                                IN THE
            ARIZONA COURT OF APPEALS
                             DIVISION ONE


                   SECURITY ALARM FINANCING
                        ENTERPRISES, L.P.,
                         Plaintiff/Appellee,

                                    v.

                          AMY FULLER, et al.
                          Defendants/Appellants.

                          No. 1 CA-CV 16-0255
                           FILED 7-6-2017


          Appeal from the Superior Court in Maricopa County
                         No. CV2015-007680
            The Honorable Christopher T. Whitten, Judge

           JURISDICTION ACCEPTED; RELIEF GRANTED


                               COUNSEL

Baskin, Richards, PLC, Phoenix
By William A. Richards, Nicole C. Davis
Counsel for Plaintiff/Appellee

Limon-Wynn Law, PLLC, Tempe
By Monica A. Limon-Wynn
Counsel for Defendants/Appellants
                        SECURITY v. FULLER, et al.
                           Opinion of the Court


                                 OPINION

Presiding Judge Diane M. Johnsen delivered the opinion of the Court, in
which Judge Patricia K. Norris and Judge Jennifer B. Campbell joined.


J O H N S E N, Judge:

¶1            The superior court denied a motion to dismiss in favor of
arbitration under the Federal Arbitration Act, holding the moving parties
waived their right to compel arbitration by failing to raise it as an
affirmative defense in their answer. Exercising our discretion to accept
special action review and applying federal law, we hold there was no
waiver and reverse the order denying the motion to dismiss.

             FACTS AND PROCEDURAL BACKGROUND

¶2            Security Alarm Financing Enterprises, L.P. filed a complaint
alleging contract and tort claims against several former employees and their
new employer. The complaint alleged breach of contract, misappropriation
of trade secrets, unfair competition and tortious interference with business
expectancies. In answering the complaint, Amy Fuller, Molly Griffis, and
Carlee and Darryl Reeves (collectively "Appellants") did not raise any
affirmative defense concerning arbitration.

¶3             Security acknowledges that 29 days after Appellants
answered the complaint, their counsel contacted Security to raise the
existence of arbitration agreements Appellants each had signed when they
started work with Security. (The arbitration agreements were stand-alone
contracts separate from the confidentiality agreements on which Security's
contract claims were based.) Each of the identical three-page arbitration
agreements specified that it "is governed by the Federal Arbitration Act, 9
U.S.C. § 1 et seq.," and that it would apply "to any dispute arising out of or
related to" the employee's "employment with . . . [Security] . . . or
termination of employment." Appellants asked whether Security would
agree to arbitration; a month later, Security responded that it would not
agree. Four days after receiving Security's response, Appellants moved to
dismiss the complaint and to compel arbitration. The superior court denied
the motion, finding Appellants waived their right to compel arbitration by
failing to cite the arbitration agreement as an affirmative defense in their
answer. Appellants then appealed.




                                      2
                        SECURITY v. FULLER, et al.
                           Opinion of the Court

                               DISCUSSION

A.     Jurisdiction.

¶4            This court derives its jurisdiction wholly from statute. See
Garza v. Swift Transp. Co., 222 Ariz. 281, 283, ¶ 12 (2009). Generally
speaking, an order denying a motion to dismiss is not reviewable by appeal
because it is not a final judgment. See Brumett v. MGA Home Healthcare,
L.L.C., 240 Ariz. 420, 426, ¶ 4 (App. 2016).

¶5             Appellants, however, suggest Arizona Revised Statutes
("A.R.S.") section 12-2101.01(A)(1) (2017) grants this court jurisdiction over
the denial of their motion to dismiss and to compel arbitration.1 That
statute grants the court of appeals jurisdiction to hear an appeal from "[a]n
order denying an application to compel arbitration made under § 12-1502
or 12-3007." But Appellants did not move to compel arbitration under
either A.R.S. § 12-1502 (2017) (adopted from the Uniform Arbitration Act)
or A.R.S. § 12-3007 (2017) (adopted from the Revised Uniform Arbitration
Act). Indeed, Arizona's versions of the Uniform Arbitration Act and the
Revised Uniform Arbitration Act expressly do not apply to arbitration
agreements, such as the one at issue here, between an employer and its
employee. A.R.S. §§ 12-1517 (2017), -3003(B)(1) (2017). Instead, Appellants
moved to compel arbitration under the Federal Arbitration Act ("FAA"), 9
U.S.C. §§ 1-16 (2017), which the arbitration agreement expressly adopted.
Because Appellants did not move to compel arbitration under A.R.S. §§ 12-
1502 or -3007, and because no other statute grants this court appellate
jurisdiction, we lack jurisdiction to consider Appellants' appeal from the
order denying their motion.

¶6            Alternatively, Appellants ask us to treat their appeal as a
petition for special action. In our discretion and pursuant to A.R.S. § 12-
120.21(A)(4) (2017), we may exercise special action jurisdiction "under
appropriate circumstances." Phillips v. Garcia, 237 Ariz. 407, 410, ¶ 6 (App.
2015). Special action jurisdiction is proper when a party has no "equally
plain, speedy, and adequate remedy by appeal," Arizona Rule of Procedure
for Special Actions 1(a), and in cases "involving a matter of first impression,
statewide significance, or pure questions of law," State ex rel. Pennartz v.
Olcavage, 200 Ariz. 582, 585, ¶ 8 (App. 2001).




1     Absent material revision after the relevant date, we cite a statute's
current version.


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                        SECURITY v. FULLER, et al.
                           Opinion of the Court

¶7             Appellants have no adequate remedy by appeal from the
order denying their motion to compel arbitration. See Yarbrough v. Montoya-
Paez, 214 Ariz. 1, 2 (App. 2006) (accepting special action jurisdiction of order
transferring venue). Further, the primary issue presented here is a question
of law, namely, what a party must show to establish that an adversary has
waived a right to arbitration under the FAA. As presented, this dispute
"require[s] neither factual review nor interpretation." Orme School v. Reeves,
166 Ariz. 301, 303 (1990). It likewise is an issue of first impression in this
state. See State ex rel. Thomas v. Duncan, 216 Ariz. 260, 262, ¶ 5 (App. 2007).

¶8            Accordingly, we exercise our discretion to accept special
action jurisdiction to determine whether the superior court erred by
denying Appellants' motion to dismiss and to compel arbitration.

B.     Denial of the Motion to Compel Arbitration.

¶9            We review the denial of a motion to compel arbitration de
novo. Sun Valley Ranch 308 Ltd. P'ship v. Robson, 231 Ariz. 287, 291, ¶ 9 (App.
2012). Further, whether conduct amounts to waiver of the right to arbitrate
is a question of law we review de novo. In re Estate of Cortez, 226 Ariz. 207,
210, ¶ 3 (App. 2010).

¶10            The parties disagree about whether Arizona law or federal
law governs waiver of a right to arbitration under the FAA. Depending on
the circumstances of a particular case, which law applies may make a
difference because the legal standards governing waiver may not be
precisely the same. In arguing that Appellants waived arbitration by failing
to plead it in their answer, Security relies on our decision in Cortez as
"controlling." See 226 Ariz. at 211, ¶ 6 ("An assertion that arbitration is
mandatory is an affirmative defense to a complaint. It is well established
that any defense not set forth in an answer or pre-answer motion to dismiss
is waived." (Citation omitted.)). Security argues that under Arizona law,
Appellants' failure to plead arbitration was sufficient by itself to constitute
waiver. By contrast, under the FAA, conduct inconsistent with an intent to
arbitrate by itself is not sufficient to establish waiver; at a minimum, the
court also must consider whether the party opposing arbitration has
suffered prejudice by the other party's inconsistent acts. Compare Richards
v. Ernst & Young, LLP, 744 F.3d 1072, 1074 (9th Cir. 2013) (waiver requires
showing of prejudice), with Zuckerman Spaeder, LLP v. Auffenberg, 646 F.3d
919, 922 (D.C. Cir. 2011) (potential prejudice is among circumstances to be
considered).




                                       4
                         SECURITY v. FULLER, et al.
                            Opinion of the Court

¶11           Two respective provisions of the FAA guide analysis of
challenges to a party's right to compel arbitration. First, under 9 U.S.C. § 2,
a written arbitration agreement "shall be valid, irrevocable, and
enforceable, save upon such grounds as exist at law or in equity for the
revocation of any contract." The cases make clear that the inquiry under §
2 of whether an arbitration agreement is "valid, irrevocable, and
enforceable" is governed by state law, i.e., the law pertaining to "revocation
of any contract." See, e.g., Doctor's Assocs., Inc. v. Casarotto, 517 U.S. 681, 686
(1996) (state law governs general issues concerning the validity,
revocability and enforceability of contracts); Perry v. Thomas, 482 U.S. 483,
492, n.9 (1987); Hudson v. Citibank (S.D.) NA, 387 P.3d 42, 47 (Alaska 2016).
Thus, when an Arizona court determines the validity or enforceability of an
arbitration agreement under the FAA, it applies Arizona common law
pertaining to contracts. See, e.g., WB, The Bldg. Co. v. El Destino, LP, 227 Ariz.
302, 308, ¶ 14 (App. 2011).

¶12           But the issue here is not whether Arizona contract-law
principles invalidate the arbitration agreements Security asked Appellants
to sign. The issue is whether Appellants waived their right to enforce those
agreements. That issue is resolved not under state-law principles pursuant
to § 2 of the FAA, but under federal-law principles dictated by the other
provision in the FAA applying to challenges to arbitration, 9 U.S.C. § 3.
Under § 3:

       If any suit or proceeding be brought in any of the courts of the
       United States upon any issue referable to arbitration under an
       agreement in writing for such arbitration, the court in which
       such suit is pending, upon being satisfied that the issue
       involved in such suit or proceeding is referable to arbitration
       under such an agreement, shall on application of one of the
       parties stay the trial of the action until such arbitration has
       been had in accordance with the terms of the agreement,
       providing the applicant for the stay is not in default in
       proceeding with such arbitration.

¶13           Pursuant to 9 U.S.C. § 3, a state court must order arbitration
so long as the moving party "is not in default in proceeding with such
arbitration." This provision, as a matter of federal law, governs the
determination of whether a party has "default[ed]" by waiving the right to
seek arbitration under an otherwise enforceable agreement. See Ehleiter v.
Grapetree Shores, Inc., 482 F.3d 207, 217 (3d Cir. 2007); Marie v. Allied Home
Mortg. Corp., 402 F.3d 1, 13 (1st Cir. 2005) (citing cases); S & H Contractors,
Inc. v. A.J. Taft Coal Co., 906 F.2d 1507, 1514 (11th Cir. 1990) ("Our


                                        5
                        SECURITY v. FULLER, et al.
                           Opinion of the Court

determination of whether S & H waived its right to arbitration, as opposed
to whether the contract is void under Alabama law, is controlled solely by
federal law."); Cornell & Co. v. Barber & Ross Co., 360 F.2d 512, 513 (D.C. Cir.
1966) ("Once having waived the right to arbitrate, that party is necessarily
'in default in proceeding with such arbitration.'"); Hudson, 387 P.3d at 47; see
also Barber & Ross Co. v. Cornell & Co., 242 F. Supp. 825, 826 (D.D.C. 1965)
(moving party was "in default" because "the litigation machinery had been
substantially invoked . . . by the time . . . an intention to arbitrate was
communicated"). In the face of these authorities, Security cites no case
holding that waiver of a right to arbitrate under the FAA is governed by
state-law principles under § 2 of the FAA rather than by federal-law
principles under § 3.2

¶14            Accordingly, turning to the federal law of waiver under the
FAA, the Ninth Circuit Court of Appeals has held that waiver of a right to
arbitration under 9 U.S.C. § 3 requires a showing of "(1) knowledge of an
existing right to compel arbitration; (2) acts inconsistent with that existing
right; and (3) prejudice to the party opposing arbitration resulting from
such inconsistent acts." Richards, 744 F.3d at 1074. Many other circuit courts
impose the same requirements. See, e.g., Shy v. Navistar Int'l Corp., 781 F.3d
820, 827-28 (6th Cir. 2015) ("Both inconsistency and actual prejudice are
required."); In re Checking Account Overdraft Litig., 754 F.3d 1290, 1294 (11th
Cir. 2014); Wheeling Hosp., Inc. v. Health Plan of the Upper Ohio Valley, Inc.,
683 F.3d 577, 586-87 (4th Cir. 2012); Ehleiter, 482 F.3d at 222 ("[P]rejudice is
the touchstone for determining whether the right to arbitrate has been

2       Because state law does not apply, we need not decide whether, as
Security argues, Cortez and Arizona law require denial of a motion to
compel arbitration brought by a party that has answered the complaint
without reserving the right to arbitrate. We note, however, that evidence
in Cortez established far more than a mere failure to plead arbitration as an
affirmative defense; the defendant there also "participated substantially in
the litigation and thereby exhibited additional conduct inconsistent with
enforcing the [arbitration] agreement." 226 Ariz. at 211, ¶ 6; see City of
Phoenix v. Fields, 219 Ariz. 568, 575, ¶ 30, n.4 (2009) (party may waive
arbitration by "participat[ing] substantially in litigation without promptly
seeking an order from the court compelling arbitration"). Further, Security
incorrectly argues that application of 9 U.S.C. § 3 to this case "illogically
presumes in the first instance" that Cortez "somehow adopted a state waiver
standard that would violate requirements of the FAA." The FAA was not
at issue in Cortez, and our decision in that case did not mention the federal
statute.



                                       6
                        SECURITY v. FULLER, et al.
                           Opinion of the Court

waived."); Seguros Banvenez, S.A. v. S/S Oliver Drescher, 761 F.2d 855, 862 (2d
Cir. 1985). Other courts have held that while prejudice is not required, it is
a factor to be considered in determining whether waiver has occurred. See,
e.g., Zuckerman Spaeder, 646 F.3d at 922 (potential prejudice is among
circumstances to be considered); St. Mary's Med. Ctr. of Evansville, Inc. v.
Disco Aluminum Prods. Co., Inc., 969 F.2d 585, 590 (7th Cir. 1992) ("If
prejudice is relevant, even if not dispositive, the district court should
consider it just as it should consider any other relevant factor."); Hudson,
387 P.3d at 47-48.

¶15           In interpreting a federal statute, in the absence of guidance by
the United States Supreme Court, Arizona courts will look first to a "clear
rule" issued by the Ninth Circuit Court of Appeals if that rule appears just.
Weatherford ex rel. Michael L. v. State, 206 Ariz. 529, 532-33, ¶¶ 8-9 (2003).
When other courts are divided on an issue of federal substantive law,
following Ninth Circuit precedent "furthers federal-state court
relationships" and promotes "predictability and stability of the law." Id. at
533, ¶ 9.

¶16            On this question, we adopt the Ninth Circuit rule for the
additional reason that it has the benefit of clarity and certainty. As
interpreted by the Ninth Circuit, waiver under 9 U.S.C. § 3 requires proof
that the party seeking arbitration knew of an "existing right to compel
arbitration," it nevertheless committed "acts inconsistent with that existing
right," and those inconsistent acts caused prejudice to the party opposing
arbitration. Richards, 744 F.3d at 1074. In applying this standard, we keep
in mind that "any doubts concerning the scope of arbitrable issues should
be resolved in favor of arbitration, whether the problem at hand is the
construction of the contract language itself or an allegation of waiver, delay,
or a like defense to arbitrability." Moses H. Cone Mem'l Hosp. v. Mercury
Constr. Corp., 460 U.S. 1, 24-25 (1983).

¶17           Applying 9 U.S.C. § 3 to the facts of this case, we conclude
Appellants did not waive their right to arbitration of Security's claims
against them. To be sure, Appellants were aware of the arbitration
agreement, at least constructively, and they undeniably did not raise
arbitration as an affirmative defense in their answer. But they contacted
Security to commence the arbitration process within a month of answering
the complaint. Most significantly, Security has not shown it was prejudiced
by Appellants' delay.

¶18          In support of its argument to the contrary, Security contends
it went to the trouble of preparing its initial disclosure statement under


                                      7
                        SECURITY v. FULLER, et al.
                           Opinion of the Court

Arizona Rule of Civil Procedure 26.1 before the court ruled on Appellants'
motion to dismiss. But Security's complaint against Appellants also named
other defendants with which Security has no arbitration agreements.
Having chosen to join all the defendants in a single action, Security accepted
the possibility that its claims would have to proceed on dual tracks, one
through the superior court and the other through arbitration. Under both
state and federal principles, in these circumstances, enforcement of parties'
rights "requires piecemeal resolution when necessary to give effect to an
arbitration agreement." Moses H. Cone, 460 U.S. at 20; Forest City Dillon, Inc.
v. Superior Court, 138 Ariz. 410, 412 (App. 1984). Accordingly, Appellants'
failure to cite the arbitration agreement in their answer did not compel
Security to prepare a disclosure statement in support of its claims; Security
was obligated to prepare that disclosure for the other defendants regardless
of any purported waiver by Appellants.

¶19            Nor did Appellants unfairly benefit by receiving a copy of the
disclosure statement Security provided to the other defendants. The
arbitration agreements Appellants signed at Security's request expressly
grant the parties "the right to conduct adequate civil discovery." Security
further argues it suffered prejudice because Appellants twice asked for
extensions of time to respond to the complaint, but it does not state how the
delay caused injury to the company. Moreover, the delay at issue here is
the 29 days after answering the complaint it took Appellants to raise the
arbitration agreement, not any delay before they filed their answer. For the
same reasons, Security's contention that it was prejudiced by its pre-
litigation efforts to "deliver[] cease and desist letters" to Appellants and in
"framing its litigation strategy" is unfounded.

¶20           In sum, Security makes no showing that it was prejudiced by
Appellants' failure to cite the arbitration agreement in their answer or by
the subsequent 29-day delay before Appellants first raised the issue of
arbitration. Accordingly, the superior court erred by denying Appellants'
motion to compel arbitration.




                                      8
                      SECURITY v. FULLER, et al.
                         Opinion of the Court

                             CONCLUSION

¶21           Accepting special action jurisdiction, we grant relief by
reversing the superior court's order denying Appellants' motion to dismiss
and to compel arbitration.




                          AMY M. WOOD • Clerk of the Court
                          FILED: AA




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