                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 05-1984



CHOICE HOTELS INTERNATIONAL, INCORPORATED, a
Delaware Corporation,

                                              Plaintiff - Appellee,

          versus


PIUS RAJNIKANT PATEL,

                                             Defendant - Appellant,

          and


P&D INTERNATIONAL INVESTMENT,     INCORPORATED;
DINESHKUMAR PATEL,

                                                         Defendants.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District Judge.
(CA-04-2752-8-AW)


Submitted:   April 11, 2007                  Decided:   June 7, 2007


Before MOTZ, KING, and GREGORY, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Onkar N. Sharma, SHARMA LAW GROUP, Silver Spring, Maryland, for
Appellant.   Kerry S. McGeever, Silver Spring, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

          Pius Patel1 appeals from the district court’s order

denying his motion to stay the action in favor of arbitration

(“August 2005 order”), pursuant to 9 U.S.C. § 3 (2000), in this

action initiated by Choice Hotels International, Inc. (“Choice”).

For the reasons stated below, we vacate this order and remand the

case to the district court for further proceedings.

          Patel and Choice entered into a franchise agreement for

the operation of a Comfort Inn hotel in Columbia, South Carolina.

Choice claimed that Patel defaulted on various fees and failed to

cease displaying Choice’s trademarks after Choice sent notice of

termination, in violation of the franchise agreement.            Choice

initiated this action in district court, raising several trademark-

related claims and alleging breach of contract.

          Patel moved to dismiss the action due to Choice’s failure

to   submit   the   controversy   to   arbitration   pursuant   to   the

arbitration clause2 in the franchise agreement.        Simultaneously,


     1
      Pius Patel was one of three named defendants in district
court. The district court entered a default judgment against the
other two defendants, P&D International Investment, Inc., and
Dineshkumar Patel. Only Pius Patel has appealed from the order at
issue.
     2
      The arbitration clause provided that claims would “be sent to
final and binding arbitration before either the American
Arbitration Association or J.A.M.S./Endispute in accordance with
the Commercial Arbitration Rules of the American Arbitration
Association, except to the extent that those rules may be
interpreted to require [Choice] to produce documents or
information.” Further, the arbitration clause provided that the

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however,      Patel    assailed   the    arbitration          clause,   claiming   it

violated South Carolina law, insulated Choice from discovery, and

unfairly burdened him by requiring proceedings to be held in

Maryland.        Nevertheless,      Patel     took      the    position   that     the

arbitration clause “was, at least initially, enforceable.”                    Patel

contended he should present his arguments regarding the arbitration

clause to the arbitrator in the first instance.3

              Although Patel styled his pleading as a motion to dismiss

for failure to submit the case to arbitration, the district court

found it could not “determine that the parties entered into a valid

arbitration agreement and that the dispute at hand falls within the

scope    of   the     agreement.”       The     court    denied    Patel’s   motion

(“November 2004 order”), and Patel did not appeal from that denial.


arbitrator would “apply the substantive laws of Maryland, without
reference to its conflict of laws provision,” and arbitration
proceedings would “be conducted at [Choice’s] headquarters office
in Maryland.”     The three types of claims excepted from the
arbitration clause were claims against Patel for indemnification,
actions for collections of money owed to Choice under the franchise
agreement, and actions seeking to enjoin Patel from using Choice’s
trademarks.
     3
      Patel analogized his case to Vimar Seguros y Reaseguros,
S.A. v. M/V Sky Reefer, 515 U.S. 528, 539-41 (1995), and PacifiCare
Health Systems, Inc. v. Book, 538 U.S. 401 (2003). In PacifiCare,
which relied heavily on Vimar, the Supreme Court declined to
address whether the parties’ arbitration agreements would prevent
an arbitrator from awarding treble damages under an applicable
federal statute. Id. at 406-07. Since the Court did not know how
the arbitrator would evaluate the issue, the questions of whether
the issue rendered the agreements unenforceable and whether it was
for courts or arbitrators to decide enforceability in the first
instance were “unusually abstract.” Id. at 407. We express no
opinion concerning the application of these cases to Patel’s case.

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              Seven    months   later,     Patel    filed    a     similar       motion

requesting      the     district   court    stay    the     case       in    favor   of

arbitration.        In this motion, Patel stated on three occasions that

he would seek to present his arguments to the arbitrator in the

first instance. Choice opposed the motion, contending the district

court’s denial of Patel’s prior motion constituted the law of the

case.      The district court found Patel’s motion “appear[ed] to be

merely a renewal of arguments set forth” in his prior motion to

dismiss.      In August 2005, the court denied Patel’s motion for a

stay pending arbitration, and Patel appealed from this denial.

              This court reviews de novo the district court’s denial of

Patel’s motion to stay the case for arbitration.                   See Johnson v.

Circuit City Stores, 148 F.3d 373, 377 (4th Cir. 1998).                        Pursuant

to Glass v. Kidder, Peabody & Co., Inc., 114 F.3d 446, 453 (4th

Cir.       1997),     the   district     court     conducted       a        substantive

arbitrability inquiry in its November 2004 order, engaging in a

limited review to ensure that a valid agreement to arbitrate

existed and that the specific disputes fell within the substantive

scope of that agreement.        The district court found it was unable to

determine if Patel, who assailed the arbitration clause and raised

substantive defenses in his motions, sought “rigorous enforcement”

of the arbitration clause.4            See Dean Witter Reynolds, Inc. v.


       4
      The district court’s phrasing is taken from Dean Witter
Reynolds, Inc. v. Byrd, 470 U.S. 213, 221 (1985) (“The preeminent
concern of Congress in passing the [Federal Arbitration] Act was to

                                       - 5 -
Byrd, 470 U.S. 213, 221 (1985).         Although it acknowledged the

“liberal policy favoring arbitration agreements,” Moses H. Cone

Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24 (1983), the

district court stated that it could not conclude whether the

dispute was arbitrable.     It made the same determination in its

August 2005 order.

            As Choice notes, Patel failed to appeal the November 2004

order, which was immediately appealable.     See 9 U.S.C. § 16(a)(1)

(2000).    Therefore, according to Choice, the November 2004 order

became final; Choice argues Patel is bound by the district court’s

November 2004 finding concerning arbitrability as the law of the

case.     We disagree.   The law of the case doctrine, “a rule of

practice, based upon sound policy that when an issue is once

litigated and decided, that should be the end of the matter,”

United States v. United States Smelter Refining & Min. Co., 339

U.S. 186 (1950), is inapplicable here. The November 2004 order was

“appealable    because   Congress,   notwithstanding   [the   order’s]

interlocutory character, had made it appealable.”        Id. at 199.

Patel could have appealed the order, “but [he was] not bound to,”


enforce private agreements into which parties had entered, and that
concern requires that we rigorously enforce agreements to arbitrate
. . . .”). This court has also employed the phrase. See Glass v.
Kidder Peabody & Co., Inc., 114 F.3d 446, 451 (4th Cir. 1997)
(“Thus, the Act’s enactment signaled a sharp and complete shift
from an attitude of inveterate hostility toward arbitration
agreements to one strongly favoring arbitration and encouraging the
rigorous enforcement of all arbitration agreements.”).


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as “it requires a final judgment to sustain the application of the

rule of the law of the case just as it does for the kindred rule of

res judicata.”     Id.     Accordingly, we conclude the November 2004

order does not bind Patel on the issue of arbitrability under the

law of the case doctrine.

            Furthermore, although we recognize Patel’s confusing

pleadings   greatly   contributed     to    the    district    court’s     orders

denying arbitration, we vacate the court’s August 2005 order.

Patel   maintained    in   district   court       that   he   was    “faced   with

submitting [his] defenses and arguments to the arbitrator in the

first   instance     to    comply   with    the     [a]rbitration       clause.”

Regardless of the substantive arguments he planned on submitting to

the arbitrator, he did not ask the district court to alter or void

the arbitration clause in conformity with his wishes.

            On appeal, Patel reiterates he seeks to submit the matter

to arbitration pursuant to the arbitration clause.                  For its part,

Choice has consistently stated, notwithstanding its                 challenges to

Patel’s arguments on appeal, that it would be willing to submit all

of its claims to arbitration.          In light of the “directive to

resolve doubts and ambiguities in favor of arbitration,” Washington

Square Securities, Inc. v. Aune, 385 F.3d 432, 438 (4th Cir. 2004),

we conclude arbitration would provide the best course for this




                                    - 7 -
litigation,   provided   there   exist   arbitrable   claims   under   the

arbitration clause.5

            Therefore, we vacate the district court’s August 2005

order and remand to the district court for a determination of which

claims, if any, are within the scope of the arbitration agreement.

Enforcement    of   agreements   to   arbitrate   under    the   Federal

Arbitration Act may require piecemeal litigation, see Dean Witter

Reynolds, 470 U.S. at 221, and the decision to stay the litigation

of any claims or issues found to be non-arbitrable is a matter

largely within the district court’s discretion to control its

docket.    Moses H. Cone Mem’l Hosp., 460 U.S. at 20 n.23; Summer

Rain v. Donning Co./Publishers, Inc., 964 F.2d 1455, 1461 (4th Cir.

1992).    Therefore, we leave for the district court the question of

whether to stay any non-arbitrable claims pending arbitration. See

American Recovery Corp. v. Computerized Thermal Imaging, Inc., 96

F.3d 88, 97 (4th Cir. 1996).

            We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials before

the court and argument would not aid the decisional process.



                                                  VACATED AND REMANDED



     5
      We note, without deciding, that Choice’s breach of contract
claim is potentially arbitrable pursuant to Choice Hotels Int’l,
Inc. v. BSR Tropicana Resort, Inc., 252 F.3d 707, 710-12 (4th Cir.
2001).

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