ORDERED that Movants' Motion to Transfer and Compel Arbitration and accompanying Motion to Stay are hereby DENIED [sic] to the extent that the parties are unable to complete discovery and/or answer for trial, the Court directs the parties to confer and submit an agreement that reasonably extends pretrial and trial dates.
It is so ORDERED. The same is true of the court's September 30, 2025 order certifying the Brown Defendants' interlocutory appeal as "frivolous and dilatory" and electing to retain jurisdiction pending disposition of the appeal. It states, in pertinent part:
IT IS ORDERED that Plaintiff's Renewed Opposed Motion [ECF 123] to Certify Defendants' Amended Notice of Interlocutory Appeal [ECF 121] as frivolous and/or dilatory is
GRANTED.
IT IS FURTHER ORDERED that the Court accordingly finds Defendants' Amended Notice of Interlocutory Appeal [ECF 121] of the Court's Order [ECF _____________________
15
114] Denying Defendants' Motion to Transfer and Compel Arbitration [ECF 104] is frivolous and dilatory warranting summary disposition.
IT IS FURTHER ORDERED that the Court hereby elects to retain jurisdiction pending summary disposition of Defendants' interlocutory appeal in furtherance of proceeding as scheduled.
It is so ORDERED. Given these circumstances, we considered remanding for the district court to provide a statement of reasons for its ruling.20But our painstaking _____________________
16
examination of the record has convinced us that doing so is not strictly necessary. Our rigorous assessment of the record and the parties' appellate submissions—connecting all the dots—has rendered us sufficiently confident that the district court denied the Brown Defendants' motion to compel arbitration because it determined that they had waived their right to require GAR's claims be adjudicated by arbitration rather than litigation.21
III.
Waiver is "the intentional relinquishment or abandonment of a known right." Morgan v. Sundance, Inc., 596 U.S. 411, 417 (2022) (quoting United States v. Olano, 507 U.S. 725, 733 (1993)). "The right to arbitrate a dispute, like all contract rights, is subject to waiver." Nicholas v. KBR, Inc., 565 F.3d 904, 907 (5th Cir. 2009). Waiver may be express or implied from conduct. See Garcia, 141 F.4th at 677 n.5. In this appeal, our focus is the latter. Id.
A.
"[T]o determine whether the right to arbitrate was [impliedly] waived . . . , we now ask whether the [moving] party 'knowingly relinquish[ed] the right to arbitrate by acting inconsistently with that right.'"
Id. at 676 (quoting Morgan, 596 U.S. at 419). Showing that a party has
"substantially invoked the judicial process" is "one way of demonstrating that a party waived its right [to arbitrate]." Id.22To substantially invoke the judicial process, a party must "at the very least, engage in some overt act in court that evinces a desire to resolve the arbitrable dispute through litigation _____________________
17
rather than arbitration." Id. at 676 n.4 (quoting In re Mirant Corp., 613 F.3d 584, 589 (5th Cir. 2010)). Thus, when the moving party is a defendant, the court must assess whether the defendant, during the course of the litigation, has acted in such a manner that the law deems the defendant to have acquiesced to having the claims at issue adjudicated by means of court litigation rather than arbitration.
"[A] bright-line rule is inappropriate for deciding whether a party has waived its right to arbitration." Id. at 677 (quoting Mirant, 613 F.3d at 589). Rather, "whether a party waived its right to arbitrate is necessarily fact- intensive; thus, a fact that weighs in favor of waiver in one case may not carry any weight in another." Id. "We consider the totality of the circumstances[,]" and "evaluate the issue of delay 'objectively, independent of motivation,' considering it in light of all of the facts." Id. at 677, 680 (quoting Walker v. J.C. Bradford & Co., 938 F.2d 575, 578 (5th Cir. 1991)).23
B.
In this instance, having considered the entirety of the circumstances and applicable law, we are convinced that the district court correctly determined that the Brown Defendants waived—intentionally relinquished—their arbitration rights vis-à-vis GAR's claims by substantially invoking the judicial process. As detailed in the case chronology set forth above, the Brown Defendants' litigation conduct demonstrates their knowing acquiescence to a judicial determination of GAR's claim. _____________________
18
Notably, neither of the Brown Defendants' two Rule 12(b) motions to dismiss—the first of which included jurisdictional and merits-based grounds for dismissal—asserted a right to arbitrate.24Just as they did with their Rule 12(b)(6) motion, the Brown Defendants could have filed simultaneous motions to dismiss for lack of personal jurisdiction and to compel arbitration without prejudicing their jurisdictional challenge.25Likewise, a right to arbitrate (unlike the Brown Defendants' personal jurisdiction challenge) was neither expressly reserved in their October 10, 2024 Answer nor included in the thirty-two (32) affirmative defenses asserted therein. _____________________
19
These facts distinguish this case from those that the Brown Defendants cite in support of their position. See Garcia, 141 F.4th at 679 n.7 (distinguishing prior cases' procedural postures); KeyTrade USA, Inc. v. AIN Temouchent M/V, 404 F.3d 891, 897-98 (5th Cir. 2005) (emphasizing that a defense asserted in the answer "called on the district court to refer the case to arbitration" and that a defensive motion for summary judgment was filed concurrently with the motion to compel arbitration); Williams v. Cigna Fin. Advisors, Inc., 56 F.3d 656, 661-62 (5th Cir. 1995) (emphasizing that the answer came after a motion for stay pending arbitration); Walker, 938 F.2d at 576-77 (emphasizing that the party seeking arbitration had not previously
"ask[ed] the court to make any judicial decisions"); Tenneco Resins, Inc. v. Davy Int'l, AG, 770 F.2d 416-17, 420-21 (5th Cir. 1985) (repeatedly emphasizing that the answer "alleged as a defense that the action should be dismissed because the dispute was covered by a valid and enforceable arbitration clause in the contract between the parties").26 In Garcia, we made this very point relative to a defendant's answering a complaint but failing to mention an arbitration agreement in its numerous affirmative defenses. 141 F.4th at 679. Citing the Supreme Court's discussion in Morgan, we explained: "Answering a complaint does not typically suggest that a party has substantially invoked the judicial process[,] . . . [b]ut that is not to say that filing an answer can never contribute to such a finding." Id. at
679.
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20
Furthermore, even when seeking dismissal for lack of personal jurisdiction, in addition to urging that GAR's claims were time-barred and otherwise legally flawed, the Brown Defendants' Rule 12 motions sought dismissal with prejudice.27Surely a party's repeated requests for dismissal with prejudice, unaccompanied by any reservation of a right to seek arbitration in its motions, or in one of the thirty-two affirmative defenses asserted in its Answer, signal a desire to resolve an arbitrable dispute through litigation. Cf. Mirant, 613 F.3d at 589 (concluding that arbitration was waived where the movant filed a motion seeking dismissal with prejudice for failure to state a claim before moving to compel arbitration).
In any event, even after the district court denied their renewed motion to dismiss on April 16, 2025, such that the existence of personal jurisdiction would be determined with the merits, the Brown Defendants still did not move to compel arbitration, seek to amend their Answer to assert a right to arbitrate, or even query whether the other parties were amenable to arbitration. Instead, the Brown Defendants conducted merits-based discovery, including the June 25, 2025 deposition of GAR's corporate representative, and twice joined GAR in requesting extensions of various pretrial deadlines (to allow the parties sufficient time for more discovery and _____________________
21
to prepare for a January 2026 jury trial), before finally asserting a right to arbitrate (more than two years into the litigation) on August 11, 2025. Though we have recognized that a court should not infer waiver of arbitration from "minimal discovery," Garcia, 141 F.4th at 678 (internal citations omitted), we also have reasoned, because of potential prejudice and differing arbitration rules regarding discovery, that "[p]arties cannot enjoy the benefits of federal discovery, and then, after doing so, seek to enforce a decision through private resolution," Janvey v. Alguire, 847 F.3d 231, 244 (5th Cir. 2017). In this instance, the Brown Defendants have not demonstrated that the discovery undertaken was "minimal"; nor have they addressed the scope of discovery permitted by the London Court of International Arbitration (LCIA) Rules.
Given the significant consumption of limited judicial resources that accompanies every lawsuit filed, and certainly those pending for years, though "we no longer search for prejudice due to delay, we still find value in an objective consideration of the duration of the proceedings when determining whether there has been a substantial invocation of the judicial process." Garcia, 141 F.4th at 680 n.8. And "[w]e frown upon attempts 'to switch judicial horses in midstream' due to 'poor judgment . . . or poor foresight.'" Id. at 680 (quoting Walker, 938 F.2d at 577). As we reasoned in Walker:
In general, we do not look kindly upon parties who use federal courts to advance their causes and then seek to finish their suits in the alternate fora that they could have proceeded to immediately. Such actions waste the time of both the courts and the opposing parties. The decision whether to arbitrate is one best made at the onset of the case, and not part of the way through[.]
938 F.2d at 577.
22
Finally, the Brown Defendants' vague assertions regarding the purported significance of the June 25, 2025 deposition of GAR's corporate representative fail to convince us that the district court erred in denying their motion to compel arbitration. Specifically, the September 8, 2025 reply submitted to the district court states: "[I]t was only after the June 25, 2025 deposition of Plaintiff's corporate representative that the role of the NDA (and [the Brown] Defendants' estoppel arguments) in this lawsuit came fully into frame." And, on appeal, the Brown Appellants urge: "[O]n June 25, 2025, Appellants participated in the deposition of Appellee's corporate representative, after which the role of the NDA with regard to Appellee's Claims came fully into frame." We assume (but are not certain) that these assertions, though stated differently, attempt to make the same point. Regardless, as GAR points out, the Brown Defendants have had the three-page NDA from the outset of this litigation. And from the filing of their first motion, the Brown Defendants have insisted that GAR's claims seek to hold the Brown Defendants liable in tort for alleged breaches of the NDA. Furthermore, the agreement's arbitration clause is easily found. In fact, it is on the same page (two) as the allegedly violated non-disclosure and non- circumvention provisions. Thus, cases finding no waiver of arbitration where the moving party reasonably had been unaware of an arbitration agreement, but promptly sought to enforce it upon discovery, have no application here. See, e.g., Williams, 56 F.3d at 661.
C.
We are not certain why the Brown Defendants now seek to have an arbitrator, rather than a court, and the jury they previously demanded, adjudicate GAR's claims. But, ultimately, it does not matter. They cannot
23
now regain a right that they, through their litigation conduct, have relinquished.28
We AFFIRM.29
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