Mary Rodgers-Rouzier v. AMERICAN QUEEN STEAMBOAT OPERATING COMPANY , LLC and HMS GLOBAL MARITIME LLC

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 23-1812
M ARY R ODGERS-R OUZIER ,
Plaintiff-Appellant,
v.
A MERICAN Q UEEN STEAMBOAT O PERATING C OMPANY , LLC and
HMS GLOBAL M ARITIME LLC,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, New Albany Division.
No. 4:20-cv-00004 — Sarah Evans Barker, Judge.
____________________
A RGUED J ANUARY 23, 2024 — DECIDED J UNE 18, 2024
____________________
Before R OVNER , BRENNAN , and PRYOR , Circuit Judges.
R OVNER , Circuit Judge. Mary Rodgers-Rouzier alleges that
she and her coworkers who entertained guests on steamboat
cruises were denied overtime payment to which they were en-
titled under the Fair Labor Standards Act. Over one hundred
of her coworkers filed consent forms to join her proposed col-
lective action. Meanwhile, their employer, American Queen
Steamboat Operating Company, moved to dismiss the case

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2 No. 23-1812
for improper venue because Rodgers-Rouzier had agreed to
arbitration. The arbitration agreement and American Queen’s
motion invoked the Federal Arbitration Act (FAA) exclu-
sively, and the district court denied the motion on those
terms. American Queen then moved again to dismiss based
on the arbitration agreement, this time invoking Indiana state
law. The district court granted this motion, over Rodgers-
Rouzier’s objections that American Queen had waived its ar-
gument and the court lacked authority to apply Indiana law
in this context. The court further determined that all the work-
ers who had filed consent forms were not parties to the action.
We reverse. Although we conclude American Queen’s ar-
guments are not waived and the court had authority to en-
force the arbitration agreement under Indiana law just as an
Indiana court would, we believe that Indiana law would hold
American Queen to its bargain that its arbitration agreement
was governed by the FAA. Rodgers-Rouzier’s case may there-
fore continue in federal court. We do not decide now whether
it may do so as a collective action and leave that question for
further litigation.1
I.
Rodgers-Rouzier worked as a bartender on steamboats
operated by American Queen. She alleged that she and her
coworkers were wrongly denied overtime wages. While
1 On February 21, 2024, American Queen and its affiliates filed for
bankruptcy in the Southern District of Texas. The bankruptcy court lifted
the automatic stay for purposes of this appeal on April 15, 2024, but it di-
rected that if the case resulted in a favorable decision for Rodgers-Rouzier
and the other employees, then they could pursue their claims only in the
bankruptcy proceedings.

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No. 23-1812 3
working for American Queen, she signed an arbitration agree-
ment as a condition of her continued employment. The parties
represent that her coworkers entered similar, but not neces-
sarily identical, agreements at various times during their own
employment with American Queen.
The agreement is only three short pages, split into six sec-
tions, several of which are relevant to this appeal. Section one
contains the main agreement that the parties will settle all
claims arising out of Rodgers-Rouzier’s employment exclu-
sively by binding arbitration, except for certain claims related
to unemployment benefits, worker’s compensation, and labor
relations. The procedures for the arbitration are specified in
section two, which provides that the arbitration “shall be con-
ducted under the rules and procedures of the American Arbi-
tration Association, Judicial Arbitration and Mediation Ser-
vices or another arbitration service selected by the company.”
It also specifies that arbitration should generally be conducted
in the county where Rodgers-Rouzier was last employed. Sec-
tion four operates as a waiver of any statute of limitations, re-
quiring each party to commence a claim no more than six
months after it accrues.
Section six addresses the interpretation of the Agreement
and provides that “[t]his Agreement and the applicabil-
ity/construction of any arbitration decision shall be governed
by the Federal Arbitration Act.” The section also includes sev-
erability rules: “The provisions of this Agreement shall be
severable. If any portion of this Agreement is held to be inva-
lid or unenforceable, it shall not affect the remaining portions
of this Agreement. This Agreement may be modified by a
court or an arbitrator to render it enforceable.”

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4 No. 23-1812
After Rodgers-Rouzier filed this suit as a putative collec-
tive action, see 29 U.S.C. § 216(b), American Queen moved to
compel arbitration under the FAA. Specifically, it sought to
dismiss the complaint in its entirety for improper venue un-
der Rule 12(b)(3) of the Federal Rules of Civil Procedure. The
district court denied this motion because § 1 of the FAA pro-
vides that “nothing” in the Act “shall apply to contracts of
employment of seamen, railroad employees, or any other
class of workers engaged in foreign or interstate commerce,”
and it concluded that Rodgers-Rouzier was a “seaman”
within the meaning of the FAA.
After filing its answer, American Queen moved again to
either dismiss or stay the litigation based on the arbitration
agreement. Accepting that the FAA did not apply to Rodgers-
Rouzier, it instead invoked the Indiana Uniform Arbitration
Act (IUAA), I ND. C ODE §§ 34-57-2-1 to -22. Rodgers-Rouzier
objected that American Queen had already moved to dismiss
once under Rule 12(b)(3), and so was not permitted to do so
again. F ED. R. C IV. P. 12(g)(2), (h)(1). She also argued that the
court was not permitted to enforce the contract under Indiana
law, when the FAA did not apply and section six specified
that the agreement was governed by the FAA. Assuming the
court could enforce the agreement, though, she contended
that section two improperly gave American Queen unilateral
authority to “select” any potentially biased arbitration service
and section four’s waiver of the statute of limitations violated
the FLSA and rendered the whole agreement unconscionable.
The district court granted the motion and dismissed
Rodgers-Rouzier’s case. Although the court agreed that
American Queen had waived its opportunity to file another
motion under Rule 12(b)(3), the court concluded that

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No. 23-1812 5
American Queen had not waived its right to compel
arbitration as a substantive matter. The court further
determined that, in the absence of the FAA, some law had to
apply to the agreement, and so it applied Indiana law,
including the IUAA. It next concluded that neither section
two nor section four was unconscionable, because it
concluded the provision regarding selection of another
arbitrator in the former was not integral to the agreement and
the waiver of the statute of limitations in the latter was not
contrary to federal or state law. It therefore compelled
Rodgers-Rouzier to arbitrate by dismissing her suit.
Meanwhile, the parties had also been litigating whether
court-approved notice should be sent to other American
Queen workers so that they could opt into the case as a
collective action. See Hoffmann-La Roche Inc. v. Sperling, 493
U.S. 165, 171 (1989). The court concluded that any notice was
premature because it had not yet certified the case to proceed
as a collective action. Yet, even without notice from the court,
127 other American Queen employees filed consent forms to
opt into the action under 29 U.S.C. § 216(b). In light of its
dismissal of Rodgers-Rouzier’s case, the district court
concluded that these employees were not parties to the
litigation. Rodgers-Rouzier and the other 127 employees
appeal.
II.
On appeal, Rodgers-Rouzier renews her three arguments
against dismissal of her suit. First, she argues that Rule 12 of
the Federal Rules of Civil Procedure prohibited American
Queen from seeking enforcement of the arbitration agreement
on its state-law theory. Second, she maintains the district
court had no authority to apply Indiana law to compel

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6 No. 23-1812
arbitration. And third, she contends that she could not be
compelled to arbitrate as a matter of Indiana law. Reviewing
each of these questions of law de novo, see A.D. v. Credit One
Bank, N.A., 885 F.3d 1054, 1059 (7th Cir. 2018), we reject her
first two arguments and conclude that the district court had
the authority to consider American Queen’s motion and could
have potentially compelled arbitration under Indiana law.
But we agree with her that in this case Indiana law would not
compel her to arbitrate, for the simple reason that the agree-
ment expressly states that it is governed by the FAA.
A.
We start with waiver. Rodgers-Rouzier contends that the
only means of seeking dismissal based on an arbitration
clause is a motion to dismiss for improper venue under Rule
12(b)(3). Rule 12(g)(2) generally permits only a single motion
to dismiss, and Rule 12(h)(1) establishes that any defense
listed in 12(b)(2)–(5) is waived if it is omitted from that single
motion. See Ennenga v. Starns, 677 F.3d 766, 772–73 (7th Cir.
2012). So, Rodgers-Rouzier logically concludes, American
Queen waived its IUAA theory for dismissal by omitting it
from its initial motion to dismiss under Rule 12(b)(3). The dis-
trict court accepted that American Queen had waived its right
to move again under Rule 12(b)(3) but concluded that it had
not waived its right to compel arbitration generally.
We think the distinction drawn by the district court is
sound, but there is a more fundamental flaw with Rodgers-
Rouzier’s argument. Rule 12(h)(1) does not govern the ques-
tion of waiver because a motion to dismiss under Rule
12(b)(3) is not the proper means of enforcing an arbitration
agreement in the first place. We had concluded that it was in
Continental Casualty Co. v. American National Insurance Co., 417

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No. 23-1812 7
F.3d 727, 733 (7th Cir. 2005), by comparing an arbitration
agreement to a forum-selection clause. See also Faulkenberg v.
CB Tax Franchise Sys., LP, 637 F.3d 801, 807 (7th Cir. 2011);
Auto. Mechs. Loc. 701 Welfare & Pension Funds v. Vanguard Car
Rental USA, Inc., 502 F.3d 740, 746 (7th Cir. 2007). But that
analogy has since broken down. The Supreme Court has
squarely held that forum-selection clauses do not make venue
“improper” within the meaning of Rule 12(b)(3). Atl. Marine
Const. Co. v. U.S. Dist. Ct. for W. Dist. of Tex., 571 U.S. 49, 55
(2013). Venue is determined solely by reference to federal
law—generally 28 U.S.C. § 1391—not the parties’ contractual
agreements. Atlantic Marine, 571 U.S. at 55–56. Common-law
doctrines like forum non conveniens are the preferred mecha-
nism by which to dismiss a suit brought in the wrong forum,
if it cannot be transferred to the right one. Id. at 60.
Although we have, on occasion, repeated litigants’ under-
standing that a motion to enforce an arbitration agreement is
brought under Rule 12(b)(3), even after Atlantic Marine, we
have grown increasingly critical of that assumption. See Rock
Hemp Corp. v. Dunn, 51 F.4th 693, 701 (7th Cir. 2022); Dr. Robert
L. Meinders, D.C., Ltd. v. United Healthcare Servs., Inc., 7 F.4th
555, 560 (7th Cir. 2021). The Supreme Court has clarified that
Rule 12(b)(3) is limited to challenges to statutory venue, At-
lantic Marine, 571 U.S. at 55–56, so it follows that the Rule is
no longer a permissible means of enforcing arbitration agree-
ments.
This recognition changes little of substance. The concerns
that prompted us to rely on Rule 12(b)(3) related to the scope
of the record, the standard of review, and a judge’s power to
resolve evidentiary disputes. See Faulkenberg, 637 F.3d at 808–
10; Cont’l Cas., 417 F.3d at 733. Rodgers-Rouzier insists that

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8 No. 23-1812
our obeying Atlantic Marine will leave these questions in flux.
But as we explained in Pavey v. Conley, 544 F.3d 739, 741 (7th
Cir. 2008), the questions of who decides an issue and what ev-
idence they may use to do so are located nowhere in the text
of Rule 12, which “just permits certain defenses … to be pre-
sented by motion.” These questions are instead governed by
general common-law principles. Id. Those principles remain
the same, despite a change in nomenclature.
From our conclusion that Rule 12(b)(3) does not govern
American Queen’s motion it follows that Rule 12(h)(1) does
not control the question of waiver. Indeed, like the district
court did here, we have typically resolved whether a litigant
has waived the right to enforce arbitration clauses based not
on the Federal Rules, but on precisely those sorts of general
common-law principles we discussed in Pavey—both before
and after Atlantic Marine. See Brickstructures, Inc. v. Coaster Dy-
namix, Inc., 952 F.3d 887, 891–93 (7th Cir. 2020); Faulkenberg,
637 F.3d at 807–08; Halim v. Great Gatsby’s Auction Gallery, Inc.,
516 F.3d 557, 562 (7th Cir. 2008). Rodgers-Rouzier, however,
has explicitly declined to argue that American Queen waived
its argument in these terms. We think that is a prudent con-
cession and conclude that American Queen preserved its op-
portunity to seek to compel arbitration under the IUAA.
B.
Rodgers-Rouzier next argues that even if American Queen
preserved its argument, the district court lacked the authority
to dismiss the case as a matter of both state and federal law.
Regarding Indiana law, she maintains that the IUAA applies
on its own terms only to state courts. Her federal law theory
relies on what has been called the “equitable remedial rights
doctrine.” Unpacking her theories requires a bit of

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No. 23-1812 9
background on the interaction of state and federal law as well
as a good dose of history.
It is now understood that the FAA is a substantive federal
law that, through the Supremacy Clause, generally preempts
conflicting state law within its sphere. See Southland Corp. v.
Keating, 465 U.S. 1, 15–16 (1984). Typically, this preemption
invalidates state law that discriminates against arbitration
agreements relative to other contracts. E.g., Viking River
Cruises, Inc. v. Moriana, 596 U.S. 639, 650–51 (2022). Those state
laws conflict with § 2 of the FAA, which specifies that a “writ-
ten provision in any … contract evidencing a transaction in-
volving commerce to settle by arbitration a controversy there-
after arising out of such contract or transaction … shall be
valid, irrevocable, and enforceable.” 9 U.S.C. § 2. But it does
not follow that the FAA preempts state laws that favor arbitra-
tion in means different from the FAA or beyond the FAA’s
own scope—say, to oral contracts, a contract that does not in-
volve commerce, or (as relevant here) the types of contracts of
employment expressly excluded by § 1. To put the point in
doctrinal terms, the FAA does not occupy the field of arbitra-
tion. See Volt Info. Scis., Inc. v. Bd. of Trs. of Leland Stanford Jun-
ior Univ., 489 U.S. 468, 477 (1989); Sherwood v. Marquette
Transp. Co., 587 F.3d 841, 843 (7th Cir. 2009).
The district court concluded that Rodgers-Rouzier was a
seaman, so that means the FAA does not apply to her contract
of employment. 9 U.S.C. § 1. (American Queen does not dis-
pute these questions on appeal.) The IUAA, though, does not
have its own exemption for seamen. Its § 1 tracks § 2 of the
FAA, providing generally that “[a] written agreement to sub-
mit to arbitration ... an existing controversy or a controversy
thereafter arising is valid and enforceable” and further

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10 No. 23-1812
specifying that the IUAA “applies to arbitration agreement
between employers and employees” without additional qual-
ification about the types of employment. I ND. C ODE § 34-57-2-
1(a).2 For Supremacy Clause purposes there is no conflict be-
cause the FAA does not prohibit arbitration in a seaman’s con-
tract of employment, it says nothing whatsoever about that
question, leaving it for the states to resolve as they see fit. See
Sherwood, 587 F.3d at 843. So far, the parties agree: in principle,
state law can render an arbitration agreement in a seaman’s
contract of employment valid and enforceable, despite the
FAA exemption. Where they disagree is on what it means for
an agreement to be “valid” under state law and how a federal
court can “enforce” such an agreement. That dispute requires
a history lesson.
Congress passed the FAA in 1925 “in response to wide-
spread judicial hostility to arbitration agreements” that had
“manifested itself in ‘a great variety’ of ‘devices and formu-
las.’” AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339, 342
(2011). See generally Kulukundis Shipping Co., S/A, v. Amtorg
Trading Corp., 126 F.2d 978 (2d Cir. 1942) (tracing hostility
back to the 1600s in England); U.S. Asphalt Ref. Co. v. Trinidad
Lake Petroleum Co., 222 F. 1006 (S.D.N.Y. 1915) (collecting and
criticizing several doctrines disfavoring arbitration); Paul L.
Sayre, Development of Commercial Arbitration Law, 37 Y ALE L.J.
595 (1928) (expanding on U.S. Asphalt’s criticism). Often that
hostility took the obvious form—deeming executory arbitra-
tion agreements invalid and utterly “illegal and void,” Home
2 The text of § 1 contains a scrivener’s error and includes the phrase
“valid and enforceable” twice. See Sch. City of E. Chicago. v. E. Chicago Fed'n
of Tchrs., Loc. No. 511, A.F.T., 422 N.E.2d 656, 658 n.1 (Ind. Ct. App. 1981).

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No. 23-1812 11
Ins. Co. of N.Y. v. Morse, 87 U.S. 445, 450–51 (1874), or at least
freely revocable, see, e.g., Tobey v. County of Bristol, 23 F. Cas.
1313, 1321 (C.C.D. Mass. 1845) (No. 14,065) (Story, J.); see also
Viking River Cruises, 596 U.S. at 650 n.3 (describing the doc-
trines of ouster and revocability); WESLEY A. S TURGES ,
TREATISE ON C OMMERCIAL A RBITRATIONS AND A WARDS §§ 15–
25 (1930) (summarizing the enforceability of arbitration agree-
ments at common law and in equity).3
In the lead-up to the FAA, however, the federal courts’
hostility was often showing in a different device. By that time
some states had started to pass their own arbitration acts de-
claring arbitration agreements to be valid. See, e.g., Arbitration
Law, ch. 275, 1920 N.Y. LAWS 803. Even under the standards of
Swift v. Tyson, 41 U.S. 1 (1842)—which permitted federal
courts then to interpret the general substantive common law,
rather than apply the law as determined by the relevant state
courts—any substantive statutory rights this legislation cre-
ated would have been presumptively entitled to recognition
in federal court. But courts at the time concluded these laws
were not substantive at all. Rather arbitration acts were
deemed to govern only procedure or remedies, both of which
were exclusively the subject of the law of the forum, making
the ability to compel arbitration turn almost entirely on the
court in which the dispute was brought. See Red Cross Line v.
Atl. Fruit Co., 264 U.S. 109, 118, 124 (1924); Alexandria Canal Co.
v. Swann, 46 U.S. (5 How.) 83, 87–88 (1847); U.S. Asphalt, 222
3 As many of these sources note, different authorities governed arbi-
tration agreements that were entered in court or that merely sought to
have an arbitrator decide the value of a contractual promise as a condition
precedent to performance of the contract. We gloss over this distinction
because those scenarios are not implicated here.

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12 No. 23-1812
F. at 1007, 1011; Berkovitz v. Arbib & Houlberg, 130 N.E. 288,
289–90 (N.Y. 1921) (Cardozo, J.).
Because of this understanding, federal courts before the
FAA could conceivably accept that an arbitration agreement
was both valid and enforceable as a mere contract but refuse
to compel arbitration, stay litigation, or dismiss a suit that
breached the agreement. See Red Cross Line, 264 U.S. at 122–
23. This was in part because those remedies were deemed
equitable in nature, essentially ordering specific performance
of the arbitration agreement, and thus they were beyond the
powers of a non-equity court and contrary to historical
equitable principles. Id. at 123; Hayes v. Allstate Ins. Co., 722
F.2d 1332, 1339 (7th Cir. 1983) (Posner, J., dissenting); see
Viking River Cruises, 596 U.S. at 650 n.3 (noting this approach
as another facet of the courts’ hostility towards arbitration);
Tobey, 23 F. Cas. at 1321–22 (describing how the refusal to
compel arbitration evolved out of general principles limiting
the remedy of specific performance). The federal courts’
preferred legal remedy when a party brought a suit despite a
valid arbitration agreement was the typical one for breach of
any contract—money damages—often only nominal in
amount. E.g., Munson v. Straits of Dover, S.S. Co., 102 F. 926,
928 (2d Cir. 1900). And that this outcome was based on
principles of equity meant it could not be affected by contrary
state law. The Conformity Act—which governed procedure
in federal court prior to the Federal Rules of Civil Procedure—
directed federal courts to adopt the procedures and remedies
of the local state courts, but only for “common-law causes” as
opposed to “equity and admiralty causes.” R EV. S TAT. §§ 914–
915 (1878).

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No. 23-1812 13
Although the era of Swift and the Conformity Act ended
in 1938 with the enactment of the Federal Rules of Civil Pro-
cedure and the decision in Erie R.R. v. Tompkins, 304 U.S. 64
(1938), some vestiges of those policies remain to this day. Erie
holds that federal courts must apply the substantive laws of
the states, as interpreted by those states’ courts, on matters
not otherwise controlled by federal law. See Houben v. Telular
Corp., 309 F.3d 1028, 1032 (7th Cir. 2002) (noting Erie applies
both in diversity cases and when state-law questions arise
from supplemental jurisdiction). Questions of procedure re-
main governed by the law of the forum under this rule. See
Hanna v. Plumer, 380 U.S. 460, 471 (1965). As, perhaps, do
some questions of remedy. Under what has been called the
“equitable-remedial-rights doctrine,” the Supreme Court has
suggested that the equitable remedies available in federal
court for the violation of state substantive rights might con-
tinue to depend on federal law, even after Erie. See Guar. Tr.
Co. of N.Y. v. York, 326 U.S. 99, 105 (1945); Fid. & Deposit Co. of
Md. v. Edward E. Gillen Co., 926 F.3d 318, 326 & n.11 (7th Cir.
2019) (collecting authorities); Sonner v. Premier Nutrition Corp.,
971 F.3d 834, 844 (9th Cir. 2020) (denying relief under this doc-
trine); see also Pusey & Jones Co. v. Hanssen, 261 U.S. 491, 497–
98 (1923) (stating rule before Erie). Those equitable remedies
are, in turn, based on “the principles of the system of judicial
remedies which had been devised and was being adminis-
tered by the English Court of Chancery at the time of the sep-
aration of the two countries,” Grupo Mexicano de Desarrollo
S.A. v. All. Bond Fund, Inc., 527 U.S. 308, 318 (1999) (quoting
Atlas Life Ins. Co. v. W.I.S., Inc., 306 U.S. 563, 568 (1939)), except
as those principles may be altered by Congress, e.g., United
States v. Oakland Cannabis Buyers' Co-op., 532 U.S. 483, 496–97
(2001). At the time of independence, of course, the equitable

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14 No. 23-1812
principles hostile to arbitration were well settled in both
American and English courts. See Tobey, 23 F. Cas. at 1320–21.
Although Congress changed things by passing the FAA in
1925, what is important for Rodgers-Rouzier’s argument is
how, precisely, it did so. In her telling, Congress abrogated
the federal courts’ hostility to arbitration only to the extent
that the FAA applies, and not a jot further. So, she insists, fed-
eral courts were forced to abandon their centuries-old equita-
ble principles to obey the FAA’s directions in cases where the
FAA governs, but where it does not apply, the federal courts
can, should, and must continue the tradition of denying spe-
cific enforcement of arbitration agreements through stay or
dismissal. Thus, she maintains, breach of an arbitration agree-
ment that is rendered valid only by state law can be remedied
solely by an award of damages on a counterclaim in federal
court, or perhaps an injunction sought in state court. But see
Donovan v. City of Dallas, 377 U.S. 408, 412–13 (1964) (prohib-
iting state courts from enjoining federal litigation).
And even if state law could authorize a federal court to stay
or dismiss a lawsuit based on an arbitration agreement, in the
abstract, Rodgers-Rouzier further argues that the IUAA itself
does not do so. Section 3 of the IUAA authorizes a “court with
jurisdiction” to compel arbitration and to stay litigation pend-
ing that arbitration, and section 17 clarifies that “court” means
only an Indiana state court and that “jurisdiction” extends
only to agreements providing for arbitration in Indiana. I ND.
C ODE §§ 34-57-2-3, -17. Because this suit is in federal court,
and the agreement would obligate her to arbitrate in Tennes-
see (where she was last employed), Rodgers-Rouzier con-
tends that the IUAA’s stay and dismissal remedies do not ap-
ply to her agreement on the IUAA’s own terms.

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No. 23-1812 15
Although Rodgers-Rouzier presents her arguments force-
fully, we decline to turn back the clock and adopt rules that
were considered “an anachronism” a century ago, see Ku-
lukundis, 126 F.2d at 985 (citing legislative history), and in ten-
sion with the developments of “modern times” during the
presidency of James K. Polk, Tobey, 23 F. Cas. at 1321. In the
past century, the Supreme Court has consistently understood
the specific enforcement of an arbitration agreement to be im-
plied by its substantive validity. As a matter of federal law,
then, we have abandoned any distinction between the validity
of an arbitration clause as a substantive matter and its enforce-
ability by stay or dismissal as a remedial or procedural matter.
See Southland, 465 U.S. at 17 (Stevens, J., concurring in part and
dissenting in part) (suggesting that “intervening develop-
ments in the law” have supplanted the view that arbitration
is “procedural in nature”). If § 1 of the IUAA renders this
agreement “valid and enforceable” as a matter of substantive
Indiana law, then, under Erie, a federal court must give that
clause the same effect an Indiana court would, even if neither
the IUAA nor the FAA authorizes the federal court to do so in
their texts.
The collapse of the distinction between the validity of an
arbitration agreement and the remedies available for its en-
forcement is most easily seen in the Supreme Court’s caselaw
addressing the mirror image of this case: an arbitration clause
that § 2 of the FAA renders valid, but that a state court would
otherwise refuse to enforce. As we have already noted, the Su-
preme Court has been clear that § 2 is a rule of substantive law
that preempts contrary state law, even in state court. See Vi-
king River Cruises, 596 U.S. at 650; Southland, 465 U.S. at 12. Yet
the Court has consistently left open the related question
whether §§ 3 and 4 of the FAA apply in state courts. See

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16 No. 23-1812
Badgerow v. Walters, 596 U.S. 1, 8 n.2 (2022); Volt, 489 U.S. at
477 n.6; Southland, 465 U.S. at 16 n.10. Much like § 3 of the
IUAA, it is those two sections of the FAA that specify how a
court may enforce an arbitration agreement by staying litiga-
tion or compelling the parties to arbitrate based on the agree-
ments that § 2 of the FAA makes valid and enforceable. Yet
the plain text of these sections refers exclusively to “the courts
of the United States” and a “United States district court.”
9 U.S.C. §§ 3–4.
Tracing much of the history described above, several Jus-
tices have taken the view that the explicit references to only
federal courts in §§ 3 and 4 implicitly suggests that § 2 also
applies only in federal court as a rule of procedure or remedy.
And even if that were not the case, these Justices argued, that
state courts fall outside the textual scope of §§ 3 and 4 sug-
gests they should be permitted to decide themselves what
procedures and remedies to offer when enforcing those agree-
ments that § 2 might make substantively valid. But, decisive
for our purposes, these Justices offered their views only in dis-
sent. See Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 284
(1995) (Scalia, J., dissenting); id. at 286–97 (Thomas, J., dissent-
ing); Southland, 465 U.S. at 24–33 (O’Connor, J., dissenting).
Indeed, Justice Thomas has been steadfast in his opposition to
the Court’s rulings in this area. E.g., Viking River Cruises, 596
U.S. at 665 (Thomas, J., dissenting) (collecting cases). Unless
he persuades four of his colleagues, though, we remain com-
pelled to follow the reasoning of the majority opinions that
have rejected this procedural or remedial interpretation of

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No. 23-1812 17
arbitration in favor of a substantive one. See Savory v. Cannon,
947 F.3d 409, 421 (7th Cir. 2020) (en banc).4
That majority of the Court, when confronted with an Ala-
bama law expressly prohibiting specific enforcement as a
remedy for the breach of an arbitration agreement, A LA. C ODE
§ 8-1-41(3), held that this law was preempted by § 2 of the FAA
just as much as state decisional law deeming arbitration
agreements utterly void. Allied-Bruce, 513 U.S. at 272–73; id. at
294 (Thomas, J., dissenting) (distinguishing these grounds for
an Alabama court’s refusing to compel arbitration). The Court
gave no credence to any distinction between the validity of an
arbitration agreement and its enforcement and deemed them
both to be controlled by § 2’s substantive rule. Likewise in
Southland, though the Court left open the question whether
§§ 3 and 4 applied in state courts, the majority emphasized
that § 2 established a policy that would not allow “one party
to ignore the contract and resort to the courts,” thereby requir-
ing state courts to specifically enforce the agreement through
a stay or order compelling arbitration. 465 U.S. at 7; accord
Badgerow, 596 U.S. at 8 n.2 (“We have made clear that Section
2 ‘carries with it’ a duty for States to provide certain
4 The limitations to Indiana courts in §§ 3 and 17 of the IUAA could
also imply that the Indiana Legislature and the Uniform Law Commission
(which recommends similar language for all state uniform arbitration acts)
understood arbitration to be purely procedural or remedial in nature. But
that possibility need not detain us, because, for Erie purposes, the catego-
rization of a given law as substantive or only procedural (and the typically
more important question whether there is a conflict between state law and
a federal rule of procedure) is itself a matter we assess under federal law.
See Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 404–
05, 410 (2010); Hahn v. Walsh, 762 F.3d 617, 633 (7th Cir. 2014).

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18 No. 23-1812
enforcement mechanisms equivalent to the FAA’s.”); Buckeye
Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 447 (2006) (ex-
plaining that Southland’s interpretation of § 2 necessarily in-
corporates caselaw regarding § 4). The procedural and reme-
dial obligation to stay or dismiss litigation in contravention of
an arbitration agreement is part of the substantive federal law
that makes the agreement valid.
Although less often litigated, the Court’s discussion of
state arbitration law also confirms that the remedies for viola-
tion of arbitration agreements fall on the substantive line of
Erie’s substance-procedure divide. The leading case is Bern-
hardt v. Polygraphic Company of America, 350 U.S. 198 (1956).
The Court there addressed another arbitration agreement that
had seemingly fallen outside the scope of the FAA (for lack of
a connection to interstate commerce). The Second Circuit had
nevertheless compelled arbitration on the theory that §§ 3 and
4 of the FAA provided procedural rules that governed in fed-
eral court, regardless of the nature of the underlying arbitra-
tion agreement. Id. at 201. The Court reversed, holding first
that §§ 3 and 4 applied only to those agreements identified in
§ 2, and second, that compelling arbitration in these circum-
stances would conflict with Erie. The Court conceptualized
the right to compel arbitration as a substantive right that
should have received equal treatment in state and federal
courts. Id. at 202–04. Because Vermont law deemed arbitration
agreements to be freely revocable, the Court concluded that
the Second Circuit had erred in compelling arbitration as it
had, though the Court left it for the district court on remand
to decide whether Vermont or the more arbitration-friendly
New York law governed the litigation. Id. at 205.

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No. 23-1812 19
Although Rodgers-Rouzier emphasizes that the Bernhardt
Court did not consider what would happen if state law had
favored enforcement of an arbitration agreement that fell out-
side the scope of § 2 of the FAA, its reasoning provided a
strong hint. Rather than stop at the observation that §§ 3 and
4 of the FAA were limited to those agreements identified in
§ 2, which would have been sufficient to reverse the Second
Circuit even assuming the FAA were procedural, the Court
held that the question of arbitration enforcement was decid-
edly substantive and left open the possibility that on remand
the district court might compel arbitration under state law (al-
beit that of a different state). Standing alone, Bernhardt might
not foreclose Rodgers-Rouzier’s arguments, but over count-
less decisions in the last 70 years the Supreme Court has con-
sistently framed the enforcement of arbitration agreements to
be inherent in the agreement’s validity under the relevant
substantive law, whatever its source. This conclusion was
based, in no small part, on a fundamental goal of uniformity
in outcome between claims litigated in state and federal court.
See Southland, 465 U.S. at 15; Bernhardt, 350 U.S. at 203. We
therefore decline Rodgers-Rouzier’s invitation to travel back
in time before these developments, destroy that uniformity,
and provoke direct conflicts between state and federal courts.
We instead conclude that the district court had the author-
ity to enforce this arbitration agreement under Indiana law to
the extent and by means substantially equivalent to those that
Indiana law grants to the Indiana state court system. Rodgers-
Rouzier does not contend that an Indiana court would be pro-
hibited from dismissing litigation based on an arbitration
agreement, so we conclude the district court here had author-
ity to do the same through the functional equivalent of forum
non conveniens. Cf. Mason-Dixon Lines, Inc. v. Loc. Union No.

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20 No. 23-1812
560, Int'l Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers
of Am., 443 F.2d 807, 809 (3d Cir. 1971) (holding federal court
has inherent authority under Labor-Management Relations
Act to stay litigation when FAA does not apply).5
C.
The next question we must answer is whether American
Queen is entitled to compel arbitration under Indiana law.
Rodgers-Rouzier continues to press three theories for why In-
diana law would not compel her to arbitrate. First, and most
prominently, she argues that the agreement has a choice-of-
law clause in section six specifying that the agreement is gov-
erned by the FAA, and so compelling arbitration under state
law violates the terms of the agreement. Second, she contends
that section two is unconscionable because it gives American
Queen complete freedom to select a biased arbitrator. Third,
she insists that the waiver of the statute of limitations in sec-
tion four of the agreement violates the FLSA and, either alone
or in combination with the other asserted problems, renders
the whole agreement unconscionable. Ultimately, we are per-
suaded by the first of these arguments and therefore have no
need to resolve the other two, though we offer some
5 American Queen briefly contends that the district court might have
better stayed the litigation, rather than dismissed it. The Supreme Court
recently held that the FAA requires a court to stay, not dismiss, litigation
when it compels arbitration. Smith v. Spizzirri, 144 S. Ct. 1173, 1178 (2024).
But Indiana courts have interpreted the IUAA to give discretion to dismiss
or stay as may be appropriate in a given case. See Destination Yachts, Inc. v.
Pierce, 113 N.E.3d 645, 653–54 (Ind. Ct. App. 2018). No one contends that
the district court abused its discretion on the terms established by Indiana
caselaw, so we do not consider that question.

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No. 23-1812 21
observations about the waiver of the statute of limitations to
clarify issues that may arise again in this case.
Rodgers-Rouzier’s first argument is simply presented: sec-
tion six of the agreement says that the agreement is “governed
by the Federal Arbitration Act,” not the IUAA. And nothing
in the FAA “shall apply to contracts of employment of sea-
men,” such as herself. 9 U.S.C. § 1. She therefore argues she
cannot be compelled to arbitrate under the agreement’s own
terms.
The district court agreed that under the FAA it could not
compel arbitration, but it was persuaded that if the FAA does
not apply, then some law must. See Harper v. Amazon.com
Servs., Inc., 12 F.4th 287, 294 (3d Cir. 2021). This observation
that some law must govern the agreement is true as far as it
goes. But by framing this analysis in terms of causation—that
the FAA’s exclusion for seamen leads to the application of In-
diana law—the court overlooked some critical nuance. Even
if the court were compelling arbitration under the FAA, § 2 of
the FAA would affect only the substantive validity and en-
forceability of the provisions governing the arbitration itself,
not any other provision “that happens to appear in a contract
that features an arbitration clause.” Viking River Cruises, 596
U.S. at 653 n.5. An arbitration agreement is just a type of con-
tract, and the FAA does not itself provide a substantive law
governing the formation or general interpretation of con-
tracts, so ordinary state contract law always fills in crucial
gaps in any arbitration agreement. See Arthur Andersen LLP v.
Carlisle, 556 U.S. 624, 630–31 (2009); Druco Restaurants, Inc. v.
Steak N Shake Enterprises, Inc., 765 F.3d 776, 781–82 (7th Cir.
2014). State law thus had always governed this agreement. Ac-
cord Harper, 12 F.4th at 295. If the FAA applied, it would have

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22 No. 23-1812
preempted state law only to the extent necessary to overcome
a conflict, without ever displacing state law entirely.
We therefore agree with the district court’s premise that
we must assess the agreement under Indiana law, including
the IUAA, even despite section six stating that the FAA gov-
erns. State law always governed the agreement in the back-
ground, regardless of the FAA’s application, and the omission
of an express reference to the IUAA is immaterial. Ordinary
contracts are entered every day under state law without the
contract recognizing as much, and we can safely assume that
the IUAA demands no more specificity before an agreement
to arbitrate may be entered. Cf. Arafa v. Health Express Corp.,
233 A.3d 495, 506 (N.J. 2020) (“[T]here has been no need to
express an intent that the [New Jersey Arbitration Act] would
apply because its application has been automatic, absent
preemption.”). But see IND. C ODE § 34-57-2-1(a) (“This chapter
also applies to arbitration agreement between employers and
employees or between their respective representatives (unless
otherwise provided in the agreement)” (emphasis added)). Sec-
tion 1 of the IUAA may well make this agreement “valid and
enforceable.” I ND. C ODE § 34-57-2-1(a). If the agreement
stopped at section one—the promise to settle any dispute by
arbitration—then American Queen might be entitled to com-
pel arbitration under the IUAA.
But the agreement does not stop at section one. Sections
two through six are just as much a part of the agreement that
the IUAA and ordinary Indiana contract law would render
valid and enforceable, and this includes section six’s state-
ment that the agreement is governed by the FAA. That section
is, in essence, a choice-of-law clause. The enforceability of that
clause must itself be assessed under Indiana law. See Harper,

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No. 23-1812 23
12 F.4th at 295. And Indiana law generally favors enforcement
of contractual stipulations to the choice of law. See, e.g., Allen
v. Great Am. Rsrv. Ins. Co., 766 N.E.2d 1157, 1162 (Ind. 2002);
Champlain Cap. Partners, L.P. v. Elway Co., 58 N.E.3d 180, 201
(Ind. Ct. App. 2016) (enforcing clause providing that contract
“shall be governed under Delaware law”).
Put another way, when Rodgers-Rouzier and American
Queen agreed to arbitrate, they did not agree to arbitrate in
the abstract but agreed to arbitrate subject to the FAA. The
Supreme Court’s decision in Volt Information Sciences is in-
structive. In Volt, the California Court of Appeal had inter-
preted an agreement’s choice-of-law clause to specify Califor-
nia laws on arbitration and the Supreme Court explained that
despite the FAA’s preemptive power, this interpretation of
the choice-of-law clause remained an ordinary question of
state contract law. 489 U.S. at 474–77. The only question of fed-
eral law before the Court was whether the FAA preempted
certain features of the California rules of arbitration, but the
Court saw no conflict because the FAA’s primary purpose
was “ensuring that private agreements to arbitrate are en-
forced according to their terms,” including there the term that
the arbitration agreement would be governed by California
law. Id. at 479. The FAA may have rendered the agreement
valid as a substantive matter, but the valid agreement was to
arbitrate subject to California law on arbitration procedures.
Although the Indiana courts have seemingly not addressed
this fact pattern under the IUAA (as opposed to the FAA), the
signs available suggest that they would approach the issue in
much the same way and treat the choice of law as part of the
agreement here. See Albright v. Edward D. Jones & Co., 571
N.E.2d 1329, 1333 (Ind. Ct. App. 1991) (relying on Volt to

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24 No. 23-1812
enforce choice-of-law clause selecting Missouri law and refus-
ing to compel arbitration under Missouri law).
One difference between Volt and this case is the result after
enforcement of the choice-of-law clause. The California law in
Volt merely altered the procedural incidents surrounding ar-
bitration and did not stop a party from compelling arbitration
entirely. In another case, the Court relied on this distinction
to hold that, despite a choice of Montana law, the FAA
squarely preempted a Montana statute requiring special no-
tice in an arbitration agreement before arbitration could be
compelled in court. Doctor's Assocs., Inc. v. Casarotto, 517 U.S.
681, 688 (1996); accord Earley v. Edward Jones & Co., 105 N.E.3d
1094, 1101 (Ind. Ct. App. 2018) (recognizing that Casarotto ab-
rogated Albright). We see no corresponding principle of Indi-
ana law that would invalidate this choice-of-law clause. Alt-
hough it is conceptually possible for this choice-of-law clause
to be the rare exception that the Indiana courts deem void for
public policy reasons, see, e.g., Sullivan Corp. v. Rabco Enters.,
160 N.E.3d 1124, 1127 (Ind. Ct. App. 2020) (refusing to enforce
forum-selection and choice-of-law provisions that were ex-
pressly prohibited by statute), American Queen has provided
no basis for us to conclude that would be true here. Just like
in Volt, Indiana’s strong public policy in favor of arbitration
agreements does not do this work, because the policy is only
to enforce the agreements that the parties themselves have
reached. See Land v. IU Credit Union, 218 N.E.3d 1282, 1286–87
(Ind. 2023), aff'd on reh'g, 226 N.E.3d 194 (Ind. 2024); Norwood
Promotional Prod., Inc. v. Roller, 867 N.E.2d 619, 626 (Ind. Ct.
App. 2007). Because the parties agreed that arbitration would
be governed by the FAA, which would not permit American
Queen to compel arbitration, we conclude that Indiana law

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No. 23-1812 25
also would not compel Rodgers-Rouzier to arbitrate under
this agreement.
The lack of a ground on which to invalidate the choice-of-
law clause also scuttles American Queen’s primary argument
for discounting the effect of that choice of law. American
Queen relies on the severability clause: “The provisions of this
Agreement shall be severable. If any portion of this Agree-
ment is held to be invalid or unenforceable, it shall not affect
the remaining portions of this Agreement. This Agreement
may be modified by a court or an arbitrator to render it en-
forceable.” But we cannot sever the choice-of-law clause on
these terms (or as a matter of general Indiana contract law,
e.g., Lee v. State, 816 N.E.2d 35, 39 (Ind. 2004)) because we have
no reason to say that the choice-of-law clause is “invalid or
unenforceable.” To the contrary, we think the choice-of-law
clause is both valid and enforceable. The result of enforcing
that valid clause is just that American Queen’s request to com-
pel arbitration must be denied. Cf. Rittmann v. Amazon.com,
Inc., 971 F.3d 904, 920 n.10 (9th Cir. 2020) (noting defendant
had not explained why “choice-of-FAA” clause was uncon-
scionable, and thus subject to severability analysis, before re-
jecting severability argument on different grounds). Nor can
we take the invitation to modify the agreement to render the
agreement enforceable. Absent a yawning void in the contract
or reason to deem a particular part of the agreement invalid,
that language is essentially circular—the agreement we
would be tasked with rendering enforceable includes the
agreement to the choice of law. If all modifications were to
favor compelling arbitration, regardless of the other terms of
the agreement, we would have no limiting principle. We
could just as easily modify the agreement to compel arbitra-
tion of the worker’s compensation claims that the parties

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26 No. 23-1812
expressly excluded from the agreement. We will not rewrite
the contract from scratch to avoid an outcome to which the
agreement itself leads.
Perhaps we would need to address the severability of sec-
tions two and four of the agreement, if we were to agree with
Rodgers-Rouzier’s arguments that they were void for uncon-
scionability. But given our conclusion that the choice-of-law
clause means that Rodgers-Rouzier may not be compelled to
arbitration, we do not decide whether either section is uncon-
scionable today, let alone whether any unconscionability
would preclude an order compelling arbitration. Critically,
American Queen has not yet asked us or the district court to
enforce the waiver of the statute of limitations in section four
directly; instead, it has appropriately contended only that the
arbitration issue came first and that it was for the arbitrator to
decide the validity of that waiver in the first instance (assum-
ing arbitration could be compelled).
But in response to Rodgers-Rouzier’s contention that arbi-
tration could not be compelled because the waiver was un-
conscionable, the district court went beyond sending the
question of the waiver’s validity to arbitration and instead re-
jected her argument’s premise, suggesting that the waiver
was entirely lawful. Contra Boaz v. FedEx Customer Info. Servs.,
Inc., 725 F.3d 603, 606 (6th Cir. 2013). For this proposition, the
court relied primarily on our decision in Taylor v. Western &
Southern Life Insurance Co., 966 F.2d 1188 (7th Cir. 1992). That
was error. Taylor involved a claim under 42 U.S.C. § 1981,
which we noted had no federal statute of limitations and so
borrowed the state-law limitations period, including any
state-law exceptions subject only to potential federal policy
limits. 966 F.2d at 1203. The FLSA, in contrast, has its own

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No. 23-1812 27
federal statute of limitations—two years, or three, if the viola-
tion is shown to be willful, 29 U.S.C. § 255(a)—and that fed-
eral law would preempt any state law to the contrary, if there
were a conflict. The validity of this waiver has nothing to do
with the question whether the court was compelling arbitra-
tion under the FAA or IUAA, as the district court thought, be-
cause again the FAA could at most govern the agreement to
arbitrate itself, not every other provision that happens to be
in the same contract. Viking River Cruises, 596 U.S. at 653 n.5.
More importantly, the district court’s reliance on § 1981
precedent overlooked what makes the FLSA unique—it is
“designed to defeat rather than implement contractual ar-
rangements.” Brant v. Schneider Nat'l, Inc., 43 F.4th 656, 662
(7th Cir. 2022) (quoting Sec’y of Labor v. Lauritzen, 835 F.2d
1529, 1544–45 (7th Cir. 1987) (Easterbrook, J., concurring)). No
matter how voluntarily they purport to do so, parties may not
generally waive the statutory wages the FLSA promises,
whether directly or indirectly, such as by agreeing to settle a
wage claim for less than the amount to which the worker is
entitled. See, e.g., Brooklyn Sav. Bank v. O'Neil, 324 U.S. 697, 707
(1945); Walton v. United Consumers Club, Inc., 786 F.2d 303, 306
(7th Cir. 1986). It would be equally unlawful for an employer
and employee to agree to a pay rate of $1 per hour as it would
be to agree to submit all wage claims to an arbitrator and
waive any arbitration award more than $1 per hour.
We do not mean to suggest that the statute-of-limitations
waiver in section four of this agreement is necessarily
equivalent to such a blatant run around of the minimum
wage, nor to prejudge the enforceability of this waiver or the
power to compel arbitration under a hypothetical agreement
that contains a term that violates the FLSA. Again, no one has

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28 No. 23-1812
asked yet to enforce the waiver here and we are not required
now to decide whether it would be lawful to do so. Nor do we
need to opine on whether, if the waiver were unlawful, it
would be severable or render the entire agreement void. We
have merely confirmed—as American Queen recognized at
oral argument—that the district court’s decisions so far do not
close the book on the legality of the waiver and thought it
prudent to highlight some of the questions that will need to
be explored, should that issue arise again.
D.
Likewise, our resolution of Rodgers-Rouzier’s arbitration
agreement means we do not need to separately decide any-
thing with respect to the 127 other employees who sought to
opt into her suit before the district court sent notice to them
and who later joined her appeal. The district court relied on
our decision in Hollins v. Regency Corp., 867 F.3d 830, 834 (7th
Cir. 2017), to conclude that because it had dismissed Rodgers-
Rouzier’s individual suit without “conditionally certifying” a
collective action, the opt-ins were not parties to the case.
Rodgers-Rouzier and the Secretary of Labor, as amicus curiae,
contend that this interpretation of the collective-action mech-
anism in 29 U.S.C. § 216(b) conflicts with the interpretation of
every other circuit to consider the question. See, e.g., Waters v.
Day & Zimmermann NPS, Inc., 23 F.4th 84, 90 (1st Cir. 2022)
(collecting cases). They urge us to distinguish Hollins and hold
that employees become parties to a FLSA case as soon as they
opt-in, regardless of whether a collective has been certified
(conditionally or otherwise). American Queen, for its part,
contends that because these employees were not parties to the
district court litigation under Hollins, they are prohibited from
appealing the judgment. See Halle v. W. Penn Allegheny Health

-- 28 of 29 --

No. 23-1812 29
Systems Inc., 842 F.3d 215, 227 (3d Cir. 2016) (holding that any
opt-ins are no longer parties after decertification of a collective
action and therefore cannot appeal from a later final judgment
to challenge decertification).
We have undone the premise of the district court’s ruling
and concluded that Rodgers-Rouzier’s individual case may
proceed in federal court. That reopens the possibility that the
case will proceed as a collective action. At the very least, her
interest in continuing her own case provides her standing to
argue on appeal that the case should be allowed to proceed
collectively, too, after remand. See Espenscheid v. DirectSat
USA, LLC, 688 F.3d 872, 877 (7th Cir. 2012). Her presence in
this appeal suffices to distinguish Halle, 842 F.3d at 228–29
(noting that original plaintiff did not appeal), and avoids any
need to address any other potential appellant’s ability to bring
this appeal before us. Cf., e.g., Tierney v. Advoc. Health & Hosps.
Corp., 797 F.3d 449, 451 (7th Cir. 2015) (one party’s standing
with respect to a given claim provides the court with jurisdic-
tion regardless of any other person’s standing). We thus need
go no further to restore the 127 employees to the position they
were in before the dismissal of Rodgers-Rouzier’s case. What,
precisely, that position is or may become in the future are
questions to be resolved in further litigation.
III.
We reverse the district court’s dismissal of this case and
remand for further proceedings consistent with this opinion.

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