“[T]he parties are entitled to know the reasons upon which summary judgment was based, if for no other reason than to secure meaningful appellate review.”
How later courts described this case
- “[T]he parties are entitled to know the reasons upon which summary judgment was based, if for no other reason than to secure meaningful appellate review.”
- emphasizing that the answer came after a motion for stay pending arbitration
- emphasizing that a defense asserted in the answer “called on the district court to refer the case to arbitration” and that a defensive motion for summary judgment was filed concurrently with the motion to compel arbitration
- concluding that a district court must stay its proceedings while the interlocutory appeal on arbitrability is ongoing, reasoning that “courts of appeals possess robust tools to prevent unwarranted delay and deter frivolous interlocutory appeals.”
Written by the judges who cited it.
The opinion
Case: 25-20413 Document: 79-1 Page: 1 Date Filed: 05/27/2026
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
____________ Fifth Circuit
FILED
No. 25-20413 May 27, 2026
____________
Lyle W. Cayce
Clerk
Global Advantech Resources Limited,
Plaintiff—Appellee,
versus
Richard Brown; Snake River Oil & Gas, L.L.C.; Weiser-
Brown Oil Company,
Defendants—Appellants.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:22-CV-3968
______________________________
Before Stewart, Engelhardt, and Douglas, Circuit Judges.
Per Curiam: *
Defendants-Appellants Richard Brown, Snake River Oil & Gas,
L.L.C., and Weiser-Brown Oil Company (“the Brown Defendants”) appeal
the district court’s order denying their August 2025 motions seeking to
compel the claims asserted by Plaintiff-Appellee Global Advantech
Resources Limited (“GAR”) to arbitration and to stay discovery and all
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 25-20413 Document: 79-1 Page: 2 Date Filed: 05/27/2026
No. 25-20413
unexpired pretrial and trial deadlines pending disposition of the motion to
compel. For the reasons stated herein, we AFFIRM.
I.
GAR alleges that the Brown Defendants, in combination with other
allegedly associated natural persons and business entities, disclosed GAR’s
proprietary and confidential information to third parties (state and federal
regulatory agencies) without GAR’s authorization. GAR originally provided
the information to Alta Mesa Holdings, LP (“Alta Mesa”), a Texas
company, as part of a proposal for GAR to provide a wastewater treatment
system to Alta Mesa, after Dale Hayes, on behalf of Alta Mesa, executed a
“Confidentiality and Non-Circumvention Agreement” (“the NDA”) on
February 10, 2017. The NDA includes an arbitration provision, in Clause
4.3, which states:
Any dispute arising out of or in connection with this
Agreement, including any question regarding its existence,
validity or termination, shall be referred to and finally resolved
by arbitration under the London Court of International
Arbitration (LCIA) Rules, which Rules are deemed to be
incorporated by reference into this clause. The number of
arbitrators shall be one (the ‘Sole Arbitrator’).
GAR provided proposals to Alta Mesa, after discussions over a
number of months, in May, July, August, and December 2017. Discussions
between the companies regarding GAR’s proposals ended on February 1,
2018, however, when “Defendant Hayes’ [January 31, 2018] email made it
clear [Alta Mesa] had made a management decision not to go with [GAR’s]
proposal.”
Several months later, a November 16, 2018 email from Hayes first
alerted GAR that an unauthorized disclosure of its confidential and
2
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No. 25-20413
proprietary information had occurred. According to paragraph 62 of the First
Amended Complaint, the email stated, in pertinent part:
We need to ask your forgiveness and ask for a favor, if you agree
with our request.
We used some of the information from your 5/6/2017 Proposal
for Packaged Produced Water Treatment Systems to give
credence to our argument with a regulatory agency. . . . It
appears that the entire GA proposal was submitted to the
regulatory agency and now there have been requests from the
public for copies of this documentation. We now realize that
we should have obtained your consent before we submitted the
documents to them. The regulatory folks are seeing the
copyright information in the documentation you provided, and
are asking if it is possible to remove the copyright . . . ? Would
it be possible for you to give us a waiver for the use of the
information and release of the copyright, for this purpose?
As a result of the unauthorized disclosure(s), 1 GAR filed suit against
Hayes, Harlan Chappelle, and James Hackett on November 15, 2022. The
Brown Defendants were added as defendants in GAR’s May 4, 2023 First
Amended Complaint. 2 GAR asserts a number of state and federal-law
claims, including claims of fraudulent inducement, common law fraud, and
civil conspiracy, as well as claims asserted under the federal Defend Trade
Secrets Act (“DTSA”), 18 U.S.C. § 1831, et seq., and the Texas Uniform
Trade Secrets Act (“TUTSA”), Tex. Civ. Prac. Rem. Code
§ 134(A), seeking declaratory relief and damages.
_____________________
1
GAR alleges that the Brown Defendants “evidently continued to illicitly and
illegitimately misuse” GAR’s confidential information in applying for regulatory (EPA)
approval.
2
The Brown Defendants were served on July 14 and 19, 2023.
3
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No. 25-20413
On August 4, 2023, the Brown Defendants filed a motion, pursuant to
Federal Rules of Civil Procedure 12(b)(2), 12(b)(6), and 12(b)(7), seeking
dismissal with prejudice for lack of personal jurisdiction and, alternatively (if
the district court were to conclude it has personal jurisdiction), for failure to
state a claim, and for failure to join an indispensable party. In requesting
dismissal under Rule 12(b)(6), the Brown Defendants argued that GAR’s
claims against them are barred by the applicable statutes of limitations; that
GAR lacks standing to pursue an alter ego claim that belongs to Alta Mesa’s
and High Mesa Holdings, L.P.’s bankruptcy estates; that GAR has not
specifically or plausibly alleged fraud; and that GAR’s fraud and fraudulent
inducement claims are barred by the “economic loss” rule and for lack of
privity. In the motion’s conclusion, the Brown Defendants urged:
Plaintiff’s claims against Movants should be dismissed with
prejudice for lack of personal jurisdiction.
In the alternative, because Plaintiff has not, and indeed cannot,
plausibly allege any cognizable claim against Movants,
Plaintiff’s claims against Movants should be dismissed with
prejudice for failure to state a claim upon which relief can be
granted.
On August 29, 2024, the district court held a telephone scheduling
conference with counsel and entered an order stating:
Pursuant to phone conference conducted this day, the Court
removes this case from the trial docket, takes up the pending
motions and, if necessary, enters a docket control order. 3
On September 26, 2024, the district court denied the Brown
Defendants’ August 24, 2023 motion to dismiss, reasoning that the pleading-
_____________________
3
The district court’s April 20, 2023 Scheduling Order contemplated a September
2024 trial.
4
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No. 25-20413
sufficiency requirements of Rules 8 and 12(b)(6) had been met, that the
pleadings and proffered documents revealed factual disputes, and that
discovery was necessary to “unravel the relationships between and among
the individuals and [related] entities.” 4
On September 30, 2024, the district court entered an Amended
Scheduling Order setting a January 2026 trial date and corresponding pretrial
deadlines. 5
On October 10, 2024, the Brown Defendants filed an “Answer and
Defenses to Plaintiff’s First Amended Complaint.” Regarding personal
jurisdiction, the Answer states, in footnote 1:
[The Brown Defendants’] jurisdictional challenges remain
live. The Answer is expressly made subject to [the Brown
Defendants’] arguments against the exercise of personal
jurisdiction, and [the Brown] Defendants reserve all rights with
respect to the same.
_____________________
4
See September 26, 2024 Order.
5
The September 30, 2024 Amended Scheduling Order established the following:
The initial disclosures are due on or before: October 30, 2024
New parties/class allegations by: TBD
Plaintiff’s experts to be designated by: June 1, 2025
Report furnished by: June 1, 2025
Defendant’s experts to be designated by: July 1, 2025
Report furnished by: July 1, 2025
Discovery to be completed by: September 30, 2025
Dispositive motions due by: October 15, 2025
Docket Call at 11:30 AM: January 5, 2026
Estimated Trial Time: TBA, Jury
5
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No. 25-20413
In the Answer, the Brown Defendants also specifically responded to GAR’s
allegations, and asserted thirty-two (32) “defenses and affirmative defenses
to some or all of [GAR’s] claims and/or damages requests, each in the
alternative and to the extent necessary and applicable.” Among these
affirmative defenses were: (1) the absence of personal jurisdiction and (2)
failure to state a claim or cause of action for which relief can be granted
(including the reasons stated in the August 3, 2023 (first) motion to dismiss).
Regarding additional affirmative defenses, paragraph 33 of the Answer
states:
Defendants reserve and assert all affirmative defenses available
under any applicable law. Defendants presently have
insufficient knowledge or information upon which to form a
belief as to whether they may have other, yet unstated,
defenses available. Accordingly, Defendants reserve the right
to supplement this Answer and assert additional affirmative
defenses or other defenses at such time and to such extent as
warranted by discovery and the factual development of this
case.
Finally, “[p]ursuant to Rule 38 of the Federal Rules of Civil
Procedure, [the Brown Defendants] demanded a trial by jury in this action of
all issues so triable[,]” and, in the “Prayer,” stated:
Defendants Richard Brown, Snake River Oil & Gas, LLC, and
Weiser-Brown Oil Company respectfully request that Plaintiff
take nothing in this matter; that all relief prayed for by Plaintiff
be denied; that Plaintiff’s claims be dismissed with prejudice;
and that the Court enter final judgment in favor of Defendants
and against Plaintiff on all claims. Defendants further request
that the Court award Defendants their attorneys’ fees, costs of
court and litigation, and such other and further relief, at law or
in equity, to which Defendants may show themselves justly
entitled.
6
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No. 25-20413
On October 18, 2024, the district court, in response to a “Motion for
Clarification and Limited Reconsideration” that the Brown Defendants also
had filed on October 10, 2024, issued an order granting the motion to the
extent that the September 26, 2024 order was “modified to provide that the
denial therein of [the Brown Defendants’] jurisdictional challenge is without
prejudice to [their] ability to raise such issues.” 6 Additionally, the September
30, 2024 Amended Scheduling Order was revised to establish a procedure for
resolving [the Brown Defendants’] jurisdictional challenges. 7
On February 14, 2025, after jurisdictional discovery was complete, the
Brown Defendants re-urged their personal jurisdiction challenge by filing a
“renewed” Rule 12(b)(2) motion to dismiss. Though contesting personal
jurisdiction was its primary objective, the February 14, 2025 motion also
reasserted:
Plaintiff’s claims fail as a matter of law, inter alia, because (1)
the applicable statutes of limitations bar their assertion; (2)
[GAR] lacks standing to assert them because they are based on
alter ego theories belonging to the bankruptcy estates of AMH
and HMH; and (3) the economic loss doctrine precludes the
recasting of simple breach of contract claims as claims for
fraud.
_____________________
6
See October 18, 2024 Order.
7
Plaintiff’s jurisdictional discovery to be served by: November 10, 2024
Plaintiff’s jurisdictional discovery to be completed by: December 30, 2024
Movants’ renewed jurisdictional challenge to be filed by: January 20, 2025
Plaintiff’s response to the renewed jurisdictional challenge to be filed by:
February 5, 2025
Hearing on the renewed jurisdictional challenge, if necessary: TBD
7
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No. 25-20413
And again the Brown Defendants sought dismissal with prejudice—in their
motion, reply, and proposed order—of GAR’s claims. 8
The district court’s April 16, 2025 order denied the Brown
Defendants’ motion, explaining:
The plaintiff raises at least two points that the Court finds to
be meritorious, and on which bases the Court denies the
defendants’ motion to dismiss in its entirety. First, the
evidence adduced so far shows that the defendants were
involved in some respect in the relevant transactions, directly
or indirectly[,] that now form the basis of the plaintiff’s current
claims. Whether the plaintiff’s claims are meritorious, or not,
they are sufficiently intertwined with the personal jurisdiction
issue such that full discovery will be necessary to determine
whether the Court has jurisdiction. Hence, the merits of the
plaintiff’s claims will, likely, reveal whether the defendants
may be sued in Texas. Therefore, “due process” dictates that
the Court err on the side of fairness to all parties. This position
is also supported by the forum selection clauses contained in
the original contract(s). The PSA agreements appear to be the
basis of Alta Mesa’s reorganization and reveal a forum
selection clause that consented to jurisdiction in Texas. The
defendants acquired, or now have, an interest in the assets.
The Court does not decide here whether the consent in the
PSAs followed the assets that the defendants[] acquired,
simply that the merits of the plaintiff’s claim and whether
personal jurisdiction attached are intertwined such that
fairness dictate[s] that personal jurisdiction follow the merits. 9
_____________________
8
See February 14, 2025 Motion at 3–4, 17) (urging entitlement to “dismissal with
prejudice”); February 14, 2025 Proposed Order (proposing “dismiss[al] with prejudice).;
March 12, 2025 Reply at 3, 13 (requesting dismissal with prejudice).
9
See April 16, 2025 Order. In addition to denying the Brown Defendants’ motion
to dismiss, the April 16 order also determined that “[GAR’s] alternative motion to transfer
this case is rendered Moot.” GAR had filed the referenced “conditional” motion to
8
Case: 25-20413 Document: 79-1 Page: 9 Date Filed: 05/27/2026
No. 25-20413
On April 29, 2025, GAR filed a “joint and otherwise unopposed
motion” seeking a sixty-day extension of certain pretrial deadlines “in order
to further prepare and properly present the case for trial.”
On May 29, 2025, the district court granted the April 29, 2025
motion. 10
_____________________
transfer on March 5, 2025, requesting that, if the court were to find that any of the Brown
Defendants are not subject to personal jurisdiction in the Southern District of Texas, the
“action(s) as suitable” be severed and transferred pursuant to 28 U.S.C. § 1631, in the
interest of justice, to federal courts with personal jurisdiction—Idaho (where Brown
resides) and/or Arkansas (where Weiser- Brown and SROG are organized or have their
principal place of business).
The Brown Defendants opposed the motion, arguing that a transfer that would
“split the action” into three—one in Texas, one in Idaho against Brown, and another in
Arkansas against Weiser-Brown and SROG—would not be in the interest of justice. They
added: “Whether a product of [GAR’s] carelessness or gamesmanship, it was [GAR’s]
decision to sue [the Brown Defendants] in this Court. Using section 1631 to save [GAR]
from the consequences of its decision would not serve the interest of justice.”
10
The May 29, 2025 Order revised the September 30, 2024 Amended Scheduling
Order as follows:
New parties/class allegations by: TBD
Plaintiff’s experts to be designated by: July 31, 2025
Report furnished by: July 31, 2025
Defendant’s experts to be designated by: September 1, 2025
Report furnished by: September 1, 2025
Discovery to be completed by: December 1, 2025
Dispositive motions due by: December 15, 2025
Docket Call at 11:30 AM: January 5, 2026
Estimated Trial Time: TBA, Jury
9
Case: 25-20413 Document: 79-1 Page: 10 Date Filed: 05/27/2026
No. 25-20413
On June 25, 2025, the Brown Defendants deposed GAR’s corporate
representative. 11
On July 30, 2025, GAR filed a notice of settlement between GAR and
Defendants Hayes and Chappelle and moved by agreement with and non-
opposition by the remaining defendants (the Brown Defendants) for a brief
extension of the current respective deadlines for expert designation(s) and
opening report(s) to enable the parties to further prepare and properly
present the case for trial.
On August 8, 2025, the district court granted the July 30, 2025
motion. 12
On August 11, 2025, the Brown Defendants filed their “Motion to
Transfer Venue and, in the Alternative, Motion to Compel Arbitration”
requesting that the case be immediately “transferred to the District of Idaho
pursuant to 28 U.S.C. § 1404(a) for determination of [their] motion to
compel arbitration or, if necessary, resolution of GAR’s claims on the
_____________________
11
See June 16, 2025 Notice of Deposition; Appellee Brief at 24 n.55 (referencing
June 25, 2025 deposition of corporate representative Michael Levey).
12
The May 29, 2025 Scheduling Order was revised as follows:
New parties/class allegations by: TBD
Plaintiff’s experts to be designated by: September 8, 2025
Report furnished by: September 8, 2025
Defendant’s experts to be designated by: October 8, 2025
Report furnished by: October 8, 2025
Discovery to be completed by: December 1, 2025
Dispositive motions due by: December 15, 2025
Docket Call at 11:30 AM: January 5, 2026
Estimated Trial Time: TBA, Jury
10
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No. 25-20413
merits.” Alternatively, if transfer were denied, the motion requested that
GAR’s claims against them be compelled to arbitration. 13
On September 16, 2025, the district court denied the Brown
Defendants’ motions. 14
This interlocutory appeal of the arbitration ruling followed. 15 See
Coinbase, Inc. v. Bielski, 599 U.S. 736, 738 (2023) (“When a federal district
court denies a motion to compel arbitration, the losing party has a statutory
right to an interlocutory appeal.” (citing 9 U.S.C. § 16(a)). 16
On September 30, 2025, the district court, on GAR’s motion,
certified this interlocutory appeal as “frivolous and dilatory warranting
_____________________
13
See August 11, 2025 Motion at 2 (“Should this Court decide that it—rather than
the District of Idaho—will hear Defendants’ motion to compel, the Convention requires
the Court to compel this case to arbitration consistent with the terms of the Arbitration
Agreement.”).
14
See September 16, 2025 Order.
15
See Amended Notice of Appeal; Orig. Notice of Appeal.
16
See 9 U.S.C. § 16 (a)(1)(C) (permitting appeal from an order “denying an
application under [9 U.S.C. § 206] to compel arbitration”); 9 U.S.C. § 206 (“A court
having jurisdiction under [Chapter 2 of Title 9 of the United States Code] may direct that
arbitration be held in accordance with the agreement.”); 9 U.S.C. Ch. 2 (“Chapter Two—
Convention on the Recognition and Enforcement of Foreign Arbitral Awards”).
11
Case: 25-20413 Document: 79-1 Page: 12 Date Filed: 05/27/2026
No. 25-20413
summary disposition.” As a result of that certification, proceedings in district
court have continued 17 despite the pendency of this appeal. 18
_____________________
17
According to the district court’s Case Management/Electronic Case Filing
(CM/ECF) system, the parties filed a joint motion on December 5, 2025, seeking to
continue the docket call set for January 5, 2026 until “late January, 2026,” but “leav[e] the
remaining deadlines as currently set.” See Global Advantech Resources, Ltd. v. Hayes, et al.,
No. 4:22-cv-03968 (S.D. Tex.). The district court’s December 10, 2025 order canceled the
docket call set for January 5, 2026 “pending appeal.” Id. On December 15, 2025, the Brown
Defendants filed a motion for summary judgment.
18
See BancPass, Inc. v. Highway Toll Admin., L.L.C., 863 F.3d 391, 398,400 (5th Cir.
2017) (recognizing an “exception to the usual rule that ‘a notice of appeal . . . [gives] the
appellate court sole jurisdiction and divest[s] the trial court of jurisdiction to proceed with
the case,’” in the context of an interlocutory appeal of the denial of an immunity defense,
provided that the district court “elect[s] to make the [written] findings necessary to a
demonstration of frivolousness or forfeiture [of entitlement to a pretrial appeal]” (first
quoting United States v. Dunbar, 611 F.2d 985, 987 (5th Cir. 1980); and then quoting Apostol
v. Gallion, 870 F.2d 1335, 1340 (7th Cir. 1989)); Dunbar, 611 F.2d at 988 (“Henceforth, the
district courts, in any denial of a double jeopardy motion, should make written findings
determining whether the motion is frivolous or nonfrivolous. If the claim is found to be
frivolous, the filing of a notice of appeal by the defendant shall not divest the district court
of jurisdiction over the case.”); see also Coinbase, Inc., 599 U.S. at 738 (concluding that a
district court must stay its proceedings while the interlocutory appeal on arbitrability is
ongoing, reasoning that “courts of appeals possess robust tools to prevent unwarranted
delay and deter frivolous interlocutory appeals.”); id. (“For example, a party can ask the
court of appeals to summarily affirm, to expedite an interlocutory appeal, or to dismiss the
interlocutory appeal as frivolous. In addition, nearly every circuit has developed a process
by which a district court itself may certify that an interlocutory appeal is frivolous.”);
Arthur Andersen LLP v. Carlisle, 556 U.S. 624, 629 (2009) (recognizing that 9 U.S.C.
§ 16(a)(1)(A) permits interlocutory appeals of orders “refusing a stay of any action under
[9 U.S.C. § 3]” and that “[a]ppellate courts can streamline the disposition of meritless
claims and even authorize the district court’s retention of” a case “when an [interlocutory]
appeal is certified as frivolous”); Behrens v. Pelletier, 516 U.S. 299, 310–11 (1996)
(explaining that district courts’ appropriately certifying interlocutory appeal of immunity
as “frivolous,” in accordance with “practice . . . embraced by several Circuits, enables the
district court to retain jurisdiction pending summary disposition of the appeal, and thereby
minimize[] disruption of the ongoing proceedings”).
12
Case: 25-20413 Document: 79-1 Page: 13 Date Filed: 05/27/2026
No. 25-20413
II.
Our review of a district court’s determination of a motion to compel
arbitration is de novo. Garcia v. Fuentes Rest. Mgmt. Servs. Inc., 141 F.4th 671,
677 (5th Cir. 2025). Our review of any factual findings underlying that
determination is for clear error. Id. “When a district court denies a motion to
compel due to waiver, ‘[w]e review the issue of whether a party’s conduct
amounts to a waiver of arbitration de novo.’” Id. (alteration in original)
(quoting Subway Equip. Leasing Corp. v. Forte, 169 F.3d 324, 326 (5th Cir.
1999)).
A “district court’s non-application of intertwined-claims estoppel [to
enforce an arbitration agreement] is reviewed for abuse of discretion.”
Newman v. Plains All Am. Pipeline, L.P., 23 F.4th 393, 407 (5th Cir. 2022); see
also Cure & Assocs., P.C. v. LPL Fin. L.L.C., 118 F.4th 663, 668 (5th Cir.
2024) (“[T]he court review[s] for abuse of discretion a district court’s
determination of whether equitable estoppel may be invoked to compel
arbitration.” (quoting Bufkin Enters., L.L.C. v. Indian Harbor Ins. Co., 96
F.4th 726, 729 (5th Cir. 2024))). “To constitute an abuse of discretion, the
district court’s decision must be either premised on an application of the law
that is erroneous, or on an assessment of the evidence that is clearly
erroneous.” Cure & Assocs., 118 F.4th at 668–69 (quoting Bufkin, 96 F.4th at
729 (quoting Grigson v. Creative Artists Agency, L.L.C., 210 F.3d 524, 528 (5th
Cir. 2000))).
Regrettably, our review of the district court’s denial of the Brown
Defendants’ motion to compel arbitration has been unnecessarily
complicated and time-consuming by virtue of the court’s failure to provide
even a summary explanation of the legal and factual bases for its ruling
(despite the multiple and varied arguments GAR presented in opposition to
13
Case: 25-20413 Document: 79-1 Page: 14 Date Filed: 05/27/2026
No. 25-20413
the motion). 19 In fact, the September 16, 2025 order simply adopts the
conclusory language set forth in the proposed order submitted by GAR,
specifically:
Pending before the Court are [the Brown Defendants’]
Motion to Transfer and Compel Arbitration [ECF 104] and
corresponding Motion to Stay [ECF 105]. The Court, having
considered Movants’ Motion to Transfer and Compel
Arbitration and corresponding Motion to Stay and all matters
on file and before it, is of the opinion that Movants’ Motion to
Transfer and Compel Arbitration and corresponding Motion to
Stay should be DENIED. It is, therefore,
ORDERED that Movants’ Motion to Transfer and
Compel Arbitration and accompanying Motion to Stay are
hereby DENIED [sic] to the extent that the parties are unable
to complete discovery and/or answer for trial, the Court
directs the parties to confer and submit an agreement that
reasonably extends pretrial and trial dates.
It is so ORDERED.
The same is true of the court’s September 30, 2025 order certifying the
Brown Defendants’ interlocutory appeal as “frivolous and dilatory” and
electing to retain jurisdiction pending disposition of the appeal. It states, in
pertinent part:
IT IS ORDERED that Plaintiff’s Renewed Opposed
Motion [ECF 123] to Certify Defendants’ Amended Notice of
Interlocutory Appeal [ECF 121] as frivolous and/or dilatory is
GRANTED.
IT IS FURTHER ORDERED that the Court
accordingly finds Defendants’ Amended Notice of
Interlocutory Appeal [ECF 121] of the Court’s Order [ECF
_____________________
19
See Appellee Brief at 26-27 (listing/summarizing grounds of GAR’s opposition).
14
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No. 25-20413
114] Denying Defendants’ Motion to Transfer and Compel
Arbitration [ECF 104] is frivolous and dilatory warranting
summary disposition.
IT IS FURTHER ORDERED that the Court hereby
elects to retain jurisdiction pending summary disposition of
Defendants’ interlocutory appeal in furtherance of proceeding
as scheduled.
It is so ORDERED.
Given these circumstances, we considered remanding for the district
court to provide a statement of reasons for its ruling. 20 But our painstaking
_____________________
20
Of course, we are aware that Rule 52(a)(3) of the Federal Rules of Civil
Procedure provides: “The court is not required to state findings or conclusions when ruling
on a motion under Rule 12 or 56 or, unless these rules provide otherwise, on any other
motion.” Fed. R. Civ. P. 56 (a)(3). But, as we have said many times, adequate
explanation of the basis of the district court’s ruling ensures effective appellate court
review. See, e.g., Heller v. Namer, 666 F.2d 905, 911 (5th Cir. 1982) (addressing grants of
summary judgment); Liberty Mut. Ins. Co. v. Brown, 86 F. App’x 718, 719 (5th Cir. 2004)
(“[T]he parties are entitled to know the reasons upon which summary judgment was based,
if for no other reason than to secure meaningful appellate review.”). A lengthy, detailed
recitation of reasons is unnecessary. Certainly, a concise explanation can be brief but yet
sufficiently informative. In fact, a statement that the court’s decision is made “for the
reasons set forth in [a party’s] brief” or that “[one of the parties] has the better argument,
is persuasive, etc.,” sometimes is enough.
In instances where “we have no notion of the basis for a district court’s decision,
because its reasoning is vague or was simply left unsaid, [such that] there is little
opportunity for effective review[] . . . , we have not hesitated to remand the case for an
illumination of the court’s analysis through some formal or informal statement of reasons.”
Myers v. Gulf Oil Corp., 731 F.2d 281, 283–84 (5th Cir. 1984) (discussing grants of summary
judgment); id. at 284 (“Because the District Court gives no indication from which we can
accurately predict its basis for granting summary judgment for Gulf, we cannot adequately
review its decision. Thus, we vacate the Order and remand for findings and conclusions
consistent with this opinion.”). A limited remand for this purpose also may be warranted
where an “appellate court cannot ascertain which of several theories formed the basis for
the [district court’s decision].” Liberty Mut. Ins. Co., 86 F. App’x at 719. Or where it is not
apparent that the district court has considered all relevant factors. See In re Media Matters
for Am., 143 F.4th 631, 639–40 (5th Cir. 2025).
15
Case: 25-20413 Document: 79-1 Page: 16 Date Filed: 05/27/2026
No. 25-20413
examination of the record has convinced us that doing so is not strictly
necessary. Our rigorous assessment of the record and the parties’ appellate
submissions—connecting all the dots—has rendered us sufficiently
confident that the district court denied the Brown Defendants’ motion to
compel arbitration because it determined that they had waived their right to
require GAR’s claims be adjudicated by arbitration rather than litigation. 21
III.
Waiver is “the intentional relinquishment or abandonment of a known
right.” Morgan v. Sundance, Inc., 596 U.S. 411, 417 (2022) (quoting United
States v. Olano, 507 U.S. 725, 733 (1993)). “The right to arbitrate a dispute,
like all contract rights, is subject to waiver.” Nicholas v. KBR, Inc., 565 F.3d
904, 907 (5th Cir. 2009). Waiver may be express or implied from conduct.
See Garcia, 141 F.4th at 677 n.5. In this appeal, our focus is the latter. Id.
A.
“[T]o determine whether the right to arbitrate was [impliedly]
waived . . . , we now ask whether the [moving] party ‘knowingly
relinquish[ed] the right to arbitrate by acting inconsistently with that right.’”
Id. at 676 (quoting Morgan, 596 U.S. at 419). Showing that a party has
“substantially invoked the judicial process” is “one way of demonstrating
that a party waived its right [to arbitrate].” Id. 22 To substantially invoke the
judicial process, a party must “at the very least, engage in some overt act in
court that evinces a desire to resolve the arbitrable dispute through litigation
_____________________
21
On the instant record, we agree with GAR’s assertion that the issue of “waiver
by litigation conduct” is properly decided by the court rather than the arbitrator. See Int’l
Energy Ventures Mgmt., L.L.C. v. United Energy Grp., Ltd., 999 F.3d 257, 264–65 (5th Cir.
2021); Vine v. PLS Fin. Servs., Inc., 689 F. App’x 800, 802–04 (5th Cir. 2017).
22
“We use the term [invoke] to describe the act of implementing or enforcing the
judicial process[.]” Vine, 689 F. App’x at 804 (first alteration in original).
16
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No. 25-20413
rather than arbitration.” Id. at 676 n.4 (quoting In re Mirant Corp., 613 F.3d
584, 589 (5th Cir. 2010)). Thus, when the moving party is a defendant, the
court must assess whether the defendant, during the course of the litigation,
has acted in such a manner that the law deems the defendant to have
acquiesced to having the claims at issue adjudicated by means of court
litigation rather than arbitration.
“[A] bright-line rule is inappropriate for deciding whether a party has
waived its right to arbitration.” Id. at 677 (quoting Mirant, 613 F.3d at 589).
Rather, “whether a party waived its right to arbitrate is necessarily fact-
intensive; thus, a fact that weighs in favor of waiver in one case may not carry
any weight in another.” Id. “We consider the totality of the
circumstances[,]” and “evaluate the issue of delay ‘objectively, independent
of motivation,’ considering it in light of all of the facts.” Id. at 677, 680
(quoting Walker v. J.C. Bradford & Co., 938 F.2d 575, 578 (5th Cir. 1991)). 23
B.
In this instance, having considered the entirety of the circumstances
and applicable law, we are convinced that the district court correctly
determined that the Brown Defendants waived—intentionally
relinquished—their arbitration rights vis-à-vis GAR’s claims by
substantially invoking the judicial process. As detailed in the case chronology
set forth above, the Brown Defendants’ litigation conduct demonstrates their
knowing acquiescence to a judicial determination of GAR’s claim.
_____________________
23
As we explained in Walker:
The question simply is whether [a party] still retains a right to invoke its
arbitration agreement. If so, it can for whatever reason; if not, then it
cannot, no matter how pure its motives.
938 F.2d at 578.
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No. 25-20413
Notably, neither of the Brown Defendants’ two Rule 12(b) motions to
dismiss—the first of which included jurisdictional and merits-based grounds
for dismissal—asserted a right to arbitrate. 24 Just as they did with their Rule
12(b)(6) motion, the Brown Defendants could have filed simultaneous
motions to dismiss for lack of personal jurisdiction and to compel arbitration
without prejudicing their jurisdictional challenge. 25 Likewise, a right to
arbitrate (unlike the Brown Defendants’ personal jurisdiction challenge) was
neither expressly reserved in their October 10, 2024 Answer nor included in
the thirty-two (32) affirmative defenses asserted therein.
_____________________
24
“[G]iven the variety of motions to dismiss under 12(b)(6), along with the
differing consequences that attend them, we have held that simply filing a motion to dismiss
can be, but is not necessarily, enough to waive arbitration rights.” Pumphrey v. Triad Life
Scis., Inc., No. 24-60028, 2024 WL 4100495, at *3 (5th Cir. Sept. 6, 2024) (citing Mirant,
613 F.3d at 589). “[I]n some instances, a defendant can attempt to adjudicate the merits of
a plaintiff’s claim under a Rule 12(b)(6) motion, asserting either that there is a fundamental
flaw in the plaintiff’s legal theory, see, e.g., Nietzke v. Williams, 490 U.S. 319, 326–27 (1989),
or that the defendant is entitled to dismissal based on an affirmative defense, see, e.g., Clark
v. Amoco Prod. Co., 794 F.2d 967, 970 (5th Cir. 1986).” Id. at *2. “In those instances, when
amending the complaint may be “futile,” granting a motion to dismiss can result in
dismissing a plaintiff’s claims with prejudice.” Id. (internal citations omitted). Finally,
where multiple amendments of the complaint have been allowed, an order granting a Rule
12(b)(6) motion may dismiss with prejudice. See Mirant, 613 F.3d at 588–89; see also D&T
Partners, L.L.C. v. Baymark Partners Mgmt., L.L.C., 98 F.4th 198, 210 (5th Cir.) (“We
review ‘the district court’s decision to grant a motion to dismiss with or without prejudice
only for abuse of discretion.’” (quoting Club Retro, L.L.C., v. Hilton, 568 F.3d 181, 215 n.34
(5th Cir. 2009), cert. denied, 145 S. Ct. 264 (2024)).
25
See Hines v. Stamos, 111 F.4th 551, 563–66 (5th Cir. 2024) (acknowledging that
defendants frequently file such simultaneous motions and confirming that district courts
are required to resolve the threshold jurisdictional disputes before resolving arbitrability);
id. at 562–63 (“Assuming without deciding that a motion to compel arbitration is a request
for ‘affirmative relief,’ that request, by itself, is insufficient to consent to personal
jurisdiction when a defendant has continuously objected to personal jurisdiction.”); id. at
563 n.39 (listing cases where defendants “moved to dismiss for lack of personal jurisdiction
or, alternatively, to compel international arbitration” or filed a “motion to compel
arbitration and, alternatively, motion to dismiss for lack of personal jurisdiction”).
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No. 25-20413
These facts distinguish this case from those that the Brown
Defendants cite in support of their position. See Garcia, 141 F.4th at 679 n.7
(distinguishing prior cases’ procedural postures); KeyTrade USA, Inc. v. AIN
Temouchent M/V, 404 F.3d 891, 897–98 (5th Cir. 2005) (emphasizing that a
defense asserted in the answer “called on the district court to refer the case
to arbitration” and that a defensive motion for summary judgment was filed
concurrently with the motion to compel arbitration); Williams v. Cigna Fin.
Advisors, Inc., 56 F.3d 656, 661–62 (5th Cir. 1995) (emphasizing that the
answer came after a motion for stay pending arbitration); Walker, 938 F.2d at
576–77 (emphasizing that the party seeking arbitration had not previously
“ask[ed] the court to make any judicial decisions”); Tenneco Resins, Inc. v.
Davy Int’l, AG, 770 F.2d 416–17, 420–21 (5th Cir. 1985) (repeatedly
emphasizing that the answer “alleged as a defense that the action should be
dismissed because the dispute was covered by a valid and enforceable
arbitration clause in the contract between the parties”). 26
In Garcia, we made this very point relative to a defendant’s answering
a complaint but failing to mention an arbitration agreement in its numerous
affirmative defenses. 141 F.4th at 679. Citing the Supreme Court’s discussion
in Morgan, we explained: “Answering a complaint does not typically suggest
that a party has substantially invoked the judicial process[,] . . . [b]ut that is
not to say that filing an answer can never contribute to such a finding.” Id. at
679.
_____________________
26
See also Mirant, 613 F.3d at 589–90 (explaining that a party will not waive
arbitration by “seeking a decision on the merits” if a dispositive motion is submitted “only
as an alternative to a motion to compel arbitration” because “[i]n those circumstances,
there is no attempt to game the system by seeking a decision on the merits while keeping
the arbitration option as a backup plan in case the effort fails”).
19
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No. 25-20413
Furthermore, even when seeking dismissal for lack of personal
jurisdiction, in addition to urging that GAR’s claims were time-barred and
otherwise legally flawed, the Brown Defendants’ Rule 12 motions sought
dismissal with prejudice. 27 Surely a party’s repeated requests for dismissal
with prejudice, unaccompanied by any reservation of a right to seek
arbitration in its motions, or in one of the thirty-two affirmative defenses
asserted in its Answer, signal a desire to resolve an arbitrable dispute through
litigation. Cf. Mirant, 613 F.3d at 589 (concluding that arbitration was waived
where the movant filed a motion seeking dismissal with prejudice for failure
to state a claim before moving to compel arbitration).
In any event, even after the district court denied their renewed motion
to dismiss on April 16, 2025, such that the existence of personal jurisdiction
would be determined with the merits, the Brown Defendants still did not
move to compel arbitration, seek to amend their Answer to assert a right to
arbitrate, or even query whether the other parties were amenable to
arbitration. Instead, the Brown Defendants conducted merits-based
discovery, including the June 25, 2025 deposition of GAR’s corporate
representative, and twice joined GAR in requesting extensions of various
pretrial deadlines (to allow the parties sufficient time for more discovery and
_____________________
27
It is well-settled that dismissals for lack of personal jurisdiction are supposed to
be without prejudice. See, e.g., Pace v. Cirrus Design Corp., No. 23-60465, 2024 WL 2817567,
at *2 (5th Cir. June 3, 2024) (“[B]ecause the merits of Pace’s claims against these
defendants have never been decided, the dismissal should have been without prejudice.”);
Guidry v. U.S. Tobacco Co., 188 F.3d 619, 632 n.2 (5th Cir. 1999) (“[T]he district court’s
judgment [purporting to dismiss with prejudice] can have no effect as a dismissal with
prejudice but must be considered as a dismissal for lack of personal jurisdiction, which is
not a judgment on the merits.”).
20
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No. 25-20413
to prepare for a January 2026 jury trial), before finally asserting a right to
arbitrate (more than two years into the litigation) on August 11, 2025.
Though we have recognized that a court should not infer waiver of
arbitration from “minimal discovery,” Garcia, 141 F.4th at 678 (internal
citations omitted), we also have reasoned, because of potential prejudice and
differing arbitration rules regarding discovery, that “[p]arties cannot enjoy
the benefits of federal discovery, and then, after doing so, seek to enforce a
decision through private resolution,” Janvey v. Alguire, 847 F.3d 231, 244
(5th Cir. 2017). In this instance, the Brown Defendants have not
demonstrated that the discovery undertaken was “minimal”; nor have they
addressed the scope of discovery permitted by the London Court of
International Arbitration (LCIA) Rules.
Given the significant consumption of limited judicial resources that
accompanies every lawsuit filed, and certainly those pending for years,
though “we no longer search for prejudice due to delay, we still find value in
an objective consideration of the duration of the proceedings when
determining whether there has been a substantial invocation of the judicial
process.” Garcia, 141 F.4th at 680 n.8. And “[w]e frown upon attempts ‘to
switch judicial horses in midstream’ due to ‘poor judgment . . . or poor
foresight.’” Id. at 680 (quoting Walker, 938 F.2d at 577). As we reasoned in
Walker:
In general, we do not look kindly upon parties who use federal
courts to advance their causes and then seek to finish their suits
in the alternate fora that they could have proceeded to
immediately. Such actions waste the time of both the courts
and the opposing parties. The decision whether to arbitrate is
one best made at the onset of the case, and not part of the way
through[.]
938 F.2d at 577.
21
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No. 25-20413
Finally, the Brown Defendants’ vague assertions regarding the
purported significance of the June 25, 2025 deposition of GAR’s corporate
representative fail to convince us that the district court erred in denying their
motion to compel arbitration. Specifically, the September 8, 2025 reply
submitted to the district court states: “[I]t was only after the June 25, 2025
deposition of Plaintiff’s corporate representative that the role of the NDA
(and [the Brown] Defendants’ estoppel arguments) in this lawsuit came fully
into frame.” And, on appeal, the Brown Appellants urge: “[O]n June 25,
2025, Appellants participated in the deposition of Appellee’s corporate
representative, after which the role of the NDA with regard to Appellee’s
Claims came fully into frame.” We assume (but are not certain) that these
assertions, though stated differently, attempt to make the same point.
Regardless, as GAR points out, the Brown Defendants have had the
three-page NDA from the outset of this litigation. And from the filing of their
first motion, the Brown Defendants have insisted that GAR’s claims seek to
hold the Brown Defendants liable in tort for alleged breaches of the NDA.
Furthermore, the agreement’s arbitration clause is easily found. In fact, it is
on the same page (two) as the allegedly violated non-disclosure and non-
circumvention provisions. Thus, cases finding no waiver of arbitration where
the moving party reasonably had been unaware of an arbitration agreement,
but promptly sought to enforce it upon discovery, have no application here.
See, e.g., Williams, 56 F.3d at 661.
C.
We are not certain why the Brown Defendants now seek to have an
arbitrator, rather than a court, and the jury they previously demanded,
adjudicate GAR’s claims. But, ultimately, it does not matter. They cannot
22
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No. 25-20413
now regain a right that they, through their litigation conduct, have
relinquished. 28
We AFFIRM. 29
_____________________
28
Whether there may be particular circumstances that would enable a party to
revoke a waiver of arbitration is a question that we need not and do not consider today.
29
Given this disposition, the pending motion in the alternative for summary
affirmance is DENIED as MOOT.
23