NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________

No. 21-3108 ____________

SARAH CAR CARE, INC.

v.

LOGISTICARE SOLUTIONS, LLC; MODIVCARE SOLUTIONS, LLC, f/k/a LogistiCare and/or LogistiCare Solutions, LLC,

Appellants ____________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2-21-cv-01761) District Judge: Honorable John M. Younge ____________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) June 15, 2023

Before: PORTER, FREEMAN and FISHER, Circuit Judges.

(Filed: August 22, 2023) ____________

OPINION*

____________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. FISHER, Circuit Judge.

LogistiCare Solutions, LLC and ModivCare Solutions, LLC (collectively,

ModivCare) appeal the District Court’s order denying their motion for a protective order

to stay discovery on the ground that the order effectively denied their still pending motion

to compel arbitration.

ModivCare is a broker of transportation services. To support its bid on a request

for proposal issued by the Pennsylvania Department of Health and Human Services,

ModivCare signed a letter of intent with Sarah Car Care. The letter stated ModivCare

would utilize Sarah Car Care for non-emergency medical transportation services if its bid

won. The Department ultimately awarded ModivCare the contract, after which

ModivCare entered into a transportation services agreement with Sarah Car Care. As

relevant here, the agreement included a mandatory arbitration provision.

Several years later, Sarah Car Care sued ModivCare in state court, alleging claims

for breach of contract as to the letter of intent and transportation services agreement,

promissory estoppel, unjust enrichment, and violations of federal law. In April 2021,

ModivCare removed the case to federal court and promptly moved to dismiss or stay and

compel arbitration based on the arbitration clause in the transportation services

agreement. Rather than ruling on the motion, the District Court issued a Rule 16 order

directing the parties to “make the required initial disclosures,” “commence” and

“conduct[] substantial discovery,” and “complete” a discovery plan all before a pretrial

2 conference set for October 2021.1 ModivCare unsuccessfully sought an adjournment of

discovery obligations and the pretrial conference while its motion to compel arbitration

remained pending. Additionally, eleven days before the pretrial conference, ModivCare

moved for a protective order “staying all discovery pending resolution” of its motion to

compel arbitration.2 The pretrial conference took place as scheduled on October 19, 2021.

Thereafter, the District Court declined to enter a protective order, set deadlines for

completion of discovery, and scheduled the final pretrial conference. ModivCare

appeals.3 The District Court’s proceedings are stayed.4

We generally only have jurisdiction over “final decisions of the district courts.”5

However, under the Federal Arbitration Act, a party may immediately appeal an order

“refusing a stay of any action”6 involving “any issue referable to arbitration under an

agreement in writing for such arbitration.”7 This includes orders denying motions to

1 Supp. App. 216; see also Fed. R. Civ. P. 16, 26(a)(1), (f).

; see also Fed. R. Civ. P. 26(c). 3 The District Court had jurisdiction pursuant to

and 1332. The parties dispute our jurisdiction, but “it is familiar law that a federal court always has jurisdiction to determine its own jurisdiction.” United States v. Ruiz,

(2002). We exercise de novo review over this determination. Doe v. Coll. of N.J.,

, 493 n.3 (3d Cir. 2021). 4 See Coinbase, Inc. v. Bielski,

, 1921 (2023) (district courts cannot “move forward with pre-trial and trial proceedings while the appeal on arbitrability [is] ongoing”). 5

. 6

(a)(1)(A). 7

§ 3.

3 compel arbitration,8 as well as “orders that have the effect of declining to compel

arbitration.”9 ModivCare’s appeal relies on the latter part of that rule, arguing that we

have jurisdiction to review the District Court’s judgment because the Court effectively

denied its motion to compel arbitration by declining to stay discovery.

We agree on the jurisdictional point. The District Court’s order broadly

contemplates “[a]ll fact discovery . . . be[ing] completed” in federal court as opposed to

arbitration.10 So the District Court’s order denying a protective order effectively denies

ModivCare’s pending motion to compel arbitration because the Court is allowing the

litigation to proceed in full, without first deciding whether Sarah Car Care’s claims must

be arbitrated.11

That ModivCare’s motion for a protective order was brought pursuant to Rule

26(c)—a discovery rule—rather than § 3 of the FAA—concerning motions to stay

proceedings involving arbitrable issues—does not change our conclusion. Courts have

recognized appellate jurisdiction over motions that do not explicitly invoke § 3 of the

FAA when a movant seeks the relief provided by the statute—namely, enforcement of an

8 Coinbase, 143 S. Ct. at 1919. 9 Henry ex rel. BSC Ventures Holdings, Inc. Emp. Stock Ownership Plan v. Wilmington Tr.,

(3d Cir. 2023) (citation omitted).

. 11 See Corpman v. Prudential-Bache Secs., Inc.,

(3d Cir. 1990) (per curiam) (concluding jurisdiction existed over a district court’s order vacating a stay of trial proceedings and reinstating a trial calendar because the vacatur “is in essence an order refusing to stay an action under section 3 of the [FAA]”).

4 arbitration agreement.12 As in those cases, ModivCare’s motion for a protective order

invoked the arbitration agreement between the parties and sought relief narrowly tailored

to ModivCare’s right to arbitrate under § 3 of the FAA: a decision on its motion to

compel and, in the meantime, relief from full discovery in federal court.

We are not persuaded by Sarah Car Care’s argument that ModivCare’s appeal is

untimely. Sarah Car Care claims that if we assume an order to commence discovery

effectively denied ModivCare’s motion to compel, ModivCare should have appealed the

Rule 16 order calling for initial disclosures, a discovery plan, and substantial discovery.

But the denial of the protective order—refusing to stay discovery—closed off any

possibility that the motion to compel arbitration would be decided. The Rule 16 order did

not have the same effect: ModivCare requested clarification about its discovery

obligations and requested an adjournment of the Rule 16 conference.

We conclude that the combined effect of denying ModivCare’s motion for a

protective order to stay discovery and deferring indefinitely ModivCare’s motion to

12 See Wilmington Tr.,

(holding motion to dismiss immediately appealable even though it did not invoke § 3 of the FAA because it was “substantively an order denying a motion to compel”); Pre-Paid Legal Servs., Inc. v. Cahill,

(10th Cir. 2015) (holding motion to lift stay immediately appealable even though movant did not do so pursuant to § 3); see also Bacon v. Avis Budget Grp., Inc.,

(3d Cir. 2020) (examining jurisdiction over a district court order by looking to the “caption and relief requested in the underlying motion” and the “label and the operative terms of the district court’s order” (citation omitted)).

5 compel arbitration resulted in the latter being effectively denied. Thus, the denial of the

protective order is immediately appealable under the FAA.

Even so, it is entirely premature for our Court to pass on the validity of refusing to

compel Sarah Car Care to arbitrate its claims pursuant to the transportation services

agreement. ModivCare’s actual motion to compel remains pending and without further

clarification, the scope and applicability of the District Court’s order effectively denying

ModivCare’s motion to compel is unclear. Requiring the parties to undergo full discovery

without a clear decision regarding the motion to compel may erase the “benefits of

arbitration” such as “efficiency, less expense, less intrusive discovery, and the like”13 that

ModivCare claims the parties contracted for. Although the District Court effectively

denied the motion to compel arbitration, we will provide it the opportunity to fully

address the motion in the first instance.

Therefore, to ensure effective review and allow the District Court to provide

reasoned analysis, we will vacate the District Court’s denial of a protective order and

remand with instructions that the District Court decide ModivCare’s pending motion to

compel. The Court may engage in limited discovery, to the extent it is necessary, on the

arbitrability issue.

13 Coinbase, 143 S. Ct. at 1921.

6