          Case: 19-11760   Date Filed: 01/07/2020   Page: 1 of 17


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                            No. 19-11760
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 7:17-cv-01533-LSC

LINDSAY DAVIS,
BENJAMIN DAVIS,

                                                         Plaintiffs - Appellees,

                                 versus

J. MICHAEL WHITE,
ECO-PRESERVATION SERVICES L.L.C.,
SERMA HOLDINGS LLC,
AKETA MANAGEMENT GROUP,
KNOBLOCH INC,

                                                      Defendants - Appellants,

TOWN OF LAKE VIEW, THE, et al.,

                                                                    Defendants.

                      ________________________

                            No. 19-11761
                        Non-Argument Calendar
                      ________________________
          Case: 19-11760   Date Filed: 01/07/2020   Page: 2 of 17




                  D.C. Docket No. 7:17-cv-01534-LSC

NICOLE SLONE,
JONATHAN SLONE,

                                                         Plaintiffs - Appellees,

                                 versus

J. MICHAEL WHITE,
ECO-PRESERVATION SERVICES L.L.C.,
SERMA HOLDINGS LLC,
AKETA MANAGEMENT GROUP,
KNOBLOCH INC,

                                                      Defendants - Appellants,

TOWN OF LAKE VIEW, THE, et al.,

                                                                    Defendants.

                      ________________________

                            No. 19-11762
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 7:17-cv-01535-LSC

MONICA LAWRENCE,
JOHN LAWRENCE, JR.,

                                                         Plaintiffs - Appellees,

                                 versus

J. MICHAEL WHITE,
ECO-PRESERVATION SERVICES L.L.C.,
SERMA HOLDINGS LLC,

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AKETA MANAGEMENT GROUP,
KNOBLOCH INC,

                                                            Defendants - Appellants,

TOWN OF LAKE VIEW, THE, et al.,

                                                                          Defendants.

                           ________________________

                   Appeals from the United States District Court
                      for the Northern District of Alabama
                          ________________________

                                 (January 7, 2020)

Before WILSON, ROSENBAUM, and JILL PRYOR, Circuit Judges.

PER CURIAM:

      Plaintiffs-Appellees are three families living in the Lake View area of

Tuscaloosa County, Alabama.        Under agreements with the local government,

Defendant-Appellant J. Michael White owns and operates Lake View’s sanitary

sewer system through several private entities, which along with White, are the

appellants here (collectively, the “sewer company”). After receiving sewer bills in

excess of $5,000, and lacking any other recourse to resolve what they viewed as

excessive and unwarranted charges, the families filed separate lawsuits against the

sewer company and the local government, among others not relevant to this appeal,

alleging constitutional and state-law violations. Eighteen months into the litigation,

the sewer company filed motions to compel arbitration of the disputes in accordance

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with binding arbitration agreements.       The district court denied the motions,

concluding that the sewer company had waived its right to arbitrate. The sewer

company appealed, and the three appeals have been consolidated for review. After

careful consideration, we affirm.

                                          I.

      Because it is relevant to the issues on appeal, we recount the procedural

history of this case in some detail. On September 11, 2017, the three families,

represented by the same counsel, filed separate lawsuits against the sewer company

and the local government. Each complaint reflects similar allegations. According

to the complaints, the sewer company had the families’ water shut off for

delinquency—by the prior owners, in the Davises’ case—by placing a lock on the

property water line, charged the families substantial fees after falsely accusing them

of tampering with that lock, and then threatened them with criminal prosecution if

they did not pay. Further, the complaints alleged that the sewer company offered no

meaningful means to contest the charges and that the local government failed to

exercise any oversight.

      Based on these allegations, the families brought claims against the sewer

company for (1) procedural-due-process violations under 42 U.S.C. § 1983;

(2) conspiracy to commit § 1983 violations; (3) state-law trespass; (4) state-law

deprivation of property rights; (5) state-law private nuisance; (6) state-law outrage;


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(7) state-law unlawful or deceptive trade practices; and (8) violations of the Federal

Debt Collection Practices Act, 15 U.S.C. § 1692.

      On October 31, 2017, the sewer company filed motions to dismiss the

families’ complaints for failure to state a claim under Rules 8(a)(2) and 12(b)(6) of

the Federal Rules of Civil Procedure. Addressing each of the families’ claims, the

sewer company argued that the families failed to meet pleading standards and that

their allegations were insufficient to state any plausible claim to relief. One week

later, the sewer company moved to stay all deadlines, asserting that its motions to

dismiss would “resolve this case and obviate the defendants’ need to comply with

those deadlines.” On December 14, 2017, the families filed responses in opposition

to the motions to dismiss, and the sewer company replied on December 27, 2017.

      On February 15, 2018, the parties jointly submitted a report of their planning

meeting, pursuant to Rule 26(f), Fed. R. Civ. P. Consistent with that report, the

district court entered a scheduling order setting deadlines and rules for, among other

things, amendments to the pleadings, discovery, and dispositive motions. The order

set the matter for a bench trial to begin on July 15, 2019.

      On April 16, 2018, the deadline for amendment of the complaints, the families

filed amended complaints expanding on the complaints’ allegations and adding a

claim against the sewer company for unjust enrichment. The district court construed

the amended complaints as including implied motions to amend and then ordered


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the sewer company to show cause why the implied motions to amend should not be

granted. On May 24, 2018, the sewer company responded that the families’

proposed amendments were futile.

      Two months later, on July 30, 2018, the sewer company filed motions to strike

the families’ deposition notices scheduling the deposition of another defendant for

August 20, 2018, and to stay discovery pending the resolution of its motions to

dismiss. After the families responded in opposition, noting that the sewer company

had agreed that all discovery should be commenced in time to be completed by

January 2019, the district court denied without explanation the motions to strike.

      On September 21, 2018, the district court entered a 24-page opinion granting

the families’ implied motions to amend and concluding that their complaints, as

amended, stated plausible claims to relief. The court terminated the pending motions

to dismiss as moot and advised the sewer company “not to file any motion to dismiss

if the grounds for such a motion are addressed by this opinion.” The court then

ordered the sewer company to answer the amended complaints within ten days.

      Instead of answering the complaint, the sewer company filed appeals of the

district court’s September 21, 2018, decision. The sewer company claimed that

Ashcroft v. Iqbal, 556 U.S. 662 (2009), authorizes immediate appeal of an order

denying a motion to dismiss and that a failure to allow the interlocutory appeal




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“effectively denie[d] [it] the right to avoid expensive and time-consuming

discovery.”

      On November 27, 2018, this Court sua sponte dismissed the appeals for lack

of jurisdiction. We explained that the district court’s order, under well-established

precedent, was neither a final and appealable order nor subject to immediate review

under the “collateral order” doctrine. On December 17, 2018, the sewer company

moved for reconsideration of the dismissals, and the families responded. This Court

denied reconsideration on March 6, 2019.

      Meanwhile, on March 1, 2019, the families moved for a clerk’s entry of

default and for default judgment against the sewer company for failure to answer the

complaints, despite being repeatedly pressed by the families’ counsel to do so. On

March 7, 2019, the district court ordered the sewer company to show cause why

these motions should not be granted.

      That same day, the sewer company notified the families’ counsel for the first

time that it intended to submit the disputes to arbitration. One week later, the sewer

company filed responses to the order to show cause, claiming that it was not in

default because it was waiting for this Court to resolve its appeals. The sewer

company noted that it had “notified the Plaintiffs of [its] intention to invoke the

arbitration provision applicable between the parties.”




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      Then, on March 20, 2019, just over eighteen months from the filing of the

complaints, the sewer company filed motions to compel arbitration and to stay

proceedings pending arbitration. The sewer company asserted that the families were

bound by mandatory arbitration provisions in Utility Service Agreements that

governed the provision of sewer services to the families’ homes. According to the

sewer company, the arbitration provisions applied to “all claims” against them.

      The families responded that the sewer company had waived any right to

arbitrate by substantially invoking the litigation machinery prior to demanding

arbitration and by prejudicing the families. The families noted that the sewer

company was seeking arbitration only after receiving unfavorable outcomes on its

motions to dismiss, and that the sewer company’s counsel had “[a]ctively

participat[ed] in discovery including 9 of the 11 depositions taken, actively taking

the lead role deposing Plaintiffs in 6 of the 11 depositions.”

      After the sewer company replied, the district court denied the motions to

compel arbitration. The court concluded, as the families contended, that the sewer

company had waived its right to compel arbitration. The court found that the sewer

company had acted inconsistently by forgoing arbitration “until it became clear that

[it] would need to continue to litigate the claims in this forum.” The court also




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concluded that the families had been prejudiced by the sewer company’s conduct.

The sewer company now appeals.1

                                              II.

       We review de novo a district court’s denial of a motion to compel arbitration

on the ground that a party waived its right to arbitrate. Ivax Corp. v. B. Braun of

Am., Inc., 286 F.3d 1309, 1316 (11th Cir. 2002).

       Although federal law favors arbitration, a party can, by its conduct, waive its

right to arbitrate a dispute. Garcia v. Wachovia Corp., 699 F.3d 1273, 1277 (11th

Cir. 2012). Waiver occurs when, under the totality of the circumstances, “both: (1)

the party seeking arbitration substantially participates in litigation to a point

inconsistent with an intent to arbitrate; and (2) this participation results in prejudice

to the opposing party.” Johnson v. Keybank Nat’l Ass’n (In re Checking Account

Overdraft Litig.), 754 F.3d 1290, 1294 (11th Cir. 2014) (quotation marks omitted);

Ivax Corp., 286 F.3d at 1315. When evaluating prejudice, “we may consider the

length of delay in demanding arbitration and the expense incurred by that party from

participating in the litigation process.” S & H Contractors, Inc. v. A.J. Taft Coal

Co., Inc., 906 F.2d 1507, 1514 (11th Cir. 1990). The party arguing for waiver bears




       1
         To preserve the issue for further review, the sewer company maintains that the issue of
waiver is for the arbitrator, not the courts. As it acknowledges, however, we have held to the
contrary. E.g., Grigsby & Assocs., Inc. v. M. Sec. Inv., 664 F.3d 1350, 1354 (11th Cir. 2011)
(“[Q]uestions of waiver based on a party’s litigation conduct are for the courts to resolve.”).
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a heavy burden of proof in light of the federal policy favoring arbitration. Gutierrez

v. Wells Fargo Bank, NA, 889 F.3d 1230, 1236 (11th Cir. 2018).

      “[T]he purpose of the waiver doctrine is to prevent litigants from abusing the

judicial process.” Id. As we explained in Gutierrez,

      Acting in a manner inconsistent with one’s arbitration rights and then
      changing course mid-journey smacks of outcome-oriented
      gamesmanship played on the court and the opposing party’s dime. The
      judicial system was not designed to accommodate a defendant who
      elects to forego arbitration when it believes that the outcome in
      litigation will be favorable to it, proceeds with extensive discovery and
      court proceedings, and then suddenly changes course and pursues
      arbitration when its prospects of victory in litigation dim. Allowing
      such conduct would ignore the very purpose of alternative dispute
      resolution: saving the parties’ time and money.

Id. Whether a party gave “fair notice” of its intent to exercise its arbitration rights

at a relatively early stage of litigation “is a primary factor in considering whether a

party has acted consistently with its arbitration rights.” Id. at 1236–37. “If the court

and the opposing party have such notice at an early stage in litigation, they can

manage the litigation with this contingency in mind.” Id. at 1236.

      The sewer company maintains that the families have not met the high burden

of establishing that it waived its right to arbitrate. The sewer company claims that

it went to great lengths to avoid the litigation machinery, seeking a stay of discovery

pending the resolution of its motions to dismiss and participated in only depositions

initiated by others. Further, it asserts that it never “sought or received a ruling on

the underlying merits of the Plaintiffs’ claims,” and that merely testing the
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sufficiency of a complaint through a motion to dismiss does not waive the right to

arbitrate. Finally, it contends that the families have not shown prejudice.

                                                A.

       We affirm the district court. First, we agree that the sewer company acted

inconsistently with its right to arbitrate. The sewer company filed motions to dismiss

seeking dismissal for failure to state a claim upon which relief could be granted and

then opposed the families’ implied motions to amend the complaints as futile. When

the sewer company lost those motions and was ordered to answer the complaints, it

instead filed frivolous appeals, asking this Court to overturn what was plainly not a

final or immediately appealable ruling. Only when it became clear that the sewer

company could not have the three lawsuits dismissed did it invoke arbitration. As

the district court stated, this conduct smacks of outcome-oriented “gamesmanship”

inconsistent with the right to arbitration.

       The sewer company’s arguments in response are unconvincing. The sewer

company claims that it never sought a ruling on the merits and that a party may file

a motion to dismiss without waiving the right to arbitrate. We agree to the extent

that “[n]ot every motion to dismiss is inconsistent with the right to arbitration.”2



       2
         Contrary to the sewer company’s assertion, this Court has never held that a party may file
a motion to dismiss without waiving the right to arbitration. In Krinsk v. SunTrust Banks, Inc., we
simply quoted a district court ruling that “a defendant may test the sufficiency of a complaint
without waiving [the defendant’s] right to arbitration,” but we resolved the appeal on other ground
and did not express or imply any approval of that ruling. 654 F.3d 1194, 1201 (11th Cir. 2011).
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Hooper v. Advance Am., Cash Advance Ctrs. Of Mo., Inc., 589 F.3d 917, 922 (8th

Cir. 2009). Motions to dismiss may not be inconsistent with an agreement to

arbitrate where the party seeks dismissal on non-merits grounds, Martin v. Yasuda,

829 F.3d 1118, 1125 (9th Cir. 2016) (“[A]lthough filing a motion to dismiss that

does not address the merits of the case is not sufficient to constitute an inconsistent

act, seeking a decision on the merits of an issue may satisfy this element.”), where

the party seeks dismissal of a frivolous claim, Khan v. Parson Global Servs., Ltd.,

521 F.3d 421, 427 (D.C. Cir. 2008), or where the motion seeks to separate arbitrable

from non-arbitrable claims, Sweater Bee by Banff, Ltd. v. Manhattan Indus., 754

F.2d 457, 463 (2d Cir. 1985) (“Plainly, the portions of the motion [to dismiss]

addressed to nonarbitrable claims do not constitute a waiver.”).

      But here, the sewer company’s motions to dismiss, as well as its arguments

that amendment of the complaints would be futile and its pursuit of appeals with this

Court, sought to resolve the parties’ entire dispute on the merits. See St. Mary’s

Med. Ctr. of Evansville, Inc. v. Disco Aluminum Prods. Co., Inc., 969 F.2d 585, 589

(7th Cir. 1992) (“Submitting a case to the district court for decision is not consistent

with a desire to arbitrate. A party may not normally submit a claim for resolution in

one forum and then, when it is disappointed with the result in that forum, seek

another forum.”). The sewer company sought dismissal of all of the families’ claims

for failure to state a claim under Rule 12(b)(6). And “[t]he dismissal for failure to


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state a claim under Federal Rule of Civil Procedure 12(b)(6) is a ‘judgment on the

merits’” for purposes of res judicata. N.A.A.C.P. v. Hunt, 891 F.2d 1555, 1560 (11th

Cir. 1990) (quoting Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 399 n.3

(1981)). In other words, had the sewer company’s motions succeeded, the families

would have been prohibited from pursuing their claims going forward. Cf. Kelly v.

Merrill Lynch, Pierce, Fenner & Smith, Inc., 985 F.2d 1067, 1069 (11th Cir. 1993)

(holding that the district court properly refused to compel arbitration of claims that

were barred by res judicata). Under the circumstances, the sewer company’s pursuit

of its motions to dismiss both below and on appeal represented a substantial

invocation of the litigation process. 3 See Hooper, 589 F.3d at 921–22.

       The sewer company’s claim that it filed its motions to dismiss on “nonarbitral

issues,” as in Sweater Bee, is not supported by the record. In Sweater Bee, a majority

of the claims in the plaintiffs’ complaint were non-arbitrable antitrust claims. 754

F.2d at 463. Moreover, the plaintiffs’ complaint was “intricate,” “setting forth

numerous claims outside the scope of, though partially related to, the arbitrable

claims.” Id. In those circumstances, according to the Second Circuit, filing a motion

to dismiss did not amount to waiver. See id. (“Plainly, the portions of the motion

addressed to nonarbitrable claims do not constitute a waiver.”).


       3
         We do not attribute much significance to the sewer company’s participation in discovery,
as it sought to stay all discovery pending the resolution of its motion to dismiss, and the facts
regarding discovery are not well developed.
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      The sewer company, however, makes no claim that any of the families’ claims

were non-arbitrable. In fact, it said just the opposite in its motions to compel

arbitration, advising the district court that the arbitration provisions applied to “all

claims against them” by the families. Nor has the sewer company suggested that the

motions to dismiss were necessary to resolve some ambiguity about whether the

claims were arbitrable, or that the eighteen-month delay in invoking the arbitration

agreements was due to the fact that the sewer company was unaware of or unsure

about whether those agreements applied.

      Instead, the sewer company sought to arbitrate the exact same claims that it

had previously asked the district court to resolve fully and finally. This shows that

the sewer company “wanted to see how the case was going in federal district court

before deciding whether it would be better off there or in arbitration.” Hooper, 589

F.3d at 922 (quotation marks omitted). That conduct is not consistent with the sewer

company’s provision of “fair notice” of its intent to exercise its arbitration rights at

an early stage in litigation. See Gutierrez, 889 F.3d at 1236–37. Rather, the sewer

company “wanted to play heads I win, tails you lose, which is the worst possible

reason for failing to move for arbitration sooner than it did.” Hooper, 589 F.3d at

922 (quotation marks omitted). Accordingly, we conclude that the sewer company

acted inconsistently with its arbitration rights.

                                           B.


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      Second, the district court did not err in concluding that the families had been

prejudiced by the sewer company’s conduct. “Prejudice exists when the party

opposing arbitration undergo[es] the types of litigation expenses that arbitration was

designed to alleviate.” In re Checking Account Overdraft Litig., 754 F.3d at 1294

(quotation marks omitted).

      Rather than pressing the arbitration provisions from the outset of the case—

and the sewer company has offered no reason why it was unable to do so—the sewer

company filed a motion to dismiss, opposed amendment of the complaint on grounds

of futility, and then filed an interlocutory appeal of the denial of its motion to

dismiss. In doing so, the sewer company forced the families “to spend resources

opposing the original motion and contesting its appeal—precisely the kind of

litigation costs that the [arbitration] provision intended to alleviate.” Id. at 1296.

The prejudice here may not have been extensive, but the sewer company

nevertheless “slow[ed] the process and magnif[ied] its costs,” undermining “the

purposes of the Federal Arbitration Act’s liberal policy favoring arbitration

agreements.” Id. (quotation marks omitted). The sewer company had ample

opportunity to demand arbitration at an earlier point in the proceedings, and had it

done so, the families and the district court could have “managed the litigation with

this contingency in mind.” Gutierrez, 889 F.3d at 1236. Instead, the sewer company

chose to wait to raise arbitration until litigating in federal court proved unfavorable.


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Under the totality of the circumstances, this is sufficient to show prejudice to the

families for purposes of waiver. See Hooper, 589 F.3d at 923–24 (finding prejudice

on similar facts).

                                         III.

      The families have filed a motion for damages and costs, pursuant to Rule 38,

Fed. R. App. P., against the sewer company for pursuing a frivolous appeal. Rule

38 provides that “[i]f a court of appeals determines that an appeal is frivolous, it

may, after a separately filed motion or notice from the court and reasonable

opportunity to respond, award just damages and single or double costs to the

appellee.” An award of damages and costs under Rule 38 is appropriate against an

appellant who raises “clearly frivolous claims in the face of established law and clear

facts.” Parker v. Am. Traffic Solutions, Inc., 835 F.3d 1363, 1371 (11th Cir. 2016).

“[A] claim is clearly frivolous if it is utterly devoid of merit.” Id. (quotation marks

omitted).

      Although we have concluded that the district court properly found that the

sewer company had waived its right to arbitration, the sewer company’s arguments

were not meritless. Waiver is a fact-specific determination, there is no binding

precedent directly on point, and the sewer company cited relevant persuasive

authority that supported its position. Even though we were not ultimately persuaded

by the sewer company’s arguments, its position was not frivolous, particularly given


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the federal policy favoring arbitration. Accordingly, we deny the families’ request

for sanctions under Rule 38.

                                         IV.

      For the foregoing reasons, the families have shown that the sewer company

knew of its right to arbitration, acted inconsistently with that right, and prejudiced

them by their inconsistent actions. Accordingly, we agree with the district court that

the sewer company waived its right to arbitration, and we affirm the denial of the

sewer company’s motions to compel arbitration. We deny the motion for sanctions

under Rule 38.

      AFFIRMED.




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