Atlanta Rotomolding Inc. v. CI Rotomolding USA Inc.

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 19-12855
____________________
ATLANTA ROTOMOLDING INC.,
Plaintiff-Counter Defendant-Appellee,
versus
CI ROTOMOLDING USA INC.,
Defendant-Counter Claimant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:19-cv-00389-TWT
____________________
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2 Opinion of the Court 19-12855
Before WILSON, NEWSOM , and E D CARNES, Circuit Judges.
PER CURIAM:
This case involves a contract dispute between Atlanta Roto-
molding, Inc. (ARM) and CI Rotomolding USA, Inc. (CIR). ARM
sued CIR for payments that ARM claims were required under the
contract. CIR moved to dismiss the complaint under Federal Rule
of Civil Procedure 12(b)(6), asserting that ARM’s claims should be
dismissed with prejudice for failure to state a claim. The district
court denied the motion to dismiss. CIR appealed the order of de-
nial. The issue is whether we have appellate jurisdiction over the
district court’s order denying CIR’s motion to dismiss.
Ordinarily we do not have jurisdiction over orders denying
motions to dismiss.
See, e.g.,
Arthur Andersen LLP v. Carlisle, 556
U.S. 624, 627 (2009);
Mason v. Stallings, 82 F.3d 1007, 1009–10 (11th
Cir. 1996). But there are some exceptions to the general rule, and
CIR contends that one of them applies here. It points to the Federal
Arbitration Act and what we will call § 16 jurisdiction.
See 9 U.S.C.
§ 16. Section 16 gives us jurisdiction over certain district court or-
ders, including an order that denied a request under 9 U.S.C. § 3 to
stay litigation pending arbitration or denied a request under 9
U.S.C. § 4 to compel arbitration.
Id. § 16(a)(1)(A)–(B). Nothing in
§ 16 purports to give us jurisdiction over an order that denies a mo-
tion requesting a dismissal for failure to state a claim under Rule
12(b)(6).
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19-12855 Opinion of the Court 3
We do not have § 16 jurisdiction because the district court’s
order did not refuse a request under § 3 to stay litigation pending
arbitration, and it did not deny a request under § 4 to compel arbi-
tration. The court never stated that it was denying a stay or refus-
ing to compel arbitration. Courts usually do not deny that which
is not requested.
The court’s order denying CIR’s motion to dismiss under
Rule 12(b)(6) for failure to state a claim is dedicated entirely to just
that issue: whether ARM’s complaint failed to state a claim. The
order states that it is considering a motion to dismiss and sets out
the legal standard for Rule 12(b)(6), including the pleading require-
ments of
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and
Ashcroft v. Iqbal, 556 U.S. 662 (2009). The reason the order gives
for denying CIR’s motion to dismiss is that “there is a factual dis-
pute” about the meaning of a contract term. The order makes no
mention of a stay to permit arbitration or of compelling arbitration.
Nor does the order indicate that if CIR had filed a motion request-
ing relief under §§ 3 or 4 after the court denied the Rule 12(b)(6)
motion, the court would have refused to consider that request or
would have ruled that those arbitration-related issues had already
been resolved.
Even though the district court never even mentioned arbi-
tration, CIR insists that the court must have silently and implicitly
denied its request to compel arbitration. The glaring problem with
that argument is that CIR never made such a request. Neither
CIR’s motion to dismiss nor its memorandum in support of that
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4 Opinion of the Court 19-12855
motion can fairly be construed as requesting a stay of litigation
pending arbitration or requesting that the court compel arbitration.
CIR’s motion was captioned as only a motion to dismiss —
not as alternatively a motion for a stay, or to compel arbitration, or
even as a motion to dismiss so that arbitration can proceed. The
motion’s substance was presented as only a Rule 12(b)(6) motion
to dismiss; it cited only Rule 12(b)(6) and not § 3, or § 4, or any
other part of the FAA. The only basis put forward for dismissing
(with prejudice) ARM’s claims was “pursuant to Fed. R. Civ. P.
12(b)(6) because [ARM] fails to state a claim upon which relief can
be granted.” Instead of asking for the claims to be dismissed with-
out prejudice to permit them to be resolved on the merits in arbi-
tration, the motion asked that they be dismissed with prejudice on
the merits for failure to state a claim.
CIR’s memorandum did at least mention arbitration, but
not sufficiently. The memorandum argued primarily that the con-
tract provision containing the arbitration agreement was
not appli-
cable at all. In the alternative, it argued that if the court disagreed
and deemed the arbitration provision applicable, then that provi-
sion was enforceable. But even in that alternative argument, the
memorandum did not request the court stay the case to permit ar-
bitration or order the parties to arbitrate the dispute. Instead, it
stated that if the court disagreed with CIR and concluded that the
arbitration provision was enforceable, the court should “grant
CIR’s motion and dismiss the entire Complaint because the parties
agreed to arbitrate.”
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19-12855 Opinion of the Court 5
The memorandum did not cite §§ 3 or 4, did not mention or
request the court stay litigation or compel arbitration, and did not
suggest that CIR intended to enforce the arbitration agreement or
that it actually would do so after dismissal. The conclusion section
of the memorandum makes things plain, stating that the court
should grant the motion to dismiss because ARM’s complaint “fails
to state any claim against CIR upon which relief can be granted.”
That is not a request for a stay to permit arbitration or for the court
to compel arbitration.
That leaves us with this: An order that never mentions arbi-
tration denying a motion that never mentions arbitration and a
memorandum in support of that motion that mentions arbitration
as merely one of many reasons to dismiss (but not as a reason to
stay litigation or compel arbitration). Nothing suggests that the
court’s order denying CIR’s motion to dismiss was an order refus-
ing a stay requested under § 3 or an order refusing to compel arbi-
tration under § 4.
See 9 U.S.C. § 16. There was no such denial,
implied or otherwise, and there was no such request, implied or
otherwise. The district court’s order denied a motion to dismiss
and only a motion to dismiss. And Congress has not given us § 16
jurisdiction over orders denying a request only to dismiss the case.
For those reasons, we DISMISS the appeal for lack of juris-
diction.1
1 ARM has also moved for sanctions against CIR under Federal Rule
of Appellate Procedure 38. That motion is DENIED.
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