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Palcko v. Airborne Express Precedential or Non-Precedential: Precedential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

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact [email protected]. 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”),

(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.

(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

(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

, 1343. The subject to this title; or FAA,

(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

(stating that the or interstate commerce. FAA’s “plain language contemplates interlocutory appeals from orders” denying

. arbitration because of questions related to In Circuit City Stores, Inc. v. the validity of the underlying contract, and Adams,

(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.’”

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,

(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,

. 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 . . . .”

. 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

(“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,

; see “management employees” in the same generally Great W. Mortgage Corp. v. chain of command. Palcko was a direct Peacock,

(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.,

(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

, 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

(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.,

(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.”

. 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.,

(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.,

(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.,

(1985). agreements. Dean Witter Reynolds, Inc. v. Byrd,

(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.”

at 477

(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.,

(1989) (overruling stated that “[t]here is no federal policy Wilko v. Swan,

(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,

(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,

(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,

(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,

(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.,

(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.,

, 925 Rule 12(b)(3); Palcko incorrectly cited (3d Cir. 1992); see also Thyssen, Inc. v. Rule 12(b)(4).

11 Calypso Shipping Corp.,

(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,

, 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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