v. Santander Consumer USA, Incorporated ( 2012 )


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  •                       PUBLISHED
    
    
    UNITED STATES COURT OF APPEALS
                 FOR THE FOURTH CIRCUIT
    
    
    ANTONIA ROTA-MCLARTY,                
                   Plaintiff-Appellee,
                  v.
                                             No. 11-1597
    SANTANDER CONSUMER USA,
    INCORPORATED,
                  Defendant-Appellant.
                                         
           Appeal from the United States District Court
            for the District of Maryland, at Baltimore.
              William D. Quarles, Jr., District Judge.
                      (1:10-cv-00908-WDQ)
    
                   Argued: September 20, 2012
    
                   Decided: November 28, 2012
    
        Before SHEDD and DUNCAN, Circuit Judges, and
      Timothy M. CAIN, United States District Judge for the
         District of South Carolina, sitting by designation.
    
    
    
    Reversed by published opinion. Judge Duncan wrote the opin-
    ion, in which Judge Shedd and Judge Cain joined.
    2          ROTA-MCLARTY v. SANTANDER CONSUMER USA
                                   COUNSEL
    
    ARGUED: John A. Houlihan, EDWARDS WILDMAN
    PALMER, LLP, Boston, Massachusetts, for Appellant.
    Thomas Joseph Minton, GOLDMAN & MINTON, PC, Balti-
    more, Maryland, for Appellee. ON BRIEF: Thomas H. Wint-
    ner, EDWARDS ANGELL PALMER & DODGE, LLP,
    Boston, Massachusetts, for Appellant. Bernard T. Kennedy,
    THE KENNEDY LAW FIRM, Edgewater, Maryland, for
    Appellee.
    
    
                                   OPINION
    
    DUNCAN, Circuit Judge:
    
       Santander Consumer USA ("Santander") appeals from the
    district court’s order denying its motion to compel arbitration
    and stay court proceedings of Antonia Rota-McLarty’s
    ("Rota-McLarty") claims against it.1 While finding that an
    enforceable arbitration agreement encompassing Rota-
    McLarty’s claims existed, the district court nevertheless con-
    cluded that Santander had waived its right to enforce arbitra-
    tion by its delay. After assuring ourselves of jurisdiction, we
    conclude the record does not support the district court’s find-
    ing of waiver. We therefore reverse and remand with direc-
    tions to refer the claims to arbitration.
    
                                         I.
    
      The relevant facts are few and undisputed. On July 5, 2007,
    Rota-McLarty, a Maryland resident, purchased a used car
        1
       Rota-McLarty originally brought her claims against Drive Financial
    Services ("Drive"), a Texas corporation which no longer exists. Santander,
    an Illinois corporation with its principal place of business in Texas, is the
    successor by mergers to Drive, and has taken its place in the litigation. For
    simplicity, we refer to the lender solely as Santander.
             ROTA-MCLARTY v. SANTANDER CONSUMER USA              3
    from Easterns Automotive Group ("Easterns") in Rockville,
    Maryland. In completing that transaction, Rota-McLarty exe-
    cuted two contracts with Easterns. The first was a Buyer’s
    Order, which provides the terms of the sale and contains an
    agreement to arbitrate disputes.
    
       The second was a Retail Installment Sale Contract
    ("RISC"), which does not contain an arbitration provision.
    The RISC provides the financing terms for Rota-McLarty’s
    loan and information about repossession rights and proce-
    dures. Additionally, the RISC contains an integration clause,
    which states: "This contract contains the entire agreement
    between you and us relating to this contract. Any change to
    this contract must be in writing and we must sign it. No oral
    changes are binding." J.A. 19. Santander pre-approved the
    financing terms, and Easterns assigned the RISC to Santander
    immediately after the sale.
    
       Rota-McLarty returned the car, which she claimed was
    defective, to Easterns’s lot in Maryland, having never made
    a payment on her loan. Santander sought collection of the out-
    standing debt after repossessing and selling the car at a loss.
    
                                  II.
    
       Rota-McLarty filed a putative class action in state court
    against Santander on March 9, 2010, alleging violations of
    various Maryland consumer protection laws for undisclosed
    finance charges and other unfair business practices. On April
    13, 2010, Santander removed the complaint to federal court
    on the basis of diversity. Santander filed an answer the next
    day, and within a month the parties had agreed on a bifurcated
    discovery schedule, whereby the first stage would focus on
    the issue of hidden finance charges, with class and other dis-
    covery to follow. During the brief discovery period that
    ensued, Santander took Rota-McLarty’s deposition on both
    stage one and stage two issues, and Rota-McLarty took East-
    erns’s deposition and sought production of various docu-
    4          ROTA-MCLARTY v. SANTANDER CONSUMER USA
    ments. One such document was a letter Easterns had received
    from Santander in 2007, detailing the terms of the RISC
    assignment, which Rota-McLarty asserts supports her hidden
    finance charge allegations.2
    
       On September 30, 2010, Santander moved to compel non-
    class arbitration of Rota-McLarty’s claims and to stay the pro-
    ceedings in federal court. Santander claimed the delay in
    seeking arbitration was caused by uncertainty in the law
    regarding whether it would be forced into class arbitration,
    which was clarified by the Supreme Court’s decision in Stolt-
    Nielsen S.A. v. AnimalFeeds Int’l Corp., 
    559 U.S.
    ___, 
    130 S. Ct. 1758
    , 1775 (2010) ("[A] party may not be compelled
    under the FAA to submit to class arbitration unless there is a
    contractual basis for concluding that the party agreed to do
    so."). Santander waited longer, until a district court had
    applied Stolt-Nielsen in the consumer context, to file its motion.3
    
       In denying Santander’s motion, the district court deemed
    the underlying transaction purely intrastate in nature, and
    applied the Maryland Uniform Arbitration Act (the
    "MUAA"), Md. Code Ann., Cts. & Jud. Proc. §§ 3-201 et
    seq., rather than the Federal Arbitration Act (the "FAA"), 9
    U.S.C. §§ 1-14. Concluding that the Buyer’s Order and RISC
    must be read together despite an integration provision in the
    latter, the court found there was an enforceable arbitration
    agreement between Rota-McLarty and Santander, which
    encompassed her claims. Nonetheless, the court denied San-
        2
         In the letter, Santander states it is sending a check to Easterns for Rota-
    McLarty’s RISC for $15,143.07, even though the total "amount pur-
    chased" was $19,261.00. J.A. 109. Rota-McLarty argues this amount
    reveals a hidden finance charge, but Santander disagrees, asserting that the
    disparity represents an "acquisition fee" that need not be disclosed under
    Maryland law and, further, had already been produced by Santander in
    discovery.
       3
         Specifically, Santander relied on Jock v. Sterling Jewelers, Inc., 725 F.
    Supp. 2d 444, 450 (S.D.N.Y. 2010), which was later reversed, 
    646 F.3d 113
     (2d Cir. 2011).
                ROTA-MCLARTY v. SANTANDER CONSUMER USA                             5
    tander’s motion on grounds that Santander had waived its
    right to compel arbitration through unjustified delay and by
    having participated significantly in discovery. Santander now
    appeals.
    
                                          III.
    
      Santander argues that the district court erred in failing to
    apply the FAA and in finding waiver. Rota-McLarty dis-
    agrees, and also contests the district court’s conclusion that a
    binding arbitration agreement existed between the parties.
    Before turning to the merits, however, we must first assure
    ourselves of our jurisdiction over this appeal.
    
                                          A.
    
       Courts of appeal ordinarily may review only final decisions
    of district courts. Wheeling Hosp., Inc. v. Health Plan of the
    Upper Ohio Valley, Inc., 
    683 F.3d 577
    , 584 (4th Cir. 2012);
    Arthur Andersen LLP v. Carlisle, 
    556 U.S. 624
    , 627 (2009);
    see also 28 U.S.C. § 1291. Although the district court’s order
    denying Santander’s motion to compel arbitration and stay
    proceedings is not a final decision, we may nevertheless exer-
    cise appellate jurisdiction if the order falls within an excep-
    tion to the final judgment rule established by the FAA.
    
       The FAA provides for appeals from, inter alia, orders "re-
    fusing a stay of any action under section 3 of this title,"4 or
    "denying a petition under section 4 of this title5 to order arbi-
    tration to proceed." 9 U.S.C. § 16(a)(1)(A)-(B). Congress’s
    purpose in creating appellate jurisdiction for these orders was
    to effectuate a "strong policy favoring arbitration" through
      4
         Section 3 of the FAA allows the district court to stay proceedings
    pending arbitration, upon application of one of the parties. See 9 U.S.C.
    § 3.
       5
         Section 4 allows a party to petition the district court for an order direct-
    ing arbitration to proceed pursuant to an agreement. See 9 U.S.C. § 4.
    6          ROTA-MCLARTY v. SANTANDER CONSUMER USA
    appeal rules, whereby "an order that favors litigation over
    arbitration . . . is immediately appealable, even if interlocu-
    tory in nature." Stedor Enters., Ltd. v. Armtex, Inc., 
    947 F.2d 727
    , 730 (4th Cir. 1991).
    
       Here, our determination of whether the district court’s
    order falls within an exception comprises two steps. We must
    first decide whether the transaction is one that involves inter-
    state commerce to which the FAA applies.6 If so, we then
    examine whether Santander’s motion did, in fact, adequately
    invoke §§ 3 or 4, thus giving us appellate jurisdiction under
    § 16 of the FAA.
    
                                         1.
    
       Turning first to the question of whether the parties’ agree-
    ment falls within the scope of the FAA, we note that the reach
    of the statute is broad. It operates to enforce an arbitration
    provision included in "a contract evidencing a transaction
    involving commerce." 9 U.S.C. § 2; see also 13D Wright,
    Miller, & Cooper, Federal Practice and Procedure § 3569
    (2008), where "commerce" means "commerce among the sev-
    eral States," 9 U.S.C. § 2. The Supreme Court has interpreted
    this provision as exercising the full scope of Congress’s
    commerce-clause power. Allied-Bruce Terminix Cos. v. Dob-
    son, 
    513 U.S. 265
    , 273-77 (1995). Moreover, the term "evi-
    dencing a transaction" requires only that the transaction in
    fact involved interstate commerce, not that the parties con-
    templated it as such at the time of the agreement. Id. at 281.
        6
        Application of the FAA requires demonstration of four elements: "(1)
    the existence of a dispute between the parties, (2) a written agreement that
    includes an arbitration provision which purports to cover the dispute, (3)
    the relationship of the transaction, which is evidenced by the agreement,
    to interstate or foreign commerce, and (4) the failure, neglect or refusal of
    the defendant to arbitrate the dispute." Whiteside v. Teltech Corp., 
    940 F.2d 99
    , 102 (4th Cir. 1991); see also Adkins v. Labor Ready, Inc., 
    303 F.3d 496
    , 500-01 (4th Cir. 2002). Because only the third element is in dis-
    pute here, we omit discussion of the others.
             ROTA-MCLARTY v. SANTANDER CONSUMER USA               7
       The district court’s analysis of whether the underlying
    transaction is solely intrastate in nature consists of one sen-
    tence: "There is no indication that Rota-McLarty’s transaction
    involved interstate commerce, and the parties agree that
    Maryland law governs their relationship." J.A. 129. We are
    constrained to disagree.
    
       The underlying transaction here is simply a consumer credit
    arrangement between a citizen of one state and a financing
    company in another. Although diversity of citizenship—or
    lack thereof—is not by itself enough to determine the nature
    of a transaction, see Maxum Founds., Inc. v. Salus Corp., 
    779 F.2d 974
    , 978 n.4 (4th Cir. 1985) ("[T]he mere circumstance
    of diversity of citizenship between [the parties] is not suffi-
    cient to command the application of the [FAA]."), we need
    not rely solely on it here. The financing, which originated
    from a foreign state, was integral to Rota-McLarty’s purchase
    of the used car from Easterns. We agree with sister circuits,
    which have concluded that reliance upon funds from a foreign
    source in a transaction is sufficient to implicate the FAA. See,
    e.g., Jenkins v. First Am. Cash Advance of Georgia, 
    400 F.3d 868
    , 874-75 (11th Cir. 2005) ("payday loan" completed by a
    Georgia consumer in the Georgia office of loan company
    involved interstate commerce where the funds were approved
    and disbursed by a national bank based in South Dakota).
    Therefore, the FAA applies.
    
       Our conclusion is bolstered by two additional factors. First,
    we have held that the FAA does not impose a burden upon the
    party invoking the FAA to put forth specific evidence proving
    the interstate nature of the transaction. Maxum, 779 F.2d at
    978 n.4 ("Where . . . the party seeking arbitration alleges that
    the transaction is within the scope of the [FAA], and the party
    opposing application of the [FAA] does not come forward
    with evidence to rebut jurisdiction under the federal statute,
    we do not read into the [FAA] a requirement of further proof
    by the party invoking the federal law."). Santander has made
    the requisite initial showing, which Rota-McLarty has failed
    8          ROTA-MCLARTY v. SANTANDER CONSUMER USA
    to rebut. Indeed, she admits "the interstate nature of the trans-
    action embodied in the RISC . . . should be hardly controver-
    sial," Appellee’s Br. at 9, and we agree.7
    
       Second, in deciding to apply the FAA, we need not identify
    any specific effect upon interstate commerce, so long as "in
    the aggregate the economic activity in question would repre-
    sent ‘a general practice . . . subject to federal control.’" Citi-
    zens Bank v. Alafabco, Inc., 
    539 U.S. 52
    , 56-57 (2003)
    (citation omitted). We agree with Santander that "the broad
    impact of consumer automobile lending on the national econ-
    omy" is evident. Appellant’s Br. at 28; cf. Citizen’s Bank, 539
    U.S. at 58 ("[W]ere there any residual doubt about the magni-
    tude of the impact on interstate commerce caused by the par-
    ticular economic transactions in which the parties were
    engaged, that doubt would dissipate upon consideration of the
    ‘general practice’ those transactions represent. No elaborate
    explanation is needed to make evident the broad impact of
    commercial lending on the national economy or Congress’s
    power to regulate that activity pursuant to the Commerce
    Clause." (internal citation omitted)).
        7
        Rota-McLarty contends that because the Buyer’s Order contains a
    Maryland choice-of-law provision, Maryland law must govern the arbitra-
    tion provision as well. See J.A. 17 ("This Agreement shall be governed
    and controlled in accordance with the laws of the State of Maryland.")
    Rota-McLarty’s argument misunderstands several points of law. Unques-
    tionably, a contract’s general choice-of-law provision does not displace
    federal arbitration law if the contract involves interstate commerce. See
    Porter v. Hayden Co. v. Century Indem. Co., 
    136 F.3d 380
    , 382 (4th Cir.
    1998) ("The Supreme Court has . . . squarely rejected the argument that
    a federal court should read a contract’s general choice-of-law provision as
    invoking state law of arbitrability and displacing federal arbitration law.");
    Maxum, 779 F.2d at 978. Thus, while the general choice-of-law provision
    invokes Maryland substantive law for issues of contract interpreta-
    tion—including the validity, enforceability, or revocability of the arbitra-
    tion agreement—and for Rota-McLarty’s consumer protection claims, it is
    irrelevant to the decision whether the FAA applies.
               ROTA-MCLARTY v. SANTANDER CONSUMER USA                9
       For these reasons, we find that the underlying transaction
    relates to interstate commerce, and that the district court erred
    in declining to apply the FAA. We are thus assured that fed-
    eral law supplies not only our procedural framework, but also
    the substantive law regarding arbitration. Preston v. Ferrer,
    
    552 U.S. 346
    , 349 (2008).
    
                                     2.
    
       We next address the narrower issue of whether Santander’s
    motion adequately invoked §§ 3 or 4 of the FAA so as to
    create appellate jurisdiction under the statute’s exception to
    the final judgment rule. Guided by our precedent in Wheeling,
    we find that it did.
    
       Consonant with the approach taken by our sister circuits,
    Wheeling held that the proper inquiry focuses on substance
    rather than nomenclature. 683 F.3d at 586. In other words, we
    look to whether a motion evidences a clear intention to seek
    enforcement of an arbitration clause rather than on whether it
    adhered to a specific form or explicitly referenced §§ 3 or 4.
    Id. Of course, "[t]he first, simplest, and surest way to guaran-
    tee appellate jurisdiction under § 16(a) is to caption the
    motion in the district court as one brought under FAA §§ 3 or
    4." Id. (quoting Conrad v. Phone Directories Co., 
    585 F.3d 1376
    , 1385 (10th Cir. 2009)). But requiring such a caption
    "would violate the spirit of notice pleading embodied in our
    Federal Rules of Civil Procedure." Conrad, 585 F.3d at 1385.
    Instead, we
    
          look beyond the caption to the essential attributes of
          the motion itself. The goal of this inquiry is to deter-
          mine whether it is plainly apparent 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.
    
    Id.
    10       ROTA-MCLARTY v. SANTANDER CONSUMER USA
       Specifically, in examining the four corners of the motion,
    our focus is on the relief requested. If the essence of the
    requested relief "‘is that the issues presented be decided
    exclusively by an arbitrator and not by any court,’" the denial
    of that motion is appealable under § 16. Wheeling, 683 F.3d
    at 585 (citation omitted). If, however, the requested relief
    would be "‘a judicial remedy that is inconsistent with the
    position that the issues involved may be decided only by the
    arbitrator,’" then the motion should no longer be viewed as
    "proceeding exclusively under the FAA," and interlocutory
    review under § 16 is not proper. Id. (citation omitted).
    
        Guided by Wheeling, we conclude the denial of Santander’s
    motion is immediately appealable. Although the cap-
    tion—"motion to compel arbitration and stay proceed-
    ings"—does not specifically reference §§ 3 or 4, it clearly
    invokes the relief provided in those sections. Further, Santan-
    der’s memorandum in support of that motion asks the court to
    "grant Santander’s motion, compel non-class arbitration of
    Rota-McLarty’s claims, and stay all other aspects of this
    action pending further order of the Court." J.A. 95. It does
    not, by contrast, request any "‘judicial remedy that is incon-
    sistent with the position that the issues involved may be
    decided only by the arbitrator.’" Wheeling, 683 F.3d at 586
    (citation omitted). Rota-McLarty has not pointed to any
    authority other than the FAA upon which Santander could
    have intended to rely in seeking to compel arbitration and stay
    litigation, much less shown how the relief Santander sought
    is inconsistent with the position that Rota-McLarty’s claims
    must be decided by an arbitrator.
    
      For these reasons, we find that the four corners of Santan-
    der’s motion make it abundantly clear Santander sought
    enforcement of the arbitration agreement. Denial of that
    motion is therefore immediately appealable.
    
                                  B.
    
       Turning now to the substantive issues on appeal, we exam-
    ine whether a valid arbitration agreement exists between the
               ROTA-MCLARTY v. SANTANDER CONSUMER USA                        11
    parties, and, if so, whether Santander was in default of its
    right to enforce that agreement.
    
                                        1.
    
      The question of whether an enforceable arbitration agree-
    ment exists between Rota-McLarty and Santander is a matter
    of contract interpretation governed by state law, which we
    review de novo. FindWhere Holdings, Inc. v. Sys. Env’t
    Optimization, LLC, 
    626 F.3d 752
    , 755 (4th Cir. 2010).
    
       We must first determine whether Santander, as an assignee
    only to the RISC, which contains an integration clause provid-
    ing that it is the complete agreement between the parties, and
    not the Buyer’s Order, which includes the arbitration lan-
    guage, could invoke arbitration. Relying on Maryland cases
    instructing courts to look to the intent of the parties to deter-
    mine the preclusive effect of an integration clause, the district
    court found that the circumstances surrounding the transaction
    here indicated that the parties did not intend the RISC to be
    a final and complete integration of their agreement. Rather,
    they intended that the two agreements should be interpreted
    together. Further, the court concluded that Rota-McLarty’s
    claims fell within the scope of the arbitration provision. Rota-
    McLarty challenges both conclusions. We consider each in
    turn.
    
                                        a.
    
       With respect to the integration clause, Rota-McLarty essen-
    tially repeats her arguments before the district court.8 She
      8
        Rota-McLarty does advance a novel theory in support of integration on
    appeal, premised on Md. Code Regs. § 11.12.01.15, which provides that
    "every vehicle sales contract or agreement shall be evidenced by an instru-
    ment in writing containing all of the agreements of the parties." See
    Appellee’s Br. at 19. She seems to argue that the regulation requires one
    document by itself to constitute the parties’ agreement, and thus we must
    read the Buyer’s Order alone. Even if this argument is not waived, Rota-
    McLarty fails to provide any authority for her interpretation of the cited
    regulation, nor for the proposition that this regulation supplants an entire
    established body of Maryland law governing contract interpretation.
    12         ROTA-MCLARTY v. SANTANDER CONSUMER USA
    relies heavily on Hartford Accident & Indem. Co. v. Scarlett
    Harbor Assocs., Ltd., 
    695 A.2d 153
     (Md. 1997), which she
    asserts "cannot be distinguished on any principled basis" from
    the instant matter. Appellee’s Br. at 17. In that case, the court
    examined two contracts. The first, between a condominium
    developer and a construction contractor, contained an arbitra-
    tion provision, while the second, the contractor’s performance
    bond with a bonding company, did not. The court declined to
    allow the bonding company to enforce the arbitration provi-
    sion contained in the construction contract, even though the
    bond incorporated that contract by reference. Hartford, 695
    A.2d at 155.
    
       We disagree with Rota-McLarty that the circumstances in
    that case mirror those in the case at hand. Far from indistin-
    guishable, Hartford is inapposite because Santander does not
    rely on language in the RISC, but instead points to language
    in the Buyer’s Order itself, which states that it applies to the
    assignee of the RISC, including several times in the arbitra-
    tion provision.9 Thus, we do not have the same concerns as
    the court in Hartford that the parties did not intend the arbitra-
    tion provision, specifically, to govern their agreement.
    
       The facts in this case support the district court’s finding
    that the Buyer’s Order and RISC were made as part of a sin-
    gle transaction, and should be interpreted together under
    Maryland law. See Shoreham Developers, Inc. v. Randolph
    Hills, Inc., 
    235 A.2d 735
    , 739 (Md. 1967) (explaining that the
    coverage of an integration clause is a matter of interpretation,
    and does not "exclude reading the instruments together
    [where] the parties did not intend the sales contract standing
      9
       For example, the arbitration provision states: "The parties understand
    that they have a right or opportunity to litigate disputes through a Court,
    but that they prefer to resolve their disputes through arbitration, except
    that the Dealer (or the Assignee of any Retail Installment Sales Contract)
    may proceed with Court action in the event the Purchaser fails to pay any
    sums due under the Agreement." J.A. 18.
               ROTA-MCLARTY v. SANTANDER CONSUMER USA                      13
    by itself to be a final and complete integration of the agreed
    upon terms"); Jaguar Land Rover North America, LLC v.
    Manhattan Imported Cars, Inc., 
    738 F. Supp. 2d 640
    , 648 (D.
    Md. 2010) ("Whether an agreement is integrated and the
    effect of an integration clause are preliminary questions of
    interpretation determined by the court." (citing Shoreham)),
    aff’d, 477 Fed. App’x 84 (4th Cir. 2012). The Buyer’s Order,
    which is expressly "conditioned upon approval of [the] retail
    installment sale contract," J.A. 132, and defines the "Agree-
    ment" collectively with other documents made in connection
    with the Buyer’s Order, is insufficient on its own to "explain
    the full extent of the parties’ obligations," Jaguar Land Rover,
    738 F. Supp. 2d at 649. For these reasons, we find Rota-
    McLarty has failed to establish that the RISC’s integration
    clause prevents reading both contracts together as a single
    agreement.
    
                                       b.
    
       Rota-McLarty’s second argument, that Santander should
    not be able to enforce the arbitration agreement because it
    contains a carve-out for assignees of the RISC, is similarly
    unconvincing.10 The flaw in her interpretation of the arbitra-
    tion clause becomes evident when the carve-out is viewed in
    the context of the arbitration clause:
    
           A Dispute is any question as to whether something
           must be arbitrated, as well as . . . any purely mone-
           tary claim greater than $1,000 in the aggregate,
           whether contract, tort, or other, arising from (1) the
           negotiation of and terms of the Buyer’s Order, (2)
           any service contract or Insurance product, or (3) any
      10
        Rota-McLarty also argues that the carve-out renders the promise illu-
    sory and thus that the agreement is unenforceable for lack of mutuality.
    However, because we ultimately reject her interpretation of the carve-out,
    we need not address her mutuality argument, which depends upon reading
    the clause to exempt Santander from arbitration.
    14        ROTA-MCLARTY v. SANTANDER CONSUMER USA
         retail installment sale contract or lease (but this arbi-
         tration provision does not apply to and shall not be
         binding on any assignee thereof).
    
    J.A. 18 (enumeration added). Basic principles of contract
    interpretation instruct us to look first to the plain meaning of
    the contract’s terms, and also to give meaning to each word
    used and avoid constructions that render language meaning-
    less, superfluous, or contradictory. See DIRECTV, Inc. v. Mat-
    tingly, 
    829 A.2d 626
    , 637 (Md. 2003).
    
       Here, the parenthetical phrase that constitutes the carve-out
    follows, and modifies, a list of three types of monetary claims
    that are subject to arbitration. The parenthetical exempts the
    forced arbitration of any "purely monetary claim greater than
    $1,000" by an assignee of that claim. It does not pertain to
    assignees of the RISC in particular; rather, it indicates that a
    person to whom an otherwise-qualifying monetary claim has
    been assigned cannot enforce arbitration. Santander is not the
    assignee of any monetary claim, but instead is the assignee of
    the entire agreement embodied in the RISC. The interpreta-
    tion advanced by Rota-McLarty not only ignores the structure
    of the sentence containing the carve-out, but it also operates
    at odds with the remainder of the arbitration provision, which
    contemplates the binding nature of the agreement on Santan-
    der by equating the "Dealer" and the "assignee of any [RISC]"
    in several places. See, e.g., J.A. 18 ("[A]ll disputes . . . shall
    be resolved by binding arbitration by one arbitrator located in
    the Dealer’s area in the state of Maryland selected by the
    Dealer (or the assignee of any [RISC]) with the consent of the
    Purchaser."). We thus find nothing in the language of the arbi-
    tration provision to indicate it was not intended to be enforce-
    able by Santander as assignee of the RISC.
    
                                    2.
    
      Finally, we examine the district court’s finding that Santan-
    der waived its right to enforce the arbitration agreement. We
             ROTA-MCLARTY v. SANTANDER CONSUMER USA                15
    review the district court’s decision to deny Santander’s arbi-
    tration request de novo, with deference to its underlying fac-
    tual findings, Forrester v. Penn Lyon Homes, Inc., 
    553 F.3d 340
    , 342 (4th Cir. 2009), and conclude that the court made
    several errors.
    
       Applying Maryland arbitration law, the district court found
    that whether a party has waived its right to arbitrate depends
    on "the extent of its participation in judicial proceedings,
    including whether an answer has been filed; whether there
    was a legitimate reason for the participation; and whether the
    delay in seeking arbitration prejudiced the other party." J.A.
    137. Additionally, the court proclaimed that the "‘belated
    insistence on arbitration [that] has all the markings of a simple
    strategic decision’ is improper." Id. (quoting Abramson v.
    Wildman, 
    964 A.2d 703
    , 710 (Md. Ct. Spec. App. 2009)). The
    district court then concluded that Santander had waived its
    right to arbitrate for four reasons: (1) Santander’s delay in
    moving to compel arbitration; (2) Santander’s participation in
    "discovery about Rota-McLarty’s allegations of hidden
    finance charges, which included exchanging hundreds of
    pages of documents, serving and responding to interrogato-
    ries, and taking Rota-McLarty’s deposition on all allega-
    tions," J.A. 138; (3) Santander’s strategic decision based on
    its fear that class discovery would have been compelled prior
    to Stolt-Nielsen "is not a legitimate reason for engaging in liti-
    gation rather than immediately seeking arbitration," id.; and
    (4) Santander’s failure to rebut Rota-McLarty’s contention
    that Santander had delayed in order to use litigation to "fully
    evaluate [Rota-McLarty’s] case," id. We must reject the dis-
    trict court’s reliance on each of these findings, for the reasons
    that follow.
    
       As a threshold matter, we note the district court erred by
    applying the wrong law. Under the FAA, a party may lose its
    right to compel arbitration if it "is in default in proceeding
    with such arbitration." 9 U.S.C. § 3. This principle of "de-
    fault" is akin to waiver, but not identical. Unlike some waiver
    16         ROTA-MCLARTY v. SANTANDER CONSUMER USA
    doctrines, "the circumstances giving rise to a statutory default
    are limited and, in light of the federal policy favoring arbitra-
    tion, are not to be lightly inferred," Maxum, 779 F.2d at 981,
    and the party opposing arbitration bears a heavy burden to
    prove default, Am. Recovery Corp. v. Computerized Thermal
    Imaging, Inc., 
    96 F.3d 88
    , 95 (4th Cir. 1996).11
    
       Generally, a litigant defaults on its right to invoke the FAA
    where it "‘so substantially utiliz[es] the litigation machinery
    that to subsequently permit arbitration would prejudice the
    party opposing the stay.’" Forrester, 553 F.3d at 343 (citation
    omitted). "Where a party fails to demand arbitration during
    pretrial proceedings, and, in the meantime, engages in pretrial
    activity inconsistent with an intent to arbitrate, the party later
    opposing a motion to compel arbitration may more easily
    show that its position has been compromised, i.e., preju-
    diced." Fraser v. Merrill Lynch Pierce, Fenner & Smith, Inc.,
    
    817 F.2d 250
    , 252 (4th Cir. 1987) (internal quotation marks
    omitted). The dispositive determination is whether the oppos-
    ing party has suffered actual prejudice. Microstrategy, Inc. v.
    Lauricia, 268 F.3d at 249 (citing Fraser, 817 F.2d at 252); see
    also Patten Grading & Paving, Inc. v. Skanska USA Bldg.,
    Inc., 
    380 F.3d 200
    , 205 (4th Cir. 2004). Two factors specifi-
    cally inform our inquiry into actual prejudice: (1) the amount
    of the delay; and (2) the extent of the moving party’s trial-
    oriented activity. Microstrategy, 268 F.3d at 249. Notably, the
    moving party’s reason for delay is not relevant to the default
    inquiry under our precedent.12 We consider each of the two
    factors in turn.
      11
          Accordingly, we employ our recent approach of substituting the term
    "default" for the term "waiver" in the FAA context, in order "to achieve
    uniformity and prevent confusion." Wheeling, 683 F.3d at 586 n.3.
       12
          We are not unsympathetic to Rota-McLarty’s position that parties
    should not be allowed to game the system and delay seeking arbitration
    to see how things go in federal court and thereby get "a second bite at the
    apple." In re Mirant Corp., 
    613 F.3d 584
    , 590 (5th Cir. 2010). As some
    of our sister circuits have pointed out in cases cited by Rota-McLarty,
               ROTA-MCLARTY v. SANTANDER CONSUMER USA                           17
                                          a.
    
       First, in comparison to our decisions considering the issue,
    the length of delay in this case was relatively short. At most,
    Santander waited six and a half months—from the date Rota-
    McLarty filed her complaint in state court—to file its motion
    to compel arbitration and stay proceedings in federal court.13
    We have previously held that a delay of several months, with-
    out more, is insufficient to demonstrate the opposing party
    
    there are many reasons to favor the earliest possible selection of forum,
    including efficiency, preservation of judicial resources, and fairness. See,
    e.g., Cabinetree of Wisconsin v. Kraftmaid Cabinetry, Inc., 
    50 F.3d 388
    ,
    391 (8th Cir. 1995) (noting that a party’s desire to "weigh its options" in
    deciding whether to seek to compel arbitration while the litigation goes on
    is "the worst possible reason for delay" and amounts to "want[ing] to play
    heads I win, tails you lose"); Fisher v. A.G. Becker Paribas, Inc., 
    791 F.2d 691
    , 694 (9th Cir. 1986) (default may be established if the opposing party
    can show: "(1) knowledge of an existing right to compel arbitration; (2)
    acts inconsistent with that existing right; and (3) prejudice to the party
    opposing arbitration resulting from such inconsistent acts"). However, in
    keeping with the strong policy in favor of arbitration established by the
    FAA, the Fourth Circuit has not expanded the default analysis to include
    consideration of a party’s knowledge or motive. And, even under such a
    test, Rota-McLarty has failed to establish Santander was attempting to
    game the system, such as by seeking arbitration after the district court’s
    unfavorable disposition of a motion or discovery dispute.
       13
          In its reply brief, Santander calculated its delay in seeking arbitration
    as "approximately six month[s]," Reply Br. at 20, but at oral argument
    urged us not to "start the clock" until the date it received the district
    court’s decision applying Stolt-Nielsen to consumer transactions. We
    reject that late-asserted proposition as unsupported by Fourth Circuit pre-
    cedent. See Forrester, 553 F.3d at 343 (delay in seeking arbitration began
    when the moving party was on notice of facts that should have made it
    aware the opposing party intended to rely on a theory placing its claim
    within the scope of the arbitration agreement); Patten, 380 F.3d at 205
    (using date moving party became aware of arbitration clause as starting
    point); Fraser, 817 F.2d at 252 (declining to excuse part of delay based
    on moving party’s argument that "a motion to compel would have been
    futile" prior to a change in the law); Maxum, 779 F.2d at 982 (calculating
    delay starting from the filing of the operative second amended complaint).
    18         ROTA-MCLARTY v. SANTANDER CONSUMER USA
    suffered actual prejudice. See, e.g., Patten, 380 F.3d at 205
    (no prejudice inherent in four-month delay); Maxum, 779 F.2d
    at 982 (same, with three-month delay); cf. Forrester, 553 F.3d
    at 343-44 (default proper where litigation had proceeded for
    over two years before the moving party sought arbitration);
    Fraser, 817 F.2d at 252-53 (same, with four-year delay).
    
       Here, nothing in the record supports a finding that Rota-
    McLarty was prejudiced by the length of the delay itself. Her
    general assertion that she "committed substantial resources to
    the case on the premise that the Court would have an opportu-
    nity to rule on a motion for class certification," Appellee’s Br.
    at 29, is both unsubstantiated and unconvincing. Although
    incurring significant expense as a result of extended litigation
    can be part of actual prejudice, such cases usually involve
    resources expended specifically in response to motions filed
    by the party who later seeks arbitration. See, e.g., Fraser, 817
    F.2d at 252 (prejudice found in part because opposing party
    "had to respond to a number of potentially damaging motions,
    including a motion for partial summary judgment and three
    motions to dismiss.") And where, as here, Rota-McLarty has
    provided no evidentiary support for her claimed "significant
    expense," this argument fails entirely. Patten, 380 F.3d at 208
    (declining to base prejudice on costs incurred where the
    opposing party failed to adequately prove the expense). Con-
    sequently, we conclude the district court erred to the extent it
    based its determination of default on the length of delay.14
    
                                         b.
    
      The second factor in our prejudice inquiry looks to the
    nature and extent of Santander’s litigation activities. Here,
      14
        The district court described the length of Santander’s delay as "six
    months after Rota-McLarty sued, and five months after filing an answer."
    J.A. 137. Thus, it was not the district court’s factual finding that was erro-
    neous, but instead its legal conclusion that the length of delay weighed in
    favor of finding prejudice.
               ROTA-MCLARTY v. SANTANDER CONSUMER USA                         19
    Santander "utilized the litigation machinery" in a
    few—mostly minimal—ways: it removed the complaint to
    federal court, filed an answer, proposed a bifurcated discovery
    plan, took Rota-McLarty’s deposition on both phase one and
    phase two issues, and waited for clarity in the law in order to
    avoid class arbitration. No dispositive motions were filed.15
    For her part, Rota-McLarty engaged in some discovery as
    well, which resulted in Easterns’s production of a document
    that Rota-McLarty styles as a smoking gun proving her claim
    of an undisclosed finance charge. Rota-McLarty asserts these
    activities support a finding of prejudice because Santander
    proposed a two-phase plan that limited her discovery rights,
    while ignoring those limitations itself by taking her deposition
    on both phases, and exploiting pre-trial discovery not avail-
    able in arbitration.
    
       Like the district court, Rota-McLarty fails to tether her dis-
    cussion of Santander’s litigation activities to any actual preju-
    dice. She does not explain how either her deposition or the
    document produced by Easterns would be to Santander’s
    advantage, or unavailable, in arbitration. Neither the district
    court nor Rota-McLarty specified what aspect of Rota-
    McLarty’s litigation strategy was revealed,16 or what benefit
    Santander has gained through litigation at Rota-McLarty’s
    expense, thereby prejudicing her. The mere participation in
    discovery is not sufficient to indicate default. See Maxum, 779
    F.2d at 982 (finding opposing party was not prejudiced by
    moving party’s attendance at depositions, even though it may
    have benefited for purposes of later arbitration proceeding,
    and "declin[ing] to create a rule that would require a party
      15
          Whether a party was required to respond to dispositive motions may
    factor into our prejudice analysis, although we have "counsel[ed] against
    adopting a bright line rule that the mere filing of a dispositive motion on
    the merits is inherently prejudicial." Wheeling, 683 F.3d at 590.
       16
          The district court, still without explanation, went so far as to accept
    Rota-McLarty’s apparently uncontested assertion that Santander had been
    able "to fully evaluate her case." J.A. 138.
    20         ROTA-MCLARTY v. SANTANDER CONSUMER USA
    seeking arbitration to avoid a finding of default by ignoring
    court-ordered discovery deadlines"). Consequently, Rota-
    McLarty has failed to establish the prejudice necessary to jus-
    tify finding Santander defaulted on its right to enforce the
    arbitration agreement under the FAA. Rota-McLarty’s claims
    should be sent to arbitration pursuant to the parties’ agree-
    ment.
    
                                    IV.
    
         For the foregoing reasons, the order of the district court is
    
                                                        REVERSED.
    

Document Info

DocketNumber: 11-1597

Filed Date: 11/28/2012

Precedential Status: Precedential

Modified Date: 10/30/2014

Authorities (23)

Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp. , 559 U.S. 662 ( 2010 )

Allied-Bruce Terminix Cos. v. Dobson , 513 U.S. 265 ( 1995 )

Citizens Bank v. Alafabco, Inc. , 539 U.S. 52 ( 2003 )

Preston v. Ferrer , 552 U.S. 346 ( 2008 )

Arthur Andersen LLP v. Carlisle , 556 U.S. 624 ( 2009 )

In Re Mirant Corp. , 613 F.3d 584 ( 2010 )

Conrad v. Phone Directories Co., Inc. , 585 F.3d 1376 ( 2009 )

FindWhere Holdings, Inc. v. SYSTEMS ENVIRONMENT , 626 F.3d 752 ( 2010 )

Jock v. Sterling Jewelers Inc. , 646 F.3d 113 ( 2011 )

blue-sky-l-rep-p-72426-fed-sec-l-rep-p-92774-george-b-fisher-iv , 791 F.2d 691 ( 1986 )

Fed. Sec. L. Rep. P 93,231 William C. Fraser v. Merrill ... , 817 F.2d 250 ( 1987 )

john-m-whiteside-v-teltech-corporation-telic-corporation-national , 940 F.2d 99 ( 1991 )

Stedor Enterprises, Limited v. Armtex, Incorporated , 947 F.2d 727 ( 1991 )

american-recovery-corporation-v-computerized-thermal-imaging-incorporated , 96 F.3d 88 ( 1996 )

Porter Hayden Company v. Century Indemnity Company , 136 F.3d 380 ( 1998 )

curtis-m-adkins-and-lee-ayers-angelo-bailey-daniel-ballengee-bobby , 303 F.3d 496 ( 2002 )

patten-grading-paving-incorporated-v-skanska-usa-building , 380 F.3d 200 ( 2004 )

Forrester v. Penn Lyon Homes, Inc. , 553 F.3d 340 ( 2009 )

Abramson v. Wildman , 184 Md. App. 189 ( 2009 )

Shoreham Developers, Inc. v. Randolph Hills, Inc. , 248 Md. 267 ( 1967 )

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