How later opinions annotate it (1 example)
- on other grounds
MS Deciler Service Corp. v. Franklin, 177 F.3d 942, 947 (11th Cir. 1999), abrogated on other grounds by Arthur Andersen, 556 U.S. at 631.
— RUAG Ammotec GmbH v. Archon Firearms, 538 P.3d 428 (Nev. 2023)
Equitable estoppel permits a non-signatory to compel arbitration when the signatory alleges substantially interdependent and concerted misconduct by both the non-signatory and one or more signatories.
A non-signatory to a vehicle purchase agreement seeks to compel arbitration under the Federal Arbitration Act. The consumer alleges that the non-signatory conspired with the signatory dealership to defraud her by charging an excessive fee for a service contract. The court holds that equitable estoppel applies when a non-signatory's claims are intimately founded in and intertwined with the obligations of the contract, or when the signatory raises allegations of substantially interdependent and concerted misconduct by both the non-signatory and one or more signatories. Because the consumer's fraud and conspiracy claims depend on the contractual service charge and allege collusive behavior between the parties, she is estopped from avoiding arbitration.
At page 947 Exceptions allowing nonsignatories to compel arbitration126 citing cases“application of equitable estoppel is warranted ... when the signatory to the contract containing the arbitration clause raises allegations of ... substantially interdependent and concerted misconduct by both the nonsignatory and one or more of the signatories to the contract.”
- Goldman v. KPMG, LLP, 173 Cal. App. 4th 209 (Cal. Ct. App. 2009).published Co. (5th Cir. 2006) 462 F.3d 384, 398 (Brown); but see MS Dealer, supra, 177 F.3d at p. 946 [de novo review of district court’s decision denying petition to compel arbitration on ground MS Dealer was not a signatory to the arbitration agre…
- Gunson v. BMO Harris Bank, N.A., 43 F. Supp. 3d 1396 (S.D. Fla. 2014).published See MS Dealer, 177 F.3d at 948 (“Although [plaintiff] does not allege that the service contract has been violated or breached in any way, each of her fraud and conspiracy claims depends entirely on her contractual obligation to pay $990.00…
- PRM Energy Sys., Inc. v. Primenergy, L.L.C., 592 F.3d 830 (8th Cir. 2010).published ([A]pplication of equitable -7- estoppel is warranted . . . when the signatory to the contract containing the arbitration clause raises allegations of . . . substantially interdependent and concerted misconduct by both…)
- United States ex rel. Coastal Roofing Co. v. P. Browne & Assocs., Inc., 585 F. Supp. 2d 708 (D.S.C. 2007).published(To allow [a plaintiff] to claim the benefit of the contract and simultaneously avoid its burdens would both disregard equity and contravene the purposes underlying the enactment of the Arbitration Act.)
- Meyer v. Wmco-gp, LLC, 211 S.W.3d 302 (Tex. 2006).published MS Dealer, 177 F.3d at 944 (''[The] arbitration clause[] provid[es] that ‘buyer hereby acknowledges and agrees that all disputes and controversies of every kind and nature between buyer and Jim Burke Motors, Inc. arising out of or in conne…
- Holden v. Deloitte & Touche LLP, 390 F. Supp. 2d 752 (N.D. Ill. 2005).published ([U]nder agency or related principles, the relationship between the signatory and non-signatory defendants is sufficiently close that only by permitting the non-signatory to invoke arbitration may evisceration of the un…)
- Mauricio Usme v. CMI Leisure Mgmt., Inc., 106 F.4th 1079 (11th Cir. 2024).published (When each of a signatory’s claims against a nonsignatory ‘makes reference to’ or ‘presumes the existence of’ the written agreement, the signatory’s claims ‘arise out of and relate directly to the written agreement. . .…)
- Mance v. Mercedes-Benz USA, 901 F. Supp. 2d 1147 (N.D. Cal. 2012).published Corp. v. Franklin, 177 F.3d 942 , 947 (11th Cir.1999) and discussing federal appellate caselaw).
- LaSonde v. CitiFinancial Mortg. Co., 614 S.E.2d 224 (Ga. Ct. App. 2005).published (When each of a signatory’s claims against a nonsignatory makes reference to or presumes the existence of the written agreement, the signatory’s claims arise out of and relate directly to the written agreement, and arbi…)
- Byron Chemaly v. Eddie Lampert, 174 F.4th 843 (11th Cir. 2026).publishedCorp., 177 F.3d at 947.
Show 108 more citing cases
- Sheet Metal Workers Local No. 20 Welfare & Benefit Fund; & Indiana Carpenters Welfare Fund v. CVS Pharmacy, Inc.; Plumbers Welfare Fund, Local 130 v. CVS Pharmacy, Inc., No. 1:16-cv-00046 (D.R.I. Feb. 3, 2026).As discussed , 210 F.3d 524, 527 (5th Cir. 2000) (quoting , 177 F.3d 942 , 947 (11th Cir. 1999)). 22 Under the “concerted misconduct” test, “equitable estoppel is warranted when the signatory to the contract containing an arbitration claus…
- Anderson v. Wells Fargo Clearing Svcs., 581 P.3d 853 (Kan. Ct. App. 2025).unpublishedCo., 278 Kan. 777, 793 , 107 P.3d 1219 (2005); MS Dealer Service Corp. v. Franklin, 177 F.3d 942, 947 (11th Cir. 1999) (citing Boyd v. Homes of Legend, Inc., 981 F. Supp. 1423, 1429 [M.D.
- Munoz v. Conduent State & Local Solutions, No. 24-2044 (10th Cir. Mar. 13, 2025).unpublished Reeves, 17 F.4th at 1012-15. 23 Appellate Case: 24-2044 Document: 52-1 Date Filed: 03/13/2025 Page: 24 Although the Cardholders also alleged facts specific to Conduent, see, e.g., id. at 84, ¶¶ 29-31, the amended complaint is replete with…
- Santiago v. Neno Rsch. LLC, No. 8:24-cv-01330, 2024 WL 4625783 (M.D. Fla. Oct. 30, 2024). Id. at 944.
- Prof'l Consulting Servs. S.A.S. v. Inmigracion Pro, LLC, No. 1:23-cv-22055 (S.D. Fla. Sept. 5, 2024). Fla. June 8, 2020) (Williams, J.) (“The second exception regarding the doctrine of equitable estoppel applies here as well because Plaintiff has alleged ‘substantially interdependent and concerted misconduct by both the nonsignatory [Feads…
- NCMIC Ins. Co. v. Allied Professionals Ins. Co., 110 F.4th 1072 (8th Cir. 2024).published“equitable estoppel allows a nonsignatory to compel arbitration”
- Papaconstantinou-Bauer v. Jackson Hosp. & Clinic, Inc., No. 2:22-cv-00178 (M.D. Ala. Mar. 18, 2024).The application of the intertwining doctrine “is warranted ... when the signatory [to the contract containing the arbitration clause] raises allegations of ... substantially interdependent and concerted misconduct by both the nonsignatory…
- RUAG Ammotec GmbH v. Archon Firearms, 538 P.3d 428 (Nev. 2023).publishedAlthough used in a situation where a nonsignatory sought to compel a signatory to arbitration, we adopt the test outlined in MS Deciler Service Corp. v. Franklin, 177 F.3d 942, 947 (11th Cir. 1999), abrogated on other grounds by Arthur And…
- Holder v. Bacus Foods Corp., No. 2:23-cv-00763 (D. Ariz. Sept. 1, 2023). In an 21 influential opinion, the Eleventh Circuit explained the theory applies in two circumstances: 22 first, when the signatory “must rely on the terms of . . . [,] makes reference to[,] or presumes 23 the existence of” the agreement co…
- Moore v. A-team Trappers, L.L.C., No. 0:23-cv-60441 (S.D. Fla. July 28, 2023).Corp., 177 F.3d at 947.
- Barmby v. Ourisman Chevrolet Co., No. 8:22-cv-02312 (D. Md. July 14, 2023).Corp., 177 F.3d at 947).
- JES Farms P'ship v. Indigo Ag Inc., No. 4:23-cv-04023 (D.S.D. June 26, 2023). Corp., 177 F.3d at 947).
- DiTucci v. Ashby, No. 21-4120 (10th Cir. Jan. 25, 2023).unpublished Corp. v. Summers, 849 N.E.2d 544, 547 (Ind. 2006) (internal quotation marks omitted). 5 Reed also endorsed another federal-court-developed theory of equitable estoppel—not relied upon by Defendants here—that “‘applies when the signatory to…
- Carson v. Home Depot, Inc., No. 1:21-cv-04715 (N.D. Ga. July 26, 2022). By extending enforcement rights to these nonsignatories, equitable estoppel ensures that arbitration proceedings between the two signatories are not rendered meaningless and the federal policy in favor of arbitration is not effectively thw…
- AtriCure, Inc. v. Jian Meng, 12 F.4th 516 (6th Cir. 2021).published They assert that estoppel applies whenever a plaintiff’s statutory or tort claim “makes reference to” a contract, MS Dealer, 177 F.3d at 947 (citation omitted), or is “intertwined” with the contract’s subject matter, Sourcing Unlimited, In…
- Jane Doe I v. Carmel Operator, LLC, 160 N.E.3d 518 (Ind. 2021).published Corp. v. Franklin, 177 F.3d 942, 947 (11th Cir. 1999)).
- Michael Lavigne v. Mark Addy, 967 F.3d 1110 (11th Cir. 2020).publishedHowever, it is not enough for a plaintiff’s allegations to rely “simply on the fact that an agreement exists”; the test is whether they “rely on or depend on ‘the terms of the written agreement.’” Id. at 551–52 (quoting MS Dealer, 177 F.3d…
- Kelly v. K12, Inc., No. 6:17-cv-00453 (E.D. Okla. July 10, 2020).“Application of equitable estoppel is warranted…when the signatory [to the contract containing the arbitration clause] raises allegations of substantially interdependent and concerted misconduct by both the nonsignatory and one or more of…
- CCC Intelligent Solutions Inc v. Tractable Inc., No. 1:18-cv-07246 (N.D. Ill. May 7, 2019).Id., citing MS Dealer Service Corp. v. Franklin, 177 F.3d 942, 947 (11th Cir. 1999).
- Blue Water Bay At Ctr. Hill, LLC v. Larry J. Hasty, No. M2016-02382-COA-R3-CV, 2017 WL 5665410 (Tenn. Ct. App. Nov. 27, 2017).published Corp., 177 F.3d at 947 (citation omitted).
- Donald White v. Sunoco Inc, 870 F.3d 257 (3d Cir. 2017).published First, “[e]quitable estoppel is warranted when the signatory to the contract containing the arbitration' clause raises allegations of concerted conduct by both the nonsignatory and one or more, of the signatories to the contract.” Armas, 8…
- Silverwood Partners, LLC v. Wellness Partners, LLC, 80 N.E.3d 355 (Mass. App. Ct. 2017).published Corp., 177 F.3d at 947] for applying the intertwined-claims doctrine"). 11 In any event, Silverwood does in fact substantially rely on its contracts with McCoy and Burgmaier in its allegations of misconduct by Whipstitch.
- Guarantee Trust Life Ins. Co. v. Platinum Supplemental Ins., Inc., 2016 IL App (1st) 161612.publishedJan. 1, 2016). ¶ 42 Instead, Mr. Briggs argues we should adopt the following definition of equitable estoppel that has been accepted in several federal courts to allow a nonsignatory to compel the arbitration of claims brought by a signato…
- Schneider Elec. Bldgs. Critical Sys., Inc. v. W. Sur. Co., 149 A.3d 778 (Md. Ct. Spec. App. 2016).published Griffin & Co. v. Beach Club II Homeowners Assoc., 384 F.3d 157 , 160 n.1 (4th Cir. 2004); Int’l Paper Co. v. Schwabedissen Maschinen & Anlagen GMBH, 206 F.3d 411 , 417 n.4 (4th Cir. 2000); MS Dealer Service Corp. v. Franklin, 177 F.3d 942,…
- Meister v. Stout, 2015 COA 60, 353 P.3d 916.published Servs., 171 F.Supp.2d at 1166 (citing MS Dealer Serv., 177 F.3d at 947).
- In re Wholesale Grocery Prods. Antitrust Litig., 97 F. Supp. 3d 1101 (D. Minn. 2015).published See PRM Energy Sys., 592 F.3d at 835 (referencing the "close relationship or agency theory recognized in CD Partners"); MS Dealer, 177 F.3d at 948 (stating that the court's finding of equitable estoppel made it unnecessary to determine whe…
- Pagan v. Integrity Solution Servs., Inc., 42 F. Supp. 3d 932 (E.D. Wis. 2014).published Corp. v. Franklin, 177 F.3d 942, 947 (11th Cir.1999).] Thus, “[w]hen each of a signatory’s claims against a nonsignatory ‘makes reference to’ or ‘presumes the existence of the written agreement, the signatory’s claims arise out of and rela…
- Rapp v. Green Tree Servicing, LLC, 302 F.R.D. 505 (D. Minn. 2014).published Corp., 177 F.3d at 947 (quotation omitted).
- Wallace v. Rick Case Auto, Inc., 979 F. Supp. 2d 1343 (N.D. Ga. 2013).published Corp., 177 F.3d at 947).
- In re Titanium Dioxide Antitrust Litig., 962 F. Supp. 2d 840 (D. Md. 2013).published As the United States Court of Appeals for the Eleventh Circuit has reasoned, equitable estoppel should bar the signatory from pursuing litigation when concerted misconduct is alleged; “[o]therwise, the arbitration proceedings [between the…
- King Cole Foods, Inc. v. SuperValu, Inc., 707 F.3d 917 (8th Cir. 2013).published Appellees’ Br. 31-32 (citing MS Dealer, 177 F.3d at 947).
- In re Rolland, 96 S.W.3d 339 (Tex. App.—Austin 2001).published
- Becker ex rel. Anne S. Becker Charitable Remainder Unitrust v. Davis, 491 F.3d 1292 (11th Cir. 2007).published
- Donaldson Co. v. Burroughs Diesel, Inc., 581 F.3d 726 (8th Cir. 2009).published
- Autonation Fin. Servs. Corp. v. Arain, 592 S.E.2d 96 (Ga. Ct. App. 2003).published
- Donaldson Co. v. Burroughs Diesel, Inc., 573 F.3d 578 (8th Cir. 2009).published
- Barbara Elizabeth Lawson v. Life of the South Ins. Co., 648 F.3d 1166 (11th Cir. 2011).published
- Case Handyman & Remodeling Servs., LLC v. Schuele, 959 A.2d 833 (Md. Ct. Spec. App. 2008).published
- Metalclad Corp. v. Ventana Env't Organizational P'ship, 109 Cal. App. 4th 1705 (Cal. Ct. App. 2003).published
- Grigson v. Creative Artists Agency, L.L.C., 210 F.3d 524 (5th Cir. 2000).published
- Hill v. G E Power Sys., Inc., 282 F.3d 343 (5th Cir. 2002).published
- Palmer Ventures LLC v. Deutsche Bank AG, 254 F. App'x 426 (5th Cir. 2007).unpublished
- Triple I: Int'l Investments, Inc. v. Fielding, 290 F. App'x 229 (11th Cir. 2008).unpublished
- Aggarao v. Mol Ship Mgmt. Co., 675 F.3d 355 (4th Cir. 2012).published
- Milton Escobal v. Celebration Cruise Operator, Inc., 482 F. App'x 475 (11th Cir. 2012).unpublished
- Bahamas Sales Associate, LLC v. Donald Cameron Byers, 701 F.3d 1335 (11th Cir. 2012).published
- Mark F. Bailey v. ERG Enter., LP, 705 F.3d 1311 (11th Cir. 2013).published
- Jessica Kramer v. Toyota Motor Corp., 705 F.3d 1122 (9th Cir. 2013).published
- In re Merrill Lynch Trust Co. FSB, 235 S.W.3d 185 (Tex. 2007).published
- Onvoy, Inc. v. SHAL, LLC., 669 N.W.2d 344 (Minn. 2003).published
- Pennzoil Co. v. Arnold Oil Co., 30 S.W.3d 494 (Tex. App.—San Antonio 2000).published
- AXA Equitable Life Ins. v. Infinity Fin. Grp., LLC, 608 F. Supp. 2d 1330 (S.D. Fla. 2009).published
- Chastain v. Union Sec. Life Ins., 502 F. Supp. 2d 1072 (C.D. Cal. 2007).published
- Kolsky v. Jackson Square, LLC, 28 So. 3d 965 (Fla. 3d DCA 2010).published
- Koechli v. BIP Intern., Inc., 870 So. 2d 940 (Fla. 1st DCA 2004).published
- S. Energy Homes, Inc. v. Kennedy, 774 So. 2d 540 (Ala. 2000).published
- Parkerson v. Smith, 817 So. 2d 529 (Miss. 2002).published
- Westbard Apts., LLC v. Westwood Jt. Venture, LLC, 954 A.2d 470 (Md. Ct. Spec. App. 2008).published
- Schuele v. Case Handyman & Remodeling Servs., LLC, 989 A.2d 210 (Md. 2010).published
- Villanueva v. Barcroft, 822 F. Supp. 2d 726 (N.D. Ohio 2011).published
- Kingsley Capital Mgmt., LLC v. S.L.Y., 820 F. Supp. 2d 1011 (D. Ariz. 2011).published
- All. Title Co. v. Boucher, 127 Cal. App. 4th 262 (Cal. Ct. App. 2005).published
- Benasra v. Marciano, 92 Cal. App. 4th 987 (Cal. Ct. App. 2001).published
- TICHANEN v. Harris & Harris, Ltd., 461 F. Supp. 2d 863 (E.D. Wis. 2006).published
- Gersten v. Intrinsic Tech., LLP, 442 F. Supp. 2d 573 (N.D. Ill. 2006).published
- Primerica Fin. Servs., Inc. v. Coley, 192 F. Supp. 2d 655 (N.D. Miss. 2002).published
- Orcutt v. Kettering Radiologists, Inc., 199 F. Supp. 2d 746 (S.D. Ohio 2002).published
- Jureczki v. Banc One Texas, N.A., 252 F. Supp. 2d 368 (S.D. Tex. 2003).published
- Goer v. Jasco Indus., Inc., 395 F. Supp. 2d 308 (D.S.C. 2005).published
- Hoffman v. Deloitte & Touche, LLP, 143 F. Supp. 2d 995 (N.D. Ill. 2001).published
- German Am. Fin. Advisors & Trust Co. v. Reed, 969 N.E.2d 621 (Ind. Ct. App. 2012).published
- In re Managed Care Litig., 132 F. Supp. 2d 989 (S.D. Fla. 2000).published
- High Sierra Energy, L.P. v. Hull, 2011 OK CIV APP 77, 259 P.3d 902.published
- Interested Underwriters at Lloyd's v. Sebastian, 508 F. Supp. 2d 1243 (N.D. Ga. 2007).published
- Patriot Mfg., Inc. v. Dixon, 399 F. Supp. 2d 1298 (S.D. Ala. 2005).published
- Williams v. Orentlicher, 939 N.E.2d 663 (Ind. Ct. App. 2010).published
- Gatx Mgmt. Servs., LLC v. Weakland, 171 F. Supp. 2d 1159 (D. Colo. 2001).published
- Marshall, Amaya & Anton v. Arnold-Dobal, 76 So. 3d 998 (Fla. 3d DCA 2011).published
- In re Currency Conversion Fee Antitrust Litig., 361 F. Supp. 2d 237 (S.D.N.Y. 2005).published
- Davis Vision, Inc. v. Maryland Optometric Ass'n, 401 F. Supp. 2d 465 (D. Md. 2005).published
- Adkins v. Labor Ready, Inc., 185 F. Supp. 2d 628 (S.D. W. Va. 2001).published
- Tattoo Art, Inc. v. TAT Int'l, LLC, 711 F. Supp. 2d 645 (E.D. Va. 2010).published
- In re Universal Serv. Fund Tel. Billing Practices Litig., 300 F. Supp. 2d 1107 (D. Kan. 2003).published
- Horanburg v. Felter, 2004-NMCA-121, 99 P.3d 685.published
- Hemphill v. Ford Motor Co., 206 P.3d 1 (Kan. Ct. App. 2009).published
- German Am. Fin. Advisors & Trust Co. v. Dennis M. Reed, No. 19A01-1110-PL-428 (Ind. Ct. App. June 22, 2012).published
- Mid-South Maint. Inc. v. Paychex Inc., No. W2014-02329-COA-R3-CV, 2015 WL 4880855 (Tenn. Ct. App. Aug. 14, 2015).published
- Uzoamaka O. Akpele v. Pac. Life Ins. Co., 646 F. App'x 908 (11th Cir. 2016).unpublished
- I Sports v. Img Worldwide, Inc., 813 N.E.2d 4 (Ohio Ct. App. 8th Dist. 2004).published
- Doctor's Assocs. Inc. v. Burr, 226 F. Supp. 3d 106 (D. Conn. 2016).published
- Kelley v. Eide Bailly, LLP (In re Petters Co.), 480 B.R. 346 (Bankr. D. Minn. 2012).published
- Ramasamy v. Essar Global Ltd., 825 F. Supp. 2d 466 (S.D.N.Y. 2011).published
- Thi of New Mexico at Vida Encantada, LLC v. Lovato, 848 F. Supp. 2d 1309 (D.N.M. 2012).published
- Lucas v. Hertz Corp., 875 F. Supp. 2d 991 (N.D. Cal. 2012).published
- In re Zappos.com, Inc., 893 F. Supp. 2d 1058 (D. Nev. 2012).published
- Adkins v. Labor Ready, Inc., 205 F.R.D. 460 (S.D. W. Va. 2001).published
- R&L Carriers, Inc. v. Robinson, No. 8:22-cv-02473 (M.D. Fla. June 5, 2023).
- Liles v. Ginn-La West End, Ltd., 631 F.3d 1242 (11th Cir. 2011).published
- Kenisha Brantley Greg Brantley v. Repub. Mortg. Ins. Co., 424 F.3d 392 (4th Cir. 2005).published
- Liedtke v. Frank, 437 F. Supp. 2d 696 (N.D. Ohio 2006).published
- Alton J. Meyer v. Wmco-Gp, LLC, No. 04-0252 (Tex. Dec. 22, 2006).published
- Robert A. Schreiber v. Ally Fin. Inc., 634 F. App'x 263 (11th Cir. 2015).unpublished
- Marcus v. Florida Bagels, LLC, 112 So. 3d 631 (Fla. 4th DCA 2013).published
- Mims v. Global Credit & Collection Corp., 803 F. Supp. 2d 1349 (S.D. Fla. 2011).published
- O'Brien & Assocs. Co., L.P.A. v. E. Worthington, L.L.C., 2023-Ohio-3494.published
- Kenner City v. Certain Underwriters at Lloyd's London, No. 2:22-cv-02167, 2022 WL 16961130 (E.D. La. Nov. 16, 2022).
- Certain Underwriters at Lloyd's London v. Belmont Commons LLC, No. 2:22-cv-03874, 2023 WL 105337 (E.D. La. Jan. 4, 2023).
- Reeves v. Enter. Prods. Partners, LP, No. 4:19-cv-00570 (N.D. Okla. Feb. 10, 2020).
At page 948 Claims depending on contractual obligations and inseparable facts26 citing casesAlthough Franklin does not allege that the service contract has been violated or breached in any way, each of her fraud and conspiracy claims depends entirely upon her contractual obligation to pay $990.00 for the service contract.
- Goldman v. KPMG, LLP, 173 Cal. App. 4th 209 (Cal. Ct. App. 2009).published Co. (5th Cir. 2006) 462 F.3d 384, 398 (Brown); but see MS Dealer, supra, 177 F.3d at p. 946 [de novo review of district court’s decision denying petition to compel arbitration on ground MS Dealer was not a signatory to the arbitration agre…
- Gunson v. BMO Harris Bank, N.A., 43 F. Supp. 3d 1396 (S.D. Fla. 2014).published (Although [plaintiff] does not allege that the service contract has been violated or breached in any way, each of her fraud and conspiracy claims depends entirely on her contractual obligation to pay $990.00 for the ser…)
- Riley v. Bmo Harris Bank, N.A., 61 F. Supp. 3d 92 (D.D.C. 2014).published(Although Franklin does not allege that the service contract has been violated or breached in any way, each of her fraud and conspiracy claims depends entirely upon her contractual obligation to pay $990.00 for the serv…)
- PRM Energy Sys., Inc. v. Primenergy, L.L.C., 592 F.3d 830 (8th Cir. 2010).published MS Dealer, 177 F.3d at 947 (“[A]pplication of equitable -7- estoppel is warranted . . . when the signatory to the contract containing the arbitration clause raises allegations of . . . substantially interdependent and concerted misconduct…
- Munoz v. Conduent State & Local Solutions, No. 24-2044 (10th Cir. Mar. 13, 2025).unpublished Reeves, 17 F.4th at 1012-15. 23 Appellate Case: 24-2044 Document: 52-1 Date Filed: 03/13/2025 Page: 24 Although the Cardholders also alleged facts specific to Conduent, see, e.g., id. at 84, ¶¶ 29-31, the amended complaint is replete with…
- Santiago v. Neno Rsch. LLC, No. 8:24-cv-01330, 2024 WL 4625783 (M.D. Fla. Oct. 30, 2024). Id. at 944.
- Prof'l Consulting Servs. S.A.S. v. Inmigracion Pro, LLC, No. 1:23-cv-22055 (S.D. Fla. Sept. 5, 2024). Fla. June 8, 2020) (Williams, J.) (“The second exception regarding the doctrine of equitable estoppel applies here as well because Plaintiff has alleged ‘substantially interdependent and concerted misconduct by both the nonsignatory [Feads…
- Hatch v. Optum Servs. Inc, No. 4:21-cv-01097 (E.D. Ark. Oct. 11, 2022). The plaintiff in the case asserted that the signatory and non-signatory defendants “improperly cooperated, conspired and otherwise colluded . . . in a scheme to defraud her . . . .” Id. at 945. not be automatically fatal to Optum’s positio…
- Carson v. Home Depot, Inc., No. 1:21-cv-04715 (N.D. Ga. July 26, 2022). By extending enforcement rights to these nonsignatories, equitable estoppel ensures that arbitration proceedings between the two signatories are not rendered meaningless and the federal policy in favor of arbitration is not effectively thw…
- In re Wholesale Grocery Prods. Antitrust Litig., 97 F. Supp. 3d 1101 (D. Minn. 2015).published (stating that the court's finding of equitable estoppel made it unnecessary to determine whether the "agency theory” applied)
Show 13 more citing cases
- Rapp v. Green Tree Servicing, LLC, 302 F.R.D. 505 (D. Minn. 2014).published Corp., 177 F.3d at 947 (quotation omitted).
- Becker ex rel. Anne S. Becker Charitable Remainder Unitrust v. Davis, 491 F.3d 1292 (11th Cir. 2007).published
- Donaldson Co. v. Burroughs Diesel, Inc., 581 F.3d 726 (8th Cir. 2009).published
- Autonation Fin. Servs. Corp. v. Arain, 592 S.E.2d 96 (Ga. Ct. App. 2003).published
- Donaldson Co. v. Burroughs Diesel, Inc., 573 F.3d 578 (8th Cir. 2009).published
- Metalclad Corp. v. Ventana Env't Organizational P'ship, 109 Cal. App. 4th 1705 (Cal. Ct. App. 2003).published
- AXA Equitable Life Ins. v. Infinity Fin. Grp., LLC, 608 F. Supp. 2d 1330 (S.D. Fla. 2009).published
- Westbard Apts., LLC v. Westwood Jt. Venture, LLC, 954 A.2d 470 (Md. Ct. Spec. App. 2008).published
- Physician Consortium Servs., LLC vs Molina Healthcare, Inc., 414 F. App'x 240 (11th Cir. 2011).unpublished
- Lenox MacLaren Surgical Corp. v. Medtronic, Inc., 449 F. App'x 704 (10th Cir. 2011).unpublished
- JLM Indus., Inc. v. Stolt-Nielsen Sa, 387 F.3d 163 (2d Cir. 2004).published
- 26 Street Hosp., LLP v. Real Builders, Inc., 2016 ND 95, 879 N.W.2d 437.published
- Ordosgoitti v. Werner Enter., Inc., No. 8:20-cv-00421 (D. Neb. Mar. 24, 2022).
At page 944 Enforcing arbitration clauses in purchase agreements9 citing cases''[The] arbitration clause[] provid[es] that ‘buyer hereby acknowledges and agrees that all disputes and controversies of every kind and nature between buyer and Jim Burke Motors, Inc. arising out of or in connection with the purchase of this vehicle will be resolved by arbitration ....”'
- Meyer v. Wmco-gp, LLC, 211 S.W.3d 302 (Tex. 2006).published (''[The] arbitration clause[] provid[es] that ‘buyer hereby acknowledges and agrees that all disputes and controversies of every kind and nature between buyer and Jim Burke Motors, Inc. arising out of or in connection wi…)
- Santiago v. Neno Rsch. LLC, No. 8:24-cv-01330, 2024 WL 4625783 (M.D. Fla. Oct. 30, 2024). Id. at 944.
- Kroma Makeup EU, LLC v. Boldface Licensing + Branding, Inc., 845 F.3d 1351 (11th Cir. 2017).publishedThe Kardashians also contend that we are bound by our decision in MS Dealer Service Corp. v. Franklin, 177 F.3d 942, 944, 947-48 (11th Cir. 1999), which applied federal equitable estoppel to compel arbitration under an arbitration clause c…
- Becker ex rel. Anne S. Becker Charitable Remainder Unitrust v. Davis, 491 F.3d 1292 (11th Cir. 2007).published
- Donaldson Co. v. Burroughs Diesel, Inc., 581 F.3d 726 (8th Cir. 2009).published
- Autonation Fin. Servs. Corp. v. Arain, 592 S.E.2d 96 (Ga. Ct. App. 2003).published
- Donaldson Co. v. Burroughs Diesel, Inc., 573 F.3d 578 (8th Cir. 2009).published
At page 946 Determining indispensability under rule 19 of civil procedure9 citing casesde novo review of district court’s decision denying petition to compel arbitration on ground MS Dealer was not a signatory to the arbitration agreement
- Goldman v. KPMG, LLP, 173 Cal. App. 4th 209 (Cal. Ct. App. 2009).published (de novo review of district court’s decision denying petition to compel arbitration on ground MS Dealer was not a signatory to the arbitration agreement)
- Bridas S.A.P.I.C. v. Gov't of Turkmenistan, 345 F.3d 347 (5th Cir. 2003).published
- Barbara Elizabeth Lawson v. Life of the South Ins. Co., 648 F.3d 1166 (11th Cir. 2011).published
- Case Handyman & Remodeling Servs., LLC v. Schuele, 959 A.2d 833 (Md. Ct. Spec. App. 2008).published
- Metalclad Corp. v. Ventana Env't Organizational P'ship, 109 Cal. App. 4th 1705 (Cal. Ct. App. 2003).published
- In re Universal Serv. Fund Tel. Billing Practices Litig., 320 F. Supp. 2d 1135 (D. Kan. 2004).published
- PaineWebber, Inc. v. Cohen, No. 01-3228 (6th Cir. Dec. 27, 2001).published
At page 945 Determining subject matter jurisdiction for arbitration petition3 citing casesIn its petition to compel arbitration, the [plaintiff] alleges, and [the defendant] does not dispute, that ... the amount in controversy exceeds $75,000. ‘That plainly satisfies 28 U.S.C. § 1332’s demands.’
- Household Bank v. JFS Grp., 191 F. Supp. 2d 1292 (M.D. Ala. 2002).published(In its petition to compel arbitration, the [plaintiff] alleges, and [the defendant] does not dispute, that ... the amount in controversy exceeds $75,000. ‘That plainly satisfies 28 U.S.C. § 1332’s demands.’)
- Hatch v. Optum Servs. Inc, No. 4:21-cv-01097 (E.D. Ark. Oct. 11, 2022). The plaintiff in the case asserted that the signatory and non-signatory defendants “improperly cooperated, conspired and otherwise colluded . . . in a scheme to defraud her . . . .” Id. at 945. not be automatically fatal to Optum’s positio…
- Pineda v. Oceania Cruises, Inc., 283 F. Supp. 3d 1307 (S.D. Fla. 2017).published(plaintiff filed suit against signatory car seller as well as nonsignatory cardealership operator and credit corporation, alleging all three colluded to defraud her regarding her car's service contract)
At page 1004 cited at this page2 citing cases
- In re Rolland, 96 S.W.3d 339 (Tex. App.—Austin 2001).published
At page 1075 Determining inseparability of related claims in complaint1 citing case
- Becker v. Delek US Energy, Inc., 493 F. Supp. 3d 644 (M.D. Tenn. 2020).publishedIn considering whether either of these circumstances existed in that case, the court looked to the allegations in the complaint, based on which the court found that it was “clear” that the plaintiff’s claims against both Rainey and Orcrist…
Other citing cases
- Esther Yang v. Dongwon Indus. Co., 876 F.3d 996 (9th Cir. 2017).published
v.
Sharon D. FRANKLIN, Defendant-Appellee
MS Dealer Service Corporation (“MS Dealer”) appeals from the dismissal of its petition to compel Sharon Franklin to participate in arbitration pursuant to the Federal Arbitration Act, 9 U.S.C. §§ 1-16. We reverse.
I.
In May 1996 Sharon Franklin and Jim Burke Motors, Inc. (“Jim Burke”) executed a “Buyers Order,” whereby Franklin contractually agreed to purchase a vehicle from Jim Burke. The Buyers Order incorporates by reference a “Retail Installment Contract,” in which Franklin is charged $990.00 for a service contract through MS Dealer. The Buyers Order contains an arbitration clause, providing that “BUYER HEREBY ACKNOWLEDGES AND AGREES THAT ALL DISPUTES AND CONTROVERSIES OF EVERY KIND AND NATURE BETWEEN BUYER AND JIM BURKE MOTORS, INC. ARISING OUT OF OR IN CONNECTION WITH THE PURCHASE OF THIS VEHICLE WILL BE RESOLVED BY ARBITRATION.... ” Buyers Order at 1. The Buyers Order also provides that “[a]ll disputes and controversies of every kind and nature between the parties hereto arising out of or in connection with this contract ... shall be submitted to binding arbitration pursuant to the provisions of the Federal Arbitration Act....” Id. at 2. This includes “any claim alleging fraud in fact [or] fraud in the inducement.” Id. MS Dealer was not a signatory to either the Buyers Order or the Retail Installment Contract.
After taking possession of the vehicle, Franklin discovered several defects in the car. She then filed suit in Alabama state court against Jim Burke, MS Dealer and Chrysler Credit Corporation (the assignee of the Retail Installment Contract), asserting claims for breach of contract, breach of[*945] warranty, fraud and conspiracy. All of her claims against MS Dealer arise out of the $990.00 charge identified in the Retail Installment Contract for the service contract. According to her complaint, MS Dealer improperly cooperated, conspired and otherwise colluded with Jim Burke and Chrysler Credit Corporation in a scheme to defraud her in connection with the purchase of the service contract. She alleges that the $990.00 charge was excessive and that the defendants conspired to charge this excessive amount so that they could each profit from the sale of the service contract by divvying up the excess amount. She also alleges that this excessive charge required her to borrow an inflated amount of money in order to purchase the car and, thus, incur excessive interest expenses on her car loan.
Relying on the Federal Arbitration Act (“FAA”) and the arbitration clause in the Buyers Order, MS Dealer filed the instant petition in federal district court to compel Franklin to arbitrate her claims against it. [1] The district court originally granted the petition. On reconsideration, however, the district court dismissed the petition on the ground that MS Dealer was not a signatory to the Buyers Order and, thus, did not have standing to compel arbitration. MS Dealer appeals.
II.
As an initial matter, Franklin contends that the district court lacked subject matter jurisdiction to consider MS Dealer’s petition to compel arbitration. We disagree.
The parties agree that “there must be diversity of citizenship or some other independent basis for federal jurisdiction before [an order compelling arbitration] can issue.” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 25 n. 32, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). Here, MS Dealer premised federal jurisdiction on diversity of citizenship between itself and Franklin. See 28 U.S.C. § 1332. In its petition to compel arbitration, MS Dealer alleges, and Franklin does not dispute, that (1) the petitioner, MS Dealer, is a corporation organized under the laws of Mississippi and having its principal place of business in Mississippi, (2) the respondent, Franklin, is a citizen of Alabama, and (3) the amount in controversy exceeds $75,000.00. “That plainly satisfies 28 U.S.C. § 1332’s demands.” First Franklin Fin. Corp. v. McCollum, 144 F.3d 1362, 1363 (11th Cir.1998).
Notwithstanding this complete diversity between the parties named in the petition, Franklin contends that diversity jurisdiction is lacking because Jim Burke is named as a co-defendant in the state court action and the state court action is not removable due to Jim Burke’s Alabama citizenship. “We disagree. As a matter of both § 1332’s language and common sense, whether another action is removable or not does not affect jurisdiction in this, an independent action” to compel arbitration. Id. While acknowledging that the McCollum court has already specifically considered and rejected the argument Franklin raises here, [2] she asks us to modify or reverse that case. We decline that request. See Chambers v. Thompson, 150 F.3d 1324, 1326 (11th Cir.1998) (‘We are bound to follow a prior panel or en banc holding, except where that holding has been overruled or undermined to the point[*946] of abrogation by a subsequent en banc or Supreme Court decision.”).
Alternatively, Franklin contends that diversity jurisdiction is lacking because Jim Burke is an “indispensable party,” as that term is defined in Rule 19 of the Federal Rules of Civil Procedure, to the petition to compel arbitration. See Doctor’s Assocs., Inc. v. Distajo, 66 F.3d 438, 445 (2d Cir.1995) (“As with any federal action, diversity of citizenship is determined by reference to the parties named in the proceeding before the district court, as well as any indispensable parties who must be joined pursuant to Rule 19 of the Federal Rules of Civil Procedure. Where joinder of a party would destroy subject matter jurisdiction, the court must dismiss the action if that party is ‘indispensable’ to the litigation.”). She bases this argument on the fact that her state court complaint identifies Jim Burke and MS Dealer as coconspirators and joint tortfeasors. However, that mere fact does not render Jim Burke an indispensable party. See Temple v. Synthes Corp., 498 U.S. 5, 7, 111 S.Ct. 315, 112 L.Ed.2d 263 (1990) (per curiam) (“It has long been the rule that it is not necessary for all joint tortfeasors to be named as defendants in a single lawsuit. ... The Advisory Committee Notes to Rule 19(a) explicitly state that ‘a tort-feasor with the usual “joint-and-several” liability is merely a permissive party to an action against another with like liability.’ ” (citations omitted)); Herpich v. Wallace, 430 F.2d 792, 817 (5th Cir.1970) [3] (“Rule 19, as amended in 1966, was not meant to unsettle the well-established authority to the effect that joint tortfeasors or cocon-spirators are not persons whose absence from a case will result in dismissal for non-joinder.”); see also Pasco Int’l (London) Ltd. v. Stenograph Corp., 637 F.2d 496, 501 n. 10 (7th Cir.1980) (recognizing the “established principle” that coconspirators are not indispensable parties).
Moreover, we note that (1) an arbitrator has already ruled in favor of Jim Burke on all of Franklin’s claims against it and (2) the state court has dismissed Franklin’s claims against Jim Burke with prejudice. A party is “indispensable” only if he meets either of the threshold tests of Rule 19(a) of the Federal Rules of Civil Procedure. See Fed.R.Civ.P. 19(b). That provision requires joinder
if (1) in the person’s absence complete relief cannot be accorded among those already parties or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person’s absence may (i) as a practical matter impair or impede the person’s ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest.
Fed.R.Civ.P. 19(a). In light of the binding ruling in favor of Jim Burke and its dismissal from the state court action with prejudice, Jim Burke is not an indispensable party with respect to Franklin’s claims against MS Dealer.
Because complete diversity exists between MS Dealer and Franklin and because Jim Burke is not an indispensable party, we find that the district court properly exercised subject matter jurisdiction over MS Dealer’s petition. We thus proceed to address the merits of the district court’s decision denying the petition.
III.
The district court denied MS Dealer’s petition to compel arbitration on the ground that MS Dealer was not a signatory to the Buyers Order. We review this decision de novo. See Kidd v. Equitable Life Assurance Soc’y of the United States, 32 F.3d 516, 518 (11th Cir.1994).
[*947] In enacting the FAA, Congress demonstrated a “liberal federal policy favoring arbitration agreements.” Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 25, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991) (internal quotation marks omitted). Therefore, “questions of arbitrability must be addressed with a healthy regard for the federal policy favoring arbitrations.” Moses H. Cone, 460 U.S. at 24, 103 S.Ct. 927. Notwithstanding this strong federal policy, however, “arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.” AT & T Techs., Inc. v. Communications Workers of Am., 475 U.S. 643, 648, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986) (internal quotation marks omitted). As a general rule, therefore, “the parties’ intentions control, but those intentions are generously construed as to issues of arbitrability.” Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985).
“Although arbitration is a contractual right that is generally predicated on an express decision to waive the right to trial in a judicial forum, this court has held that the lack of a written arbitration agreement is not an impediment to arbitration.” Sunkist Soft Drinks, Inc. v. Sunkist Growers, Inc., 10 F.3d 753, 756-57 (11th Cir.1993). This is because “there are certain limited exceptions, such as equitable estoppel, that allow nonsignatories to a contract to compel arbitration.” Id. at 757. A second exception exists when, “under agency or related principles, the relationship between the signatory and nonsignatory defendants is sufficiently close that only by permitting the nonsignatory to invoke arbitration may evisceration of the underlying arbitration agreement between the signatories be avoided.” Boyd v. Homes of Legend, Inc., 981 F.Supp. 1423, 1432 (M.D.Ala.1997) (citing cases from Fourth and Sixth Circuits in support of proposition). A third “exception arises when the parties to a contract together agree, upon formation of their agreement, to confer certain benefits thereunder upon a third party, affording that third party rights of action against them under the contract.” Id. at 1429. MS Dealer contends that each of these exceptions is applicable in the present case.
Existing case law demonstrates that equitable estoppel allows a nonsignatory to compel arbitration in two different circumstances. First, equitable estoppel applies when the signatory to a written agreement containing an arbitration clause “must'rely on the terms of the written agreement in asserting [its] claims” against the nonsignatory. Sunkist Soft Drinks, 10 F.3d at 757. When each of a signatory’s claims against a nonsignatory “makes reference to” or “presumes the existence of’ the written agreement, the signatory’s claims “arise[] out of and relate[ ] directly to the [written] agreement,” and arbitration is appropriate. Id. at 758. Second, “application of equitable estoppel is warranted ... when the signatory [to the contract containing the arbitration clause] raises allegations of ... substantially interdependent and concerted misconduct by both the nonsignatory and one or more of the signatories to the contract.” Boyd, 981 F.Supp. at 1433. Otherwise, “the arbitration proceedings [between the two signatories] would be rendered meaningless and the federal policy in favor of arbitration effectively thwarted.” Sam Reisfeld & Son Import Co. v. S.A. Eteco, 530 F.2d 679, 681 (5th Cir.1976). Accordingly, we must scrutinize the nature of Franklin’s claims against MS Dealer “to determine whether those claims fall within the scope of the arbitration clause contained in the [Buyers Order].” Sunkist Soft Drinks, 10 F.3d at 758.
Both of the circumstances giving rise to equitable estoppel exist here. Each of Franklin’s claims against MS Dealer makes reference to and presumes the existence of the $990.00 charge contained in the Retail Installment Contract, which was incorporated by reference into the Buyers[*948] Order. Although Franklin does not allege that the service contract has been violated or breached in any way, each of her fraud and conspiracy claims depends entirely upon her contractual obligation to pay $990.00 for the service contract. [4]
Moreover, it is clear that Franklin’s claims against Jim Burke and MS Dealer “are based on the same facts and are inherently inseparable.” Id. at 757 (internal quotation marks omitted). Franklin alleges that MS Dealer conspired with Jim Burke and Chrysler Credit Corporation (which, like MS Dealer, was not a signatory to the Buyers Order) to engage in a scheme to defraud her by charging her excessive amounts for the service contract and inducing her to incur needless debt and corresponding interest expenses in connection with her purchase of the car. It is important to note that Franklin’s obligation to pay the $990.00 charge arose under the Buyers Order and that she specifically alleges that MS Dealer worked hand-in-hand with Jim Burke and Chrysler Credit Corporation in this alleged fraudulent scheme. Her “allegations of such prearranged, collusive behavior establish! ] that [her] claims against [MS Dealer are] intimately founded in and intertwined with the obligations imposed by the [Buyers Order].” Boyd, 981 F.Supp. at 1433; see also Roberson v. Money Tree of Ala., Inc., 954 F.Supp. 1519, 1529 (M.D.Ala.1997) (compelling arbitration between plaintiffs-signatories to loan agreement and a non-signatory to the loan agreement where the plaintiffs-signatories pleaded “that all the defendants [ (both signatory and nonsigna-tory) ] cooperated in a fraudulent scheme to sell [the plaintiffs-signatories] unnecessary insurance through various suppres-sions and misrepresentations” because the plaintiffs-signatories’ “theory that the defendants acted together to establish a scheme to fraudulently load unnecessary and expensive insurance policies onto high-interest consumer loan agreements gives rise to a set of complaints about their contract obligations [ (to obtain and pay for insurance) ] that implicate all defendants inseparably”); cf. Boyd, 981 F.Supp. at 1434 (explaining that equitable estoppel does not apply where signatory to arbitration clause does not allege that the nonsignatory defendant cooperated with a signatory defendant in a fraudulent scheme).
For the foregoing reasons, we find that Franklin is equitably estopped from avoiding arbitration with MS Dealer. Accordingly, we need not determine whether MS Dealer could enforce arbitration under an agency theory or a third-party-beneficiary theory.
IV.
Franklin raises several other arguments in support of her claim that arbitration may not be compelled under the FAA in this case. We dispose of them summarily.
She contends that the FAA should not even apply to the Buyers Order or other such consumer contracts. The FAA makes enforceable a written arbitration provision in “a contract evidencing a transaction involving commerce.” 9 U.S.C. § 2. Franklin does not dispute that the contract here “evidenced a transaction involving commerce,” as that phrase has been interpreted by the Supreme Court in cases such as Allied-Bruce Terminix Cos. v. Dobson, 513 U.S. 265, 277, 115 S.Ct. 834, 130 L.Ed.2d 753 (1995) (holding that the “word ‘involving’ ... signals an intent to[*949] exercise Congress’ commerce power to the full,” and the phrase “ ‘evidencing a transaction’ mean[s] only that the transaction ... turn[s] out, in fact, to have involved interstate commerce”), but rather requests that this court disavow Supreme Court precedent and adopt a more restrictive interpretation. Of course, we decline this invitation to part ways with the Supreme Court.
She also argues that (1) requiring arbitration in this case violates her Seventh Amendment right to a jury trial and (2) the Magnuson-Moss Act prohibits arbitration in this case involving the sale of a car and a service contract. “However, an examination of the pleadings before the district court indicates that th[ese] issue[s] w[ere] not raised below. The claim[s][are] therefore waived.” Florida Int’l Indem. Co. v. City of Metter, 952 F.2d 1297, 1298 (11th Cir.1992); see Franklin’s Mot. To Dismiss (articulating five reasons for dismissing MS Dealer’s petition for arbitration, none of which mention the Constitution or the Magnu-son-Moss Act). Moreover, and with respect to her Magnuson-Moss Act argument, we note that Franklin’s counsel admitted in oral argument that Franklin has not even brought a claim cognizable under the Magnuson-Moss Act.
V.
For the foregoing reasons, we REVERSE the judgment of the district court and REMAND with instructions to grant MS Dealer’s petition to compel arbitration.
. Jim Burke filed a motion in state court to compel Franklin to arbitrate her claims against it, and the state court granted that motion.
. Like Franklin, the plaintiff in McCollum filed a state court action against two co-defendants, only one of whom was diverse for the purpose of federal jurisdiction under § 1332. The diverse co-defendant filed a petition to compel arbitration in federal district court, naming only itself as the petitioner and the plaintiff as the respondent. The McCollum court found jurisdiction to entertain the petition to compel arbitration pursuant to the FAA even though the state court action could not be removed. because of the non-diverse co-defendant. See 144 F.3d at 1363.
. This Court has adopted as binding precedent all of the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981. See Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (enbanc).
. We acknowledge that Franklin has cast all of her claims against MS Dealer as tort claims rather than contract claims. "However, it is well established that a party may not avoid broad language in an arbitration clause by attempting to cast its complaint in tort rather than contract.” Sunkist Soft Drinks, 10 F.3d at 758 (internal quotation marks and alterations omitted). In addition, we note that the arbitration clause specifically requires arbitration of "[a]H disputes and controversies of every kind and nature ... arising out of or in connection with this contract, its subject matter or its negotiation, as to ... any claim alleging fraud in fact [or] fraud in the inducement. ...” Buyers Order at 2.