RYAN D. BURCH, Plaintiff - Appellant,
P.J. CHEESE, INC., Defendant-Appellee.
from the United States District Court for the Northern
District of Alabama D.C. Docket No. 2:09-cv-01640-SLB
TJOFLAT, JILL PRYOR, Circuit Judges, and MOODY, [*] District Judge.
TJOFLAT, Circuit Judge
is another arbitration dispute in which the parties are
litigating whether or not they should be litigating."
Anders v. Hometown Mortg. Servs., 346 F.3d 1024,
1026 (11th Cir. 2003). In this case, an employee sued his
former employer for alleged discrimination in violation of
several federal statutes. In response, the employer moved the
District Court to submit the dispute to arbitration in
accordance with an employment contract purportedly signed by
the employee. The employee opposed the motion, denying that
he signed the agreement. To resolve the factual dispute, the
District Court held a bench trial and concluded that the
signature was valid. Based on this finding, the Court granted
the employer's motion to compel arbitration, and
dismissed the employee's claims without prejudice.
principal issue on appeal is whether the District Court erred
in concluding that a general jury demand in the
employee's complaint failed to preserve his statutory
right to a jury trial under Section 4 of the Federal
Arbitration Act, 9 U.S.C. §§ 1 et seq.
("FAA"), on the disputed questions of fact related
to the authenticity of his signature on the purported
arbitration agreement. Because we hold that that the specific
procedures provided in Section 4 of the FAA for demanding a
jury trial on arbitrability issues displace the general
procedures for demanding a jury trial under the Federal Rules
of Civil Procedure, we find no error and affirm the District
Burch ("Burch") began working for P.J. Cheese, Inc.
("P.J. Cheese")-a franchisee of Papa Johns located
in Alabama-in 1999. In September, 2004, Burch was promoted to
general manager of P.J. Cheese's Fairfield, Alabama
location. He worked there until October 14, 2007, when he was
asked to turn in his keys.
two years after the firing, on August 14, 2009, Burch brought
this action against P.J. Cheese in the United States District
Court for the Northern District of Alabama, seeking relief
under an assortment of federal employment statutes.
Specifically, Burch alleged that he was paid less than his
female co-workers in violation of the Equal Pay Act of 1963,
29 U.S.C. § 206(d)(1) ("Equal Pay Act"), that
he was discriminated against on account of his race in
violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq. ("Title VII"),
and 42 U.S.C. § 1981 ("Section 1981"), and
that he was terminated in retaliation for filing an Equal
Employment Opportunity Commission ("EEOC") Charge
and applying for Family and Medical Leave Act
("FMLA") leave in violation of the preceding
statutes and the Family and Medical Leave Act of 1993, 29
U.S.C. § 2601 et seq. He demanded a jury trial
on all claims so triable.
response, on October 29, 2009, P.J. Cheese moved the District
Court pursuant to 9 U.S.C. § 3 and 9 U.S.C. § 4 to stay the proceedings and compel
arbitration in accordance with the arbitration terms of an
employment contract purportedly signed by Burch. The Court ordered Burch to file any
opposition to the motion by November 23, 2009. Burch
complied, denying, in an affidavit filed with the court on
November 23, that the signature on the alleged arbitration
agreement belonged to him. He did not, however, specifically
demand that the authenticity of the signature on the
agreement should be decided by a jury.
December 11, 2009, the District Court denied P.J.
Cheese's motion to compel arbitration, concluding that
Burch's denial created a dispute of material fact over
the authenticity of the arbitration agreement, and that he
was therefore "entitled to a trial on the arbitrability
question." Rather than
proceed immediately to trial on the signature issue, the
Court moved forward with the pretrial proceedings on the
merits of Burch's underlying claims. Specifically, the
Court ordered P.J. Cheese to file an answer to Burch's
complaint, and entered a Scheduling Order, setting, among
other things, the deadline for the completion of discovery,
and the dates for the final pretrial conference and trial of
the case. P.J. Cheese complied with the Court's order,
filing its answer on February 15, 2010, and proceeding with
lasted for approximately ten months. At its conclusion, P.J.
Cheese moved for summary judgment on all claims brought in
March 27, 2013, the District Court ruled on P.J. Cheese's
motion, granting summary judgment on Burch's Family
Medical Leave Act and Title VII and Section 1981 claims, but
denying it as to Burch's Equal Pay Act
the Court's ruling on the summary judgment motion, the
parties prepared for litigation on Burch's remaining
claim. At the final pretrial conference, held on July 11,
2013, the parties returned to the question that had been
festering in the background for almost four years-should they
be litigating the merits of the case at all? Distilled down
to its essence, if Burch's signature on the arbitration
agreement was valid, the answer was no; litigation should be
halted, and the proceedings should be referred to
arbitration. If the signature was invalid, the
answer was yes; the proceedings should continue to a trial on
2009, the Court had already ruled that Burch was
"entitled to a trial" on this signature question.
All that remained to be decided in advance of such a trial
was who would resolve the question: a jury or the
court. The District Court asked the parties to brief the
argued that the issue should be tried to a jury.
Specifically, he contended that Section 4 of FAA grants the
party alleged to be in default-in this case, Burch-with a
statutory right to a jury trial on disputed issues of fact
concerning the "making of [an] arbitration agreement,
" and that he invoked this right with the general jury
demand in his complaint. His demand was ample, he argued,
because Federal Rule of Civil Procedure 38 provides that a
general demand preserves the party's right to a jury
trial on any issues triable to a jury under the Seventh
Amendment or a federal statute.
response, P.J. Cheese argued that the signature issue should
be tried to the bench. Although it agreed that Section 4 of
the FAA provided Burch with a statutory right to a jury trial
on any disputed facts related to the validity of his
signature, it contended that Burch waived this right by
failing to timely file a specific jury demand on the
issue as Section 4 of the FAA requires. Further, Burch's
general jury demand under the Federal Rules of Civil
Procedure was inapplicable, P.J. Cheese contended, because
Section 4 speaks to the specific procedures required to
request jury trial on the "making of an arbitration
agreement" and the Federal Rules of Civil Procedure
become applicable only where the FAA is silent.
District Court agreed with P.J. Cheese, holding that
Burch's failure to request a jury trial on the signature
issue "on or before the return day of the notice of
application" in accordance with Section 4 of the FAA
operated as a waiver of his right to a jury trial on that
issue. Following the District Court's decision, Burch
filed an additional motion contending that P.J. Cheese had
waived its right to compel arbitration by failing to demand
arbitration prior to the commencement of Burch's suit
against it and by failing to argue arbitrability in its
motion for summary judgment. The District Court rejected Burch's
arguments, concluding that P.J. Cheese only participated in
litigation on the merits of Burch's claims after being
required to do so by court order, and that it had thus not
acted "inconsistently with the arbitration
September 17, 2013, the District Court tried the signature
issue before the bench. After receiving the relevant
testimony from the parties, it concluded that Burch had
signed the agreement. Based on this finding, it granted P.J.
Cheese's motion to compel arbitration and dismissed the
case without prejudice.
now appeals the dismissal of his complaint,  contending that the District Court erred
by (1) conducting a bench trial on the issue of
arbitrability; (2) concluding that P.J. Cheese had not waived
its right to arbitration; and (3) failing to proceed to the
trial on arbitrability in a timely manner. We affirm the
District Court's dismissal, and address each of these
arguments in turn.
1925, Congress enacted the FAA "[t]o overcome judicial
resistance to arbitration, " Buckeye Check Cashing,
Inc. v. Cardegna, 546 U.S. 440, 443, 126 S.Ct. 1204,
1207, 163 L.Ed.2d 1038 (2006), and to declare a
"'national policy favoring arbitration' of
claims that parties contract to settle in that manner."
Preston v. Ferrer, 552 U.S. 346, 353, 128 S.Ct. 978,
983, 169 L.Ed.2d 917 (2008) (quoting Southland Corp. v.
Keating, 465 U.S. 1, 10, 104 S.Ct. 852, 858, 79 L.Ed.2d
1 (1984). Three sections of the FAA play particularly
important roles in achieving that purpose. 9 U.S.C. §
2-the "primary substantive provision" of the FAA,
Moses H. Cone Mem'l Hosp. v. Mercury Constr.
Corp., 460 U.S. 1, 24, 103 S.Ct. 927, 94174 L.Ed.2d 765
(1983)-provides that arbitration agreements in contracts
"involving commerce" are "valid, irrevocable,
and enforceable." 9 U.S.C. § 3 directs courts to stay
their proceedings in any case raising a dispute on an issue
referable to arbitration. And 9 U.S.C. § 4
"authorizes a federal district court to issue an order
compelling arbitration if there has been a 'failure,
neglect, or refusal' to comply with [an] arbitration
agreement." Shearson/Am. Exp., Inc. v. McMahon,
482 U.S. 220, 226, 107 S.Ct. 2332, 2337, 96 L.Ed.2d 185
(1987) (quoting 9 U.S.C. § 4).
these provisions embody the "liberal federal policy
favoring arbitration agreements, " Caley v.
Gulfstream Aerospace Corp., 428 F.3d 1359, 1367 (11th
Cir. 2005) (citation and quotation marks omitted),
"doubts concerning the scope of arbitrable
issues should be resolved in favor of arbitration."
Bazemore v. Jefferson Capital Sys., LLC, 827 F.3d
1325, 1329 (11th Cir. 2016) (emphasis added). This
"presumption, " however, "does not apply to
disputes concerning whether an agreement to arbitrate has
been made." Id. (citation omitted).
as in this case, a party moves a district court to compel
arbitration under the FAA, the court must first determine
whether "the making of the agreement for arbitration or
the failure to comply therewith is . . . in issue." 9
U.S.C. § 4. If, under a "summary judgment-like
standard, " the district court concludes that there
"is no genuine dispute as to any material fact
concerning the formation of such an agreement, " it
"may conclude as a matter of law that [the] parties did
or did not enter into an arbitration agreement."
Bazemore, 827 F.3d at 1333 (citation and quotation
marks omitted). If, on the other hand, the making of the
agreement is in issue, "the court shall proceed
summarily to the trial thereof." 9 U.S.C. § 4.
As in a
traditional summary judgment motion, an examination of
substantive law determines which facts are material.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248,
106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The
"threshold question of whether an arbitration agreement
exists at all is 'simply a matter of contract.'"
Bazemore, 827 F.3d at 1329 (quoting First
Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 943, 115
S.Ct. 1920, 1924, 131 L.Ed.2d 985 (1995)). Thus, just as
"state law generally governs whether an enforceable
contract" exists, state law generally governs whether an
enforceable "agreement to arbitrate exists" as
well. Caley, 428 F.3d at 1368. To prove the
existence of a contract under Alabama law, the party seeking
to enforce the contract must prove by a preponderance of the
evidence: "an offer[, ] an acceptance, consideration,
and mutual assent to terms essential to the formation of a
contract." Shaffer v. Regions Fin. Corp., 29
So.3d 872, 880 (Ala. 2009).
case, the District Court applied this standard and concluded
that there was a disputed question of material fact over the
existence of an authentic arbitration agreement. In light of
this conclusion, it then properly determined that the Court
was required-under 9 U.S.C. § 4-to proceed summarily to
trial to resolve the disputed fact.
primary issue on appeal is whether the District Court erred
in holding a bench trial on the signature issue in
spite of Burch's general demand for a jury trial in his
complaint. We conclude that that the District Court did not
civil case, a right to trial by jury may arise either by the
Seventh Amendment to the U.S. Constitution or via a federal
statute. Curtis v. Loether, 415 U.S. 189, 191-92, 94
S.Ct. 1005, 1007, 39 L.Ed.2d 260 (1974). The Seventh
Amendment provides: "In suits at common law, where the
value in controversy shall exceed twenty dollars, the right
of trial by jury shall be preserved. . . ." As evidenced
by the Amendment's text, the Constitution does not a
"create" a right to a jury trial in civil cases;
instead it preserves the right in the federal courts as it
existed at common law in 1791, when the Amendment was
ratified. Waldrop v. S. Co. Servs., 24 F.3d 152, 156
(11th Cir. 1994). Thus, to determine whether a party has
constitutional right to a jury trial, a historical test is
applied. If the issue, in the
context in which it arises today, would have been heard at