                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-18-2004

Palcko v. Airborne Express
Precedential or Non-Precedential: Precedential

Docket No. 03-2227




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Recommended Citation
"Palcko v. Airborne Express" (2004). 2004 Decisions. Paper 546.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/546


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                    PRECEDENTIAL            David L. DaCosta (Argued)
                                            Joseph J. McAlee
   UNITED STATES COURT OF                   Sprague & Sprague
APPEALS FOR THE THIRD CIRCUIT               Philadelphia, PA 19103

                                                   Attorneys for Appellee

              No. 03-2227
                                                  OPINION OF THE COURT


        MARGARET PALCKO
                                            SLOVITER, Circuit Judge.
                   v.                               The principal questions before us
                                            on this appeal are the scope of the
     AIRBORNE EXPRESS, INC.,                exclusion from the Federal Arbitration Act
               Appellant                    (“FAA”), 9 U.S.C. §§ 1-16 (2004), for a
                                            “class of workers engaged in foreign or
                                            interstate commerce” and the preemptive
                                            effect, if any, of the statutory exclusion.
    On Appeal from the United States
                                                                I.
              District Court
 for the Eastern District of Pennsylvania           Defendant Airborne Express, Inc.
          (D.C. No. 02-cv-02990)            (“Airborne”) appeals from the District
District Judge: Hon. Thomas N. O’Neill,     Court’s order dated April 23, 2003
                    Jr.                     denying Airborne’s motion to compel
                                            arbitration of plaintiff Margaret Palcko’s
                                            claims under Title VII of the Civil Rights
        Argued January 12, 2004             Act of 1964 (“Title VII”), 42 U.S.C. §
                                            2000e (2004), and the Pennsylvania
 Before: SLOVITER, RENDELL, and             Human Relations Act, 43 Pa. Cons. Stat.
      ALDISERT, Circuit Judges              Ann. §§ 951-963 (2004).           Airborne
                                            contends that Palcko is required to
         (Filed: June 18, 2004)             arbitrate her claims pursuant to a
                                            contractual arbitration agreement based on
                                            the FAA and Washington state law. Its
Sharon M . Erwin    (Argued)                appeal challenges the District Court’s
Law Offices of Sharon M. Erwin, LLC         rulings that Palcko, as a transportation
Philadelphia, PA 19129                      worker engaged in interstate commerce, is
                                            excluded from the FAA’s coverage, and
      Attorney for Appellant                that this FAA exemption preempts
                                            enforcement of Palcko’s arbitration
a g r e e m e n t w i t h A i r b o rn e      under       App. at 19.
Washington state law.
                                                                     According to Palcko, once she
                        II.                               began performing her duties at Airborne
                                                          she encountered immediate resistance and
        Airborne       is    a    p a ckage
                                                          hostility from the drivers under her
transportation and delivery company that
                                                          supervision. She alleges that other
engages in intrastate, interstate, and
                                                          Airborne employees falsely accused her of
international shipping. It began employing
                                                          sexual misconduct, verbally and physically
Palcko as a Field Services Supervisor in
                                                          intimidated her during work, created a
Philadelphia in 1998. Palcko’s duties
                                                          hostile work environment through sexist
included supervising between thirty and
                                                          remarks, spread offensive rumors about
thirty-five drivers who delivered packages
                                                          her sex life and moral character through
from Airborne’s facility near the
                                                          Airborne’s internal communications
Philadelphia International Airport to their
                                                          system, and generally discriminated
ultimate destinations in the Philadelphia
                                                          against her because of her gender. Pl.’s
area, and picked up packages from
                                                          Compl. at 3-7. Palcko contends that
customers in the Philadelphia area and
                                                          Airborne did not meaningfully investigate
brought them back to Airborne’s facility
                                                          and address these incidents, which she
for shipment. Palcko monitored and
                                                          reported to the company management.
improved the performance of the drivers
                                                          According to Palcko, when her immediate
under her supervision to ensure timely and
                                                          supervisor, Michael Matey, told her in the
efficient delivery of packages.
                                                          presence of others during a March 5, 2001
       When Palcko was hired, she agreed                  meeting that “[m]aybe you don’t belong in
to enter into a “M utual Agreement to                     this industry” and “[m]aybe you should
Arbitrate Claims” with Airborne. The                      just leave,” she left the meeting and never
relevant portions of the Agreement, which                 returned to her position at Airborne. Pl.’s
covers “all claims,” provides:                            Compl. at 7. Airborne denies all Palcko’s
                                                          f a c t u a l a l l e g a t io n s o f c o m p a n y
        Except as provided in this
                                                          wrongdoing. Def.’s Answer at 3-6.
        Agreement, the Federal
        Arbitration Act shall govern                              Palcko filed a charge against
        the     i n t e r p r e t a ti o n,               Airborne with the Equal Employment
        enforcement and all                               Opportunity Commission on May 31,
        proceedings pursuant to this                      2001, seeking administrative remedies for
        Agreement. To the extent                          her allegations under Title VII, 42 U.S.C.
        that the Federal Arbitration                      § 2000e-5. After 180 days elapsed without
        A c t is inapp licable ,                          a finding by the Commission on Palcko’s
        Washington law pertaining                         charge against Airborne, she requested a
        to agreements to arbitrate                        Dismissal and Notice of Rights from the
        shall apply.                                      Commission. 42 U.S.C. § 2000e-5(f)(1).

                                                      2
The Commission issued the Dismissal and             appeal from the District Court’s order
Notice, thereby exhausting Palcko’s                 denying its motion to compel arbitration.1
administrative remedies and allowing her            Brayman Constr. Corp. v. Home Ins. Co.,
to seek judicial recourse.                          319 F.3d 622, 624-25 (3d Cir. 2003).
                                                    Palcko contends, however, that because
        Palcko filed a complaint against
                                                    the District Court found Palcko’s
Airborne in the District Court for the
                                                    employment contract to be exempt from
Eastern District of Pennsylvania on May
                                                    the FAA, we have no jurisdiction to
20, 2002 under Title VII and the
                                                    review that court’s denial of Airborne’s
Pennsylvania Human Relations Act. After
                                                    motion to compel arbitration under 9
the parties resolved issues unrelated to this
                                                    U.S.C. § 16(a), which is a section of the
appeal pertaining to the service of process,
                                                    FAA. Appellee’s Br. at 1.
Airborne filed a motion to compel
arbitration of Palcko’s claims under the
parties’ arbitration agreement.          The
                                                       1
District Court denied Airborne’s motion                    9 U.S.C. § 16(a) states:
on April 24, 2003, holding that Palcko’s                   (a) An appeal may be taken from–
employment contract is “excluded from the                  (1) an order–
coverage of the FAA because of the nature                  (A) refusing a stay of any
of her work.” App. at 14, 17-18. The                       action under section 3 of
court also found that the exclusionary                     this title,
effect of the FAA preempts alternative                     (B) denying a petition
enforcement of the arbitration contract                    under section 4 of this title
under Washington state law, as such                        to order arbitration to
enforcement “would directly conflict with                  proceed,
Congress’s express purpose” of exempting                   (C) denying an application
a certain class of workers “from a federal                 under section 206 of this
law otherwise favoring arbitration.” App.                  title to compel arbitration,
at 18. Airborne now appeals from the                       (D) confirming or denying
District Court’s order.                                    confirmation of an award
                                                           or partial award, or
                    III.
                                                           (E) modifying, correcting,
A.     The Federal Arbitration Act                         or vacating an award;
                                                           (2) an interlocutory order
       1.     Jurisdiction
                                                           granting, continuing, or
       The District Court had subject                      modifying an injunction
matter jurisdiction over Palcko’s Title VII                against an arbitration that is
claim under 28 U.S.C. §§ 1331, 1343. The                   subject to this title; or
FAA, 9 U.S.C. § 16(a), provides for                        (3) a final decision with
appellate jurisdiction over Airborne’s                     respect to an arbitration
                                                           that is subject to this title.

                                                3
        Palcko’s contention is without                    Our jurisdiction over the District
merit. We have held in Sandvik AB v.                Court’s order here, therefore, is clear.
Advent International Corporation, 220
                                                           2. Exemption Under Section 1 of
F.3d 99 (3d Cir. 2000), that the FAA’s
                                                           the FAA
provision for interlocutory appeals of
orders denying motions to compel                           Section 1 of the FAA provides:
arbitration clearly endows us with
                                                             . . . [N]othing herein
appellate jurisdiction even in instances
                                                           contained shall apply to
when the validity of the underlying
                                                           contracts of employment of
contract to arbitrate is in doubt, as in
                                                           seamen, railroad employees,
Palcko’s case with respect to the
                                                           or any other class of
arbitration agreement’s reference to the
                                                           workers engaged in foreign
FAA. See id. at 100 (stating that the
                                                           or interstate commerce.
FAA’s “plain language contemplates
interlocutory appeals from orders” denying          9 U.S.C. § 1.
arbitration because of questions related to
                                                            In Circuit City Stores, Inc. v.
the validity of the underlying contract, and
                                                    Adams, 532 U.S. 105 (2001), the Supreme
that “other parts of the statute evince clear
                                                    Court considered the scope of this
Congressional intent that challenges to
                                                    exemption from the FAA. The employer
refusals to compel arbitration be promptly
                                                    in that case, Circuit City, sought to compel
reviewed by appellate courts”).
                                                    arbitration as provided for in its
        Acceptance of Palcko’s argument             employment contracts. The Ninth Circuit
would create the curious situation in which         held that arbitration was not appropriate
either all district courts’ orders denying          because section 1 of the FAA exempts
arbitration based on section 1’s exemption          from its coverage all employment
clause would be beyond appellate review,            contracts. The Supreme Court reversed,
which contradicts section 16(a)’s plain             rejecting the Ninth Circuit’s expansive
language, or the determination of our               reading of section 1. The Court noted that
appellate jurisdiction would be contingent          “[m]ost Courts of Appeals conclude the
on the outcome of our review of the merits          exclusion provision is limited to
of the District Court’s finding on the              transportation workers, defined, for
exemption question, which is precisely              instance, as those workers ‘actually
what we are barred from doing in the                engaged in the movement of goods in
absence of appellate jurisdiction. As we            interstate commerce.’” Id. at 112 (citing
stated in Sandvik, “The more natural                Cole v. Burns Int’l Security Servs., 105
reading [of Section 16(a) is] to treat all          F.3d 1465, 1471 (D.C. Cir. 1997)).
orders declining to compel arbitration as           Looking to the statutory language, the
reviewable.” Id. at 103. No appellate               Court applied the interpretation maxim of
court has held to the contrary.                     ejusdem generis and read the words “any


                                                4
other class of workers engaged in . . .             America, 207 F.2d 450, 452 (3d Cir.
commerce,” as giving “effect to the terms           1953), reasoned that Palcko qualifies as a
‘seamen’ and ‘railroad employees.’”                 transportation worker because her job
Circuit City, 532 U.S. at 115. The Court            “was so closely related [to the transport of
held that the residual phrase “any other            the goods] as to be in practical effect part
class of workers engaged . . . in interstate        of [the shipping of the goods].” App. at 17
commerce” should “be controlled and                 (internal quotations omitted). Airborne
defined by reference to the enumerated              challenges the court’s finding, arguing that
categories of workers which are recited             Palcko, as a “management employee” with
just before it . . . .” Id. at 115. Reading         no close contact with channels of interstate
section 1 in this narrow manner, the Court          commerce and not subject to other existing
noted, also concurs with Congress’s intent          statutory employment dispute resolution
in enacting the FAA to compel                       schemes, cannot qualify as an exempt
enforcement of arbitration agreements in            worker under section 1 of the FAA.
response to then-prevalent judicial hostility       Appellant’s Br. at 27-36.
toward such agreements, especially given
                                                             Fifty years ago, this court in Tenney
the fact that more specific and
                                                    was required to construe the meaning of
comprehensive fede ral arbitra tion
                                                    the exception clause in the context of a
procedures for seamen and railroad
                                                    labor dispute. The union sought a stay
employees were already in existence or on
                                                    pending arbitration which was provided in
the verge of passage. See id. at 121 (“It
                                                    the collective bargaining agreement. The
would be rational for Congress to ensure
                                                    parties stipulated that the employer was
that workers in general would be covered
                                                    engaged in the manufacture of goods for
by the provisions of the FAA, while
                                                    sale in interstate commerce and that the
reserving for itself more specific
                                                    employees were eng aged in that
legislation for those engaged in
                                                    manufacture and incidental plant
transportation.”) (citation omitted).
                                                    maintenance. Presaging the Supreme
        To determine whether Palcko’s               Court’s holding in Circuit City, we held
employment contract, including the                  that the exception was inapplicable. We
arbitration agreement, is exempt from the           stated that as the language “any other class
FAA’s coverage, we must therefore                   of workers engaged in foreign or interstate
determine whether Palcko can be                     commerce” followed seamen and railroad
considered to be a “transportation worker”          workers, the rule of ejusdem generis
in a “class of workers . . . engaged in . . .       demands that the phrase includes “only
commerce” within the meaning of the                 those other classes of workers who are
FAA, as interpreted by Circuit City. The            likewise engaged directly in commerce,
District Court, citing our decision in              that is, only those other classes of workers
Tenney Engineering, Inc. v. United                  who are actually engaged in the movement
Electrical Radio & Machine Workers of               of interstate or foreign commerce or in


                                                5
work so closely related thereto as to be in         who physically transported goods across
practical effect part of it.” Tenney, 207           state lines, it would have phrased the
F.2d at 452. The Supreme Court’s later              FAA’s language accordingly. 2         We
decision in Circuit City essentially                therefore concur with the District Court’s
affirmed the Tenney analysis. 532 U.S. at           finding that Palcko’s employment contract
119.                                                with Airborne is exempt from the FAA’s
                                                    coverage because she is a transportation
         Adopting the narrow interpretation
                                                    worker engaged in interstate and foreign
of section 1 stated in Tenney and Circuit
                                                    commerce under section 1 of that statute.
City, Airborne argues that Palcko’s work,
as a supervisor, was not only dissimilar to         B.       The FAA’s Preemptive Effect over
that of seamen or railroad workers, but                      Washington State Law Governing
also did not directly involve the interstate                 Arbitration
delivery of packages. She therefore cannot
                                                             1.    Jurisdiction
be a “transportation worker” in the sense
envisioned by the Court in Circuit City.                    Airborne also argues that even if its
We do not agree. According to Palcko’s              arbitration agreement with Palcko is
affidavit, she was responsible for                  exempt from the FAA’s coverage, the
“ m o n i t o ri n g a n d i m p rovin g th e
performance of drivers un der my
                                                         2
supervision to insure [sic] timely and                      We are not persuaded by
efficient delivery of packages.” App. at            Airborne’s suggestion that the inclusion
67. Such direct supervision of package              of Palcko in the class of workers exempt
shipments makes Palcko’s work “so                   from the FAA’s coverage would create a
closely related [to interstate and foreign          “slippery slope” problem that would
commerce] as to be in practical effect part         ultimately lead to the exemption of all
of it.” Tenney, 207 F.2d at 452; see                “management employees” in the same
generally Great W. Mortgage Corp. v.                chain of command. Palcko was a direct
Peacock, 110 F.3d 222, 226-27 (3d Cir.              supervisor of Airborne’s drivers that
1997) (declaring that Tenney is still good          transported packages, and our decision is
law).                                               based only on her particular relations to
                                                    the channels of interstate commerce. In
        Airborne suggests that the
                                                    this regard Palcko’s situation differs
exemption clause should be limited to
                                                    from the employee litigants in Cole, 105
those truck drivers who physically move
                                                    F.3d at 1469, and Kropfelder v. Snap-On
the packages. If we were to accept that
                                                    Tools Corp., 859 F. Supp. 952 (D. Md.
limitation, we would unnecessarily narrow
                                                    1994); neither the railroad security guard
the section 1 exemption in a way never
                                                    in Cole nor the warehouse manager in
intended by the FAA; had Congress
                                                    Kropfelder was a transportation worker,
intended the residual clause of the
                                                    let alone engaged in the transportation of
exemption to cover only those workers
                                                    goods interstate.

                                                6
agreement is nonetheless enforceable                pendent appellate jurisdiction by Courts of
under the alternative ground that the               Appeals, we concluded that “the doctrine
arbitration agreement is valid under                should be used ‘sparingly,’ and only where
Washington state law. Before we examine             there is sufficient overlap in the facts
the merit of Airborne’s argument,                   relevant to both the appealable and
however, we must first ascertain whether            nonappealable issues to warrant plenary
there is a basis for our jurisdiction to            review.” Id. at 203 (emphasis in original).
inquire into this state-law claim.
                                                           Here, both the FAA exemption and
       The District Court exercised                 Washington state law issues arise from a
supplemental jurisdiction over Palcko’s             single arbitration agreement that provides
Pennsylvania state law cause of action              alternative grounds for the arbitration of
under 28 U.S.C. § 1367, and issued an               all claims arising from Palcko’s
order denying Airborne’s motion to                  employment with Airborne. Moreover,
compel arbitration on both FAA and                  both Palcko’s Title VII and Pennsylvania
Washington state law grounds. While we              Human Relations Act claims arise from the
may review Airborne’s appeal with respect           same set of facts related to her conditions
to the FAA under 9 U.S.C. § 16(a), that             as an Airborne employee. Thus, not only
section does not cover our review of a              does sufficient overlap of facts exist to
non-FAA, state-law arbitration claim in an          warrant plenary rev iew, b ut the
otherwise nonappealable interlocutory               Washington state law arbitration issue is
order.     Our ability to review the                so closely intertwined with the FAA claim
Washington state law issue before us, if            that our taking of pendent appellate
any, must therefore rest on the doctrine of         jurisdiction over the former is necessary to
pendent appellate jurisdiction, which is            ensure meaningful review of the District
discretionary and narrow in nature.                 Court’s order in its entirety. We therefore
                                                    conclude we may exercise pendent
       In E.I. Dupont de Nemours and Co.
                                                    appellate jurisdiction over the state-law
v. Rhone Poulenc Fiber and Resin
                                                    portion of the District Court’s order.
Intermediates, S.A.S., 269 F.3d 187 (3d
Cir. 2001), we explained that “[t]he                       2.     Discussion
doctrine of pendent appellate jurisdiction,
                                                           The District Court ruled that the
in its broadest formulation, allows an
                                                    exemption of Palcko’s employment
appellate court in its discretion to exercise
                                                    contract from the FAA’s coverage also
jurisdiction over issues that are not
                                                    precludes enforcement of the arbitration
independently appealable but that are
                                                    agreement under Washington state law.
intertwined with issues over which the
                                                    The court found that “[a]lthough the FAA
appellate court properly and independently
                                                    contains no express preemptive provision
exercises its jurisdiction.” Id. at 202-03.
                                                    and its preemptive effect is limited, its
Recognizing that the Supreme Court has
                                                    preemptive effect does encompass
endorsed, but also limited, the use of

                                                7
questions of arbitrability.” App. at 17. It         also Gilmer v. Interstate/Johnson Lane
reasoned that enforcement of the                    Corp., 500 U.S. 20 (1991) (enforcing
arbitration agreement between Palcko and            arbitration clause in a securities
Airborne “in accordance with state laws             registration application to cover an Age
favoring arbitration would directly conflict        Discrimination in Employment Act claim).
with Congress’s express purpose,” in                In doing so, the Supreme Court has held
drafting the exemption clause in section 1          that the FAA represents a “liberal federal
of the FAA, of exempting workers                    policy favoring arbitration agreements.”
engaged in interstate commerce from                 Moses H. Cone Mem’l Hospital v.
arbitration. App. at 18.                            Mercury Constr. Corp., 460 U.S. 1, 24
                                                    (1983). The Court has also stated that
        In considering whether the
                                                    parties to an arbitration agreement,
inclusion of the exemption clause was
                                                    “[h]aving made the bargain to arbitrate . .
intended to preempt state law regarding
                                                    . should be held to it unless Congress itself
enforcement of arbitration agreements, we
                                                    has evinced an intention to preclude a
must keep in mind that Congress enacted
                                                    waiver of judicial remedies for the
the FAA “to ensure judicial enforcement
                                                    statutory rights at issue.” Mitsubishi
of privately made agreements to arbitrate,”
                                                    Motors Corp. v. Soler Chrysler-Plymouth,
rather than restrict the force of arbitration
                                                    Inc., 473 U.S. 614, 628 (1985).
agreements. Dean Witter Reynolds, Inc. v.
Byrd, 470 U.S. 213, 219 (1985). The                         There is no language in the FAA
Supreme Court has stated that “passage of           that explicitly preempts the enforcement of
the Act was motivated, first and foremost,          state arbitration statutes. As the Supreme
by a congressional desire to enforce                Court explained in Volt Information
agreements into which parties had entered,          Sciences, Inc. v. Board of Trustees of
and [courts] must not overlook this                 Leland Stanford Junior University, 489
principal objective when construing the             U.S. 468 (1989), “The FAA contains no
statute, or allow the fortuitous impact of          express pre-emptive provision, nor does it
the Act on efficient dispute resolution to          reflect a congressional intent to occupy the
overshadow the underlying motivation.”              entire field of arbitration.” Id. at 477
Id. at 220 (footnote omitted). In seeking to        (citing Bernhardt v. Polygraphic Co., 350
fulfill the FAA’s purpose, the Court has            U.S. 198 (1956), which upheld application
enforced an agreement to arbitrate claims           of state arbitration law to an arbitration
under the Securities Act of 1933, even              provision in a contract not covered by the
though prior case law stated that the               FAA). The Volt Court, in determining
Securities Act’s language prohibits the             whether to enforce an arbitration
arbitration of such claims. Rodriguez de            agreement using a California procedural
Quijas v. Shearson/American Express,                rule that has no counterpart in the FAA,
Inc., 490 U.S. 477 (1989) (overruling               stated that “[t]here is no federal policy
Wilko v. Swan, 346 U.S. 427 (1953)); see            favoring arbitration under a certain set of


                                                8
procedural rules; the federal policy is             Mason-Dixon Lines, Inc. v. Local Union
simply to ensure the enforceability,                No. 560, 443 F.2d 807 (3d Cir. 1971), “In
according to their terms, of private                our view, the effect of Section 1 is merely
agreements to arbitrate.” Id. at 476. The           to leave the arbitrability of disputes in the
Court then ruled that the application of the        excluded categories as if the [Federal]
California procedural rule to stay                  Arbitration Act had never been enacted.”
arbitration to the agreement, in accordance         Id. at 809.3 Here, enforcement of the
with a choice-of-law provision contained            arbitration agreement between Palcko and
therein, is appropriate because while “state        Airborne under Washington state law, as if
law may nonetheless be pre-empted [by               the FAA “had never been enacted,” does
the FAA] to the extent that it actually             not contradict any of the language of the
conflicts with federal law – that is, to the        FAA, but in contrast furthers the general
extent that it stands as an obstacle to the         policy goals of the FAA favoring
accomplishment and execution of the full            arbitration. We will therefore remand so
purposes and objectives of Congress,” the           that the District Court can take the actions
application of the state procedural rule, “in       necessary to enforce the arbitration
accordance with the terms of the                    agreement under Washington state law.
arbitration agreement itself, would [not]
                                                    C.       Whether Airborne Waived Its Right
undermine the goals and policies of the
                                                             to Arbitration
FAA.” Id. at 477-78 (internal quotations
and citations omitted).                                   Palcko also argues on appeal that
                                                    Airborne has waived its right to arbitration
        Applying the Supreme Court’s
precedent, we conclude that the District
Court erred in holding that Palcko’s
                                                         3
exemption status under section 1 of the                     Although Mason-Dixon Lines
FAA preempts the enforcement of the                 involved the different issue of staying
arbitration agreement under Washington              judicial proceedings pending arbitration
state law. It is telling that the arbitration       under an agreement excluded from
agreement itself envisioned the possibility         section 1 of the FAA, the principle we
that Palcko’s employment contract would             put forth in that case regarding the
be deemed exempt from the FAA’s                     exclusionary effect of section 1 on other
coverage under section 1 of the Act. It             arbitration issues not related to the FAA
provided for that contingency by including          is equally applicable here. The case also
the following: “To the extent that the              demonstrates that enforcing the
Federal Arbitration Act is inapplicable,            arbitration agreement under Washington
Washington law pertaining to agreements             state law does not contradict our finding
to arbitrate shall apply.” App. at 19. We           above that Palcko’s employment
see no reason to release the parties from           contract, of which the arbitration
their own agreement.         We stated in           agreement is a part, is exempted from the
                                                    FAA’s coverage.

                                                9
by failing to include it in its initial motion        (g) Consolida tion of
to dismiss on the ground of alleged                   Defenses in Motion.         A
defective service of process under Federal            party who makes a motion
Rule of Civil Procedure 12(b). Palcko’s               under this rule may join
argument is unpersuasive. Rule 12 deals               with it any other motions
with defenses and objections by pleading              herein provided for and then
or motion. The relevant portions of Rule              available to the party. If a
12, for Palcko’s purposes, are as follows:            party makes a motion under
                                                      this rule but omits therefrom
       (b) How Presented. Every
                                                      any defense or objection
       defense, in law or fact, to a
                                                      then available to the party
       claim for relief in any
                                                      which this rule permits to be
       pleading, whether a claim,
                                                      raised by motion, the party
       counterclaim, cross-claim,
                                                      shall not thereafter make a
       or third-party claim, shall be
                                                      motion based on the defense
       asserted in the responsive
                                                      or objection so omitted,
       pleading thereto if one is
                                                      except a motion as provided
       required, except that the
                                                      in subdivision (h)(2) hereof
       following defenses may at
                                                      on any of the grounds there
       the option of the pleader be
                                                      stated.
       made by motion: (1) lack of
       jurisdiction over the subject                  (h) Waiver or Preservation
       m a t t e r , ( 2 ) la c k o f                 of Certain Defenses.
       jurisdiction over the person,
                                                             (1) A defense of lack
       (3) improper venue, (4)
                                                      of jurisdiction over the
       insufficiency of process, (5)
                                                      person, improper venue,
       insufficiency of service of
                                                      insufficiency of process, or
       process, (6) failure to state a
                                                      insufficiency of service of
       claim upon which relief can
                                                      process is waived (A) if
       be granted, (7) failure to
                                                      omitted from a motion in the
       join a party under Rule 19.
                                                      circumstances described in
       A motion making any of
                                                      subdivision (g), or (B) if it is
       these defenses shall be made
                                                      neither made by motion
       before pleading if a further
                                                      under this rule nor included
       pleading is permitted. No
                                                      in a responsive pleading or
       defense or objection is
                                                      an amen dmen t thereof
       waived by being joined with
                                                      permitted by Rule 15(a) to
       one or more other defenses
                                                      be made as a matter of
       or objections in a responsive
                                                      course.
       pleading or motion. . . .


                                                 10
               (2) A defense of                    support Palcko’s creative theory. The only
       failure to state a claim upon               support Palcko has cited is a Pennsylvania
       which relief can be granted,                state cour t decisio n interp retin g
       a defense of failure to join a              Pennsylvania state rules of civil procedure.
       party indispensable under                   Wilk v. Ravin, 46 Pa. D. & C. 4th 347 (Ct.
       Rule 19, and an objection of                Com. Pl. Allegheny County 1991);
       failure to state a legal                    Appellant’s Reply Br. at 13. Wilk is of
       defense to a claim may be                   little relevance to interpretation of federal
       made in any pleading                        procedural rules. Our prior decisions
       permitted or ordered under                  support the traditional practice of treating
       Rule 7(a), or by motion for                 a motion to compel arbitration as a motion
       judgment on the pleadings,                  to dismiss for failure to state a claim upon
       or at the trial on the merits.              which relief can be granted.             See
                                                   Nationwide Ins. Co. v. Patterson, 953 F.2d
Fed. R. Civ. P. 12(b), (g), (h).
                                                   44, 45 n.1 (3d Cir. 1991) (“Dismissal of a
        Palcko contends that although              declaratory judgment action because the
motions to dismiss based on the existence          dispute is covered by an arbitration
of an arbitration agreement are most               provision is generally effected under Rule
commonly filed under Rule 12(b)(1) (lack           12(b)(6) covering dismissals for failure to
of subject matter jurisdiction) or Rule            state a claim upon which relief can be
12(b)(6) (failure to state a claim upon            granted, see, e.g., Aetna Casualty & Surety
which relief can be granted), that practice        Co. v. Hameen, 758 F. Supp. 1049 (E.D.
is inappropriate and that motions to               Pa. 1990), . . . .”).
dismiss based on an arbitration agreement
                                                           Allowing a waiver of the right to
are more appropriately brought under Rule
                                                   arbitration based on Rule 12(h)(1) would
12(b)(2) (lack of personal jurisdiction) or
                                                   undermine the strong judicial posture
Ru le 12(b)(3) (improper venue). 4
                                                   favoring arbitration as discussed above.
Appellee’s Br. at 14. Palcko’s novel
                                                   Our precedent holds that waiver of
categorization of the arbitration agreement
                                                   arbitration rights “is not to be lightly
claim is critical to her waiver argument
                                                   inferred” by federal courts. PaineWebber
because motions under Rule 12(b)(1) and
                                                   Inc. v. Faragalli, 61 F.3d 1063, 1068 (3d
(b)(6) are not waived under Rule 12(h)(1),
                                                   Cir. 1995) (quoting Gavlik Constr. Co. v.
but motions under Rule 12(b)(2) and (b)(3)
                                                   H.F. Campbell Co., 526 F.2d 777, 783 (3d
are.
                                                   Cir. 1975)). We have also stated that
       Existing legal authorities do not           “prejudice is the touchstone for
                                                   determining whether the right to arbitrate
                                                   has been waived.” Hoxworth v. Blinder,
   4
      Improper venue claims fall within            Robinson & Co., Inc., 980 F.2d 912, 925
Rule 12(b)(3); Palcko incorrectly cited            (3d Cir. 1992); see also Thyssen, Inc. v.
Rule 12(b)(4).

                                              11
Calypso Shipping Corp., 310 F.3d 102 (2d             remand for further proceedings consistent
Cir. 2002) (ruling that no waiver exists             with this opinion.
even though defendant did not seek
arbitration until more than eighteen
months after the suit was filed and after
plaintiff filed a motion for partial summary
judgment).
        Although we found prejudice in
Hoxwo rth because defendants had
engaged in extensive pretrial practice
(including filing a motion to dismiss for
failure to state a claim) in the more than
eleven months prior to filing a motion to
compel arbitration, Hoxworth, 980 F.2d at
925, nothing in the record suggests that
Palcko has suffered a similar adverse
effect here. Airborne filed its motion to
compel arbitration within thirty-eight days
of learning of the lawsuit and within
roughly twenty-two days of filing its initial
motion to dismiss for insufficiency of
service of process. Appellant’s Reply Br.
at 12 n.2. Airborne had also requested that
Palcko voluntarily agree to arbitration ten
days before filing its motion to compel
arbitration. Appellant’s Reply Br. at 14.
Although the length of the time period
involved alone is not determinative,
Palcko has failed to show what adverse
effects, if any, she has suffered within that
short period of time. Therefore waiver
cannot be inferred from the facts of this
case.
                    IV.
       For the above reasons, we will
reverse the order of the District Court
denying enforcement of the arbitration
agreement under Washington state law and


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