PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-1799

CHORLEY ENTERPRISES, INC., a Maryland Corporation; MATTHEW

CHORLEY; CARLA CHORLEY,
Plaintiffs - Appellees,
v.
DICKEYS BARBECUE RESTAURANTS, INC., a Texas corporation;
ROLAND DICKEY, JR.; JERREL DENTON,
Defendants - Appellants.
----------------------JAMES STROTHER CROCKETT, JR.,
Court-Assigned Amicus Counsel.

No. 14-1800

JUSTIN TROUARD; JESSICA CHELTON,

Plaintiffs - Appellees,
v.
DICKEYS BARBECUE RESTAURANTS, INC., a Texas corporation;
ROLAND DICKEY, JR.; JERREL DENTON,
Defendants - Appellants.
-----------------------

JAMES STROTHER CROCKETT, JR.,

Court-Assigned Amicus Counsel.

No. 14-1833

CHORLEY ENTERPRISES, INC., a Maryland Corporation; MATTHEW

CHORLEY; CARLA CHORLEY,
Plaintiffs - Appellants,
v.
DICKEYS BARBECUE RESTAURANTS, INC., a Texas corporation;
ROLAND DICKEY, JR.; JERREL DENTON,
Defendants - Appellees.
----------------------JAMES STROTHER CROCKETT, JR.,
Court-Assigned Amicus Counsel.

No. 14-1834

JUSTIN TROUARD; JESSICA CHELTON,

Plaintiffs - Appellants,
v.
DICKEYS BARBECUE RESTAURANTS, INC., a Texas corporation;
ROLAND DICKEY, JR.; JERREL DENTON,
Defendants - Appellees.
-----------------------

JAMES STROTHER CROCKETT, JR.,

Court-Assigned Amicus Counsel.

Appeals from the United States District Court for the District
of Maryland, at Baltimore and Greenbelt.
Paul W. Grimm,
District Judge. (1:14-cv-01650-GLR; 8:14-cv-01703-PWG)

Argued:

March 26, 2015

Decided:

August 5, 2015

Before DIAZ, FLOYD, and THACKER, Circuit Judges.

Vacated and remanded by published opinion.

Judge Floyd wrote
the opinion, in which Judge Diaz and Judge Thacker joined.

ARGUED: Roger Brian Kaplan, GREENBERG TRAURIG, LLP, Florham

Park, New Jersey, for Appellants/Cross-Appellees. Russell James
Gaspar, COHEN MOHR LLP, Washington, D.C., for Appellees/CrossAppellants.
James Strother Crockett, Jr., SPILMAN, THOMAS &
BATTLE, PLLC, Charleston, West Virginia, as Court-Assigned
Amicus Counsel.
ON BRIEF: Aaron Van Nostrand, GREENBERG
TRAURIG, LLP, Florham Park, New Jersey, for Appellants/CrossAppellees.
Andrew K. Wible, C. Patteson Cardwell, IV, COHEN
MOHR LLP, Washington, D.C., for Appellees/Cross-Appellants.
Sarah B. Smith, SPILMAN, THOMAS & BATTLE, PLLC, Charleston, West
Virginia, for Amicus Curiae.

FLOYD, Circuit Judge:

This appeal arises from a franchise dispute.
national

franchisor

of

quick-service

Dickeys, a

barbeque

restaurants,

claims several of its franchisees in Maryland breached their

franchise agreements by running their restaurants poorly.

The

franchisees in turn claim that Dickeys misrepresented start-up

and other costs in violation of Maryland franchise law, thus
never giving them a chance to succeed.

At this stage in the

proceeding, however, we must decide only whether the parties

claims should be arbitrated, as Dickeys argues, or heard in
federal court in Maryland, as the franchisees contend.
This

issue

agreements.

is

governed

by

the

parties

franchise

On one hand, the agreements require arbitration of

all claims arising out of or relating to the agreements.

553.

On

the

other

hand,

the

agreements

state

that

J.A.
the

agreements shall not require the franchisees to waive their

right to file a lawsuit alleging a cause of action arising
under

Maryland

Franchise

Law

in

any

jurisdiction in the State of Maryland.

court

of

competent

J.A. 555.

The district court held that these provisions create an

ambiguity

that

only

jury

can

resolve.

In

doing

so,

the

district court appeared to conclude that the agreements set up

an either/or scenario: either all the parties claims must go
forward

in

arbitration,

or

they
4

must

all

proceed

in

federal

court.
matter

For the reasons set forth below, we will reverse.

of

law,

provisions

the

clear

requires

Dickeys

must

Maryland

Franchise

that

and

proceed

the

in

Law

unambiguous
common

law

arbitration,

claims

must

language
claims

while

in

of

these

asserted

the

proceed

As a

by

franchisees
the

Maryland

district court.
We recognize that requiring the parties to litigate in two
different

forums

conflicting
Federal
where,

results.

Arbitration
as

claims,

here,

but

instructions
only.
stay

may

to

inefficient,

and

could

But

this

is

mandated

Act,

the

not

be

which

requires

agreements

others.

compel

outcome

call

piecemeal

for

of

to

by

the

litigation

arbitration

Accordingly,

arbitration

lead

the

we

of

reverse

common

law

some
with

claims

We leave it to the district courts discretion whether to

the

franchisees

Maryland

Franchise

Law

claims

pending

conclusion of the arbitration.

I.
Dickeys Barbeque Restaurants, Inc. (Dickeys), is a Texasbased franchisor

of

quick-service

restaurants

specializing

in

barbequed meats, with franchises operating throughout the United

States. 1

Both sets of plaintiffs in this collective appeal

Justin Trouard and Jessica Chelton (Trouard and Chelton), and

Matthew

and

Carla

Enterprises,

Inc.

Franchisees)

Chorley
(the

and

their

Chorleys)

previously

operated

company,

Chorley

(collectively,

Dickeys

the

restaurants

in

Maryland under franchise agreements signed in 2012. 2

A.
The

Franchisees

respective

relationships

with

Dickeys

soured shortly after they opened their restaurants.

According
franchise

to

agreement

Dickeys,

the

by,

other

among

Chorleys
things,

violated
failing

to

their
pass

certain food safety inspections and receiving numerous customer

complaints. 3

As a result, Dickeys sent several notices of

operational deficiencies to the Chorleys throughout 2013 and

early 2014.
fraudulently

In response, the Chorleys asserted that Dickeys

misrepresented

the

operating

costs

and

estimated

profits during negotiations for the franchise in violation of

For ease of reference, we refer to Dickeys as the

Franchisor when using its possessive form.
2 The Chorleys also signed a development agreement granting
them the right to open an additional restaurant, but this
lawsuit was filed before they exercised that right.
3 Because this appeal turns on the terms of the parties
agreements rather than the specifics of their allegations, we
provide only a high-level summary of the parties allegations
here.
6

the Maryland Franchise Registration and Disclosure Law, Md. Code

Bus. Reg. 14-201 to 14-233 (2015) (the Maryland Franchise
Law).
Despite initially exploring whether the dispute could be
mediated,
against

Dickeys
the

ultimately

Chorleys

in

brought

Texas

on

arbitration
May

1,

proceedings

2014.

In

the

arbitration demand, Dickeys asserted three common law claims.

Count I sought a declaratory order finding that the Chorleys
breached

their

franchise

declaratory

order

finding

development

agreement;

and

agreement;
that

the

Count

Count

Chorleys

III

sought

II

sought

breached
damages

their

for

the

court

in

Chorleys breach of both agreements.

The

Chorleys

then

brought

suit

in

federal

Maryland, seeking to enjoin the arbitration and asking the court

to

declare

the

arbitration

provisions

unenforceable.

The

Chorleys also brought affirmative claims for relief under the

Maryland

Franchise

Law

against

Dickeys,

its

owner,

and

its

director of business development (collectively Dickeys or the

Franchisor).
injunctive

Dickeys

relief,

and

in

also

turn
filed

opposed
a

the

cross-motion

arbitration of all the Chorleys claims.

motion
to

for

compel

In the alternative,

Dickeys sought to stay those claims pending arbitration.

Trouard and Chelton had a similar history with Dickeys.
Dickeys

contends

that

Trouard
7

and

Chelton

mismanaged

their

restaurant,

while

Trouard

and

Chelton

assert

that

Dickeys

violated the Maryland Franchise Law by misrepresenting start-up

costs and estimated potential sales and profits.
initially

discussed

ultimately

filed

mediating

arbitration

contract and fraud claims. 4

their
in

The parties

dispute,

Texas,

but

alleging

Dickeys
breach-of-

Trouard and Chelton then filed suit

in Maryland, seeking to enjoin the arbitration and requesting

affirmative relief under the Maryland Franchise Law.

Dickeys

opposed

filed

the

motion

for

injunctive

relief,

and

again

cross-motion to compel arbitration or, in the alternative, to

stay the action.
The district court consolidated the Franchisees lawsuits
for

purposes

arbitrations

of

deciding

these

are

currently

being

preliminary
held

in

motions.

abeyance

The

pending

final decision on the motions for preliminary injunctions and

the cross-motions to compel arbitration.

B.
Both below and here on appeal, the parties arguments hinge
on

the

interplay

virtually

between

identical

two

provisions

franchise

in

agreements:

the
(i)

Franchisees
the

dispute

In its fraud claim, Dickeys alleges that Trouard and

Chelton falsified sales reports in an effort to misrepresent
their restaurants financial performance.
8

resolution

provisions

in

Article

27

and

(ii)

the

Maryland-

specific provisions in Article 29.

Article
requires

27,

the

which

parties

contains

to

first

proceeding to arbitration.

the

Arbitration

mediate

their

Clause,

claims

before

If mediation fails to resolve the

disputes within 90 days after the mediator has been appointed,

either party is entitled to seek arbitration at the office of
the

American

Arbitration

Association

located

nearest

Franchisors corporate headquarters in Plano, Texas.

to

the

In the

Arbitration Clause, the parties also agreed to arbitrate all

disputes, controversies, claims, causes of action and/or alleged
breaches or failures to perform arising out of or relating to
this Agreement (and attachments) or the relationship created by
this Agreement.

J.A. 553. 5

Notwithstanding

this

Arbitration

Clause,

the

agreements

also provide that the STATE SPECIFIC PROVISIONS in Article 29

CONTROL.

J.A.

555.

And

Article

29.1,

the

Inconsistent

Provisions Clause, provides that Maryland law shall govern and

control

any

agreement,

contrary

and

that

or
any

inconsistent
such

provisions

inconsistent

of

the

provisions

are

modified and amended so that they comply with Maryland law.

Id.

Finally, Article 29.2(4), the Maryland Clause, states

5

The Chorleys development agreement contains a virtually

identical arbitration clause. Id. at 585.
9

that the provisions of this Agreement shall not require you to

waive your right to file a lawsuit alleging a cause of action
arising under Maryland Franchise Law in any court of competent
Id. 6

jurisdiction in the State of Maryland.

The

Maryland

Clause

is

similar

(but

not

identical)

to

Section 02.02.08.16(L)(3) of the Code of Maryland Regulations

(the Regulation).
the

Maryland

Under the Regulation, a franchisor violates

Franchise

Law

if

it

requires

franchisee

to

[w]aive the franchisees right to file a lawsuit alleging a

cause of action arising under the Maryland Franchise Law in any
court of competent jurisdiction in this State.

Md. Code Regs.

02.02.08.16(L)(3) (2015).

C.
During
presented

the
opposing

district

court

proceedings,

interpretations

Similarly, a Maryland
development agreement provides:

of

these

Addendum

to

the
clauses.

the

Any
provision
of
this
Agreement
which
designates jurisdiction or venue outside of
the State of Maryland or requires you to
agree to jurisdiction or venue in a forum
outside of the State of Maryland is void
with respect to any claim arising under the
Maryland
Franchise
Registration
and
Disclosure Law.
J.A. 597.
10

parties
The

Chorleys

Franchisees
conflicts

claimed
with

the

that

the

Maryland

Arbitration

Clause

Clause,

thus

fundamentally
rendering

the

Arbitration Clause void such that all of the parties claims

must proceed in the district court.

Dickeys took a different

view, arguing that the Maryland Clause is consistent with the

Arbitration Clause because the Maryland Clause merely preserves
the

Franchisees

right

to

bring

claim

under

Franchise Law in either arbitration or in court.

the

Maryland

Alternatively,

assuming the Franchisees interpretation was correct, Dickeys

argued that the Federal Arbitration Act, (FAA), 9 U.S.C. 1 et
seq.,

would

preempt

the

Maryland

Clause

as

an

invalid

prohibition on arbitration.
The district court concluded that both parties readings of
the

Arbitration

and

Maryland

Clauses

rendering the agreements ambiguous.

that

under

Clause

the

could

J.A. 32.

Franchisors

function

in

were

thus

The district court noted

interpretation,

harmony

plausible,

with

the

the

Arbitration

Maryland

Clause.

The court also recognized that under the Franchisees

view, the Maryland Clause . . . control[s], and [its] language

refers to litigation only, not arbitration.

Id.

these

reasoned

conflicting

interpretations,

the

court

Faced with
that

jury must determine exactly which claims, if any, the parties

11

agreed

to

arbitrate. 7

Thus,

the

district

court

denied

the

parties respective motions without prejudice and ordered a jury

trial on the meaning of the franchise agreements. 8
Dickeys then timely appealed the denial of its motions to
compel, and the Franchisees cross-appealed from the denial of
their motions for preliminary injunctive relief.

II.
Before we can address the merits, we must determine whether
we have jurisdiction over these appeals.

We ordinarily review

only final decisions from the district courts.

Rota-McLarty v.

Santander Consumer USA, Inc., 700 F.3d 690, 696 (4th Cir. 2012).
And there is no dispute that the order at issue is not final.
Thus, we typically would not have jurisdiction over the parties
interlocutory appeals, absent an exception to the final order
doctrine.

Because the jury could have ultimately agreed with the

Franchisors interpretation of the respective clauses, the
district court did not reach the Franchisors alternative
argument that the FAA preempts the Maryland Clause.
8 Although the district court also held that the Chorleys
development agreement was similarly ambiguous as to whether
[the Chorleys] agreed to litigate Maryland Franchise Act claims
as opposed to arbitrate them, the court concluded that the
Maryland Addendum was unambiguous with respect to venue. Thus,
assuming a jury found arbitration appropriate under that
agreement, the district court held that any such arbitration
must take place in Maryland, not Texas.
12

A.
Section 16 of the FAA provides just such an exception.
U.S.C. 16. 9

That section authorizes interlocutory appeals from

a district courts refusal to either stay litigation pending

arbitration under Section 3 of the FAA or compel arbitration
under Section 4 of the FAA.
BMO

Harris

Bank,

N.A.,

9 U.S.C. 16(a)(1); see Dillon v.

787

F.3d

707,

713

(4th

Cir.

2015)

(stating that under Section 16, an order that favors litigation

over

arbitration

is

immediately

appealable,

interlocutory in nature (ellipsis omitted)).

that

the

Franchisors

motions

to

compel

even

if

It is undisputed

expressly

sought

to

enforce the Arbitration Clause under Sections 3 and 4 of the

FAA.

The

motions.

district

courts

order

also

expressly

denied

the

Thus, on the surface at least, this Court appears to

have jurisdiction under 9 U.S.C. 16(a)(1).

The
matter

Court-appointed

is

not

as

amicus

disagrees,

straightforward

as

it

arguing
seems.

that
The

this

amicus

reasons that Section 16(a)(1) applies only when a district court

makes a final decision as to whether any or all of the claims
between the parties must proceed to arbitration.
district

court

after

jury

reserved
trial,

the

final
amicus

ruling

on

contends

Because the

the

motions

the

order

until

is

not

The parties agree that the Arbitration Clause is governed

by the FAA.
13

immediately

appealable.

In

essence,

the

amicus

believes

an

interlocutory appeal under Section 16 is always premature if a

district

court

orders

jury

trial

under

Section

before

deciding a motion to compel.

Although

we

appreciate

the

amicuss

views,

interpretation is contrary to the FAAs plain language.

this
Section

16(a)(1)(b) provides for interlocutory appeals of orders denying

arbitration without stating whether those orders must be final.
A

separate

subsection,

Section

16(a)(3),

provides

for

interlocutory review of any final decision with respect to an

arbitration.

U.S.C.

16(a)(3).

If

Section

16(a)(1)(b)

applies only to final orders, as the amicus contends, Congress

would have said as much, as it did in Section 16(a)(3).

See

Sandvik AB v. Advent Intl Corp., 220 F.3d 99, 102-03 (3d Cir.
2000) (finding it significant that Congress decided to use the
word final in one part of the statute, but declined to do so
in

the

section

that

declares

that

orders

compel arbitration are indeed appealable).

so,

of

course,

because

grafting

denying

motions

to

Congress did not do

finality

requirement

onto

Section 16(a)(1)(b) would read that section out of the statute

by making it redundant with Section 16(a)(3).

See id.

The amicuss interpretation would also frustrate the very

purpose
Congress

of

Section

created

16.

appellate

As

we

have

jurisdiction
14

previously
over

recognized,

non-final

orders

denying motions to compel arbitration to effectuate a strong

policy favoring arbitration.
(quotation omitted).

Rota-McLarty, 700 F.3d at 696

Refusing to hear an appeal until after a

jury trial would not further this policy.

That is especially

true where, as here, the arbitration agreements can be construed

on their face as a matter of law, thereby making a jury trial
unnecessary.
In short, the district court expressly denied the motions
to compel arbitration without prejudice.

J.A. 35.

As we have

previously held, and we reiterate again today, that is all that

is necessary to grant us appellate jurisdiction in this case.
Snowden v. Checkpoint Check Cashing, 290 F.3d 631, 636 (4th Cir.
2002); see also Quilloin v. Tenet HealthSystem Phila., Inc., 673
F.3d 221, 228 (3d Cir. 2012) ([T]here can be no doubt that we
have the authority to review an appeal from the District Court's
order denying a motion to compel arbitration, irrespective of
the fact that the order was denied without prejudice.). 10

10

The amicus contends a different result is warranted under

Chase v. Sidney Frank Importing Co., Inc., 133 F.3d 913, 1998 WL
3609 (4th Cir. 1998) (per curiam). In that unpublished opinion,
we concluded that an appeal was not ripe for review when the
district court denied a motion to compel upon determining that
additional factual development was necessary to decide the
defendants
claim
that
the
arbitration
clause
had
been
fraudulently induced.
Amicuss reliance on Chase is misplaced
for several reasons. Unlike in Chase, no further factual issues
remain here the Arbitration Clause may be construed as a
matter of law.
Additionally, Chase which as an unpublished
(Continued)
15

B.
The Franchisees also contend we have jurisdiction to hear
their

cross-appeal

authorizes

under

interlocutory

injunctions.

28

U.S.C.

appeals

of

We are not so sure.

1292(a)(1),

orders

refusing

which
.

The Franchisees fail to

address Section 16(b)(4) of the FAA, which expressly prohibits

immediate

review

arbitration.

of

interlocutory

U.S.C.

orders

16(b)(4).

refusing

Several

of

to

enjoin

our

sister

circuits have concluded that Section 16(b)(4) trumps 28 U.S.C.

1292(a)(1), thus precluding immediate review of such orders.
See Accenture LLP v. Spreng, 647 F.3d 72, 74-75 (2d Cir. 2011)
(collecting cases).

Section 16(b)(4) may also preclude us from

exercising pendant appellate jurisdiction over the Franchisees

cross-appeal under Swint v. Chambers County Commission, 514 U.S.
35, 50-51 (1995) (suggesting that appellate courts may exercise
jurisdiction over non-appealable issues that are inextricably
intertwined with a question that is the proper subject of an
immediate appeal).
We

decline

to

decide

these

issues,

however,

because

resolution of the Franchisors appeal will necessarily decide

decision is not binding on this Court appears to have been

wrongly decided, and is against the weight of published
authority holding that all orders denying motions to compel
arbitration are immediately appealable under the FAA.
16

the issue presented by the Franchisees cross-appeal: whether

arbitration may proceed in Texas.

Indeed, the appeal and cross-

appeal

same

present

two

sides

of

the

coin:

the

Franchisors

appeal asserts that all the parties claims should be arbitrated

in

Texas;

the

Franchisees

arbitrations in Texas.
limb

as

to

the

cross-appeal

seeks

to

enjoin

the

We need not step out on a jurisdictional

Franchisees

cross-appeal

when

deciding

the

Franchisors appeal which we clearly have jurisdiction over

will resolve all the issues raised by the parties.

Accordingly,

we dismiss the cross-appeal as moot.

III.
A.
Having

concluded

Franchisors

appeal,

contentions.

The

district

court

concluding

that
we

that

Clause ambiguous.

turn

central

properly
the

we
to

issue

refused

Maryland

have
the

jurisdiction
merits

before
to

Clause

of

us

compel

over

the

is

parties

whether

arbitration

renders

the

We review this issue de novo.

Bros., Inc., 708 F.3d 599, 605 (4th Cir. 2013).

the

the
after

Arbitration

Noohi v. Toll
We also review

de novo questions of state contract law concerning the validity

of the parties arbitration agreement.

Muriithi v. Shuttle

Express, Inc., 712 F.3d 173, 178 (4th Cir. 2013).

17

As

background,

Section

of

the

FAA,

its

primary

substantive provision, Moses H. Cone Meml Hosp. v. Mercury

Constr.

Corp.,

460

U.S.

1,

24

(1983),

makes

agreements

to

arbitrate valid, irrevocable, and enforceable, save upon such

grounds as exist at law or in equity for the revocation of any
contract.

9 U.S.C. 2.

Sections 3 and 4 in turn provide[]

two parallel devices for enforcing an arbitration agreement: a

stay of litigation in any case raising a dispute referable to
arbitration, 9 U.S.C. 3, and an affirmative order to engage in
arbitration, 4.
We

will

Moses H. Cone, 460 U.S. at 22.

compel

arbitration

under

Section

if:

(i)

the

parties have entered into a valid agreement to arbitrate, and

(ii)

the

dispute

arbitration
omitted).

in

agreement.

question

falls

Muriithi,

within

712

F.3d

the
at

scope
179

of

the

(citation

The issue whether a dispute is arbitrable presents

primarily a question of contract interpretation, requiring that

we give effect to the parties intentions as expressed in their
agreement.

Id.

If we conclude that the parties intended to

arbitrate a dispute, we must enforce that agreement according to

its terms.
(2012).

CompuCredit Corp. v. Greenwood, 132 S. Ct. 665, 669

At the same time, it is well-settled that a party

cannot be required to submit to arbitration any dispute which he

has not agreed to so submit.

Levin v. Alms & Assocs., Inc.,

634 F.3d 260, 266 (4th Cir. 2011) (quotation omitted).

18

B.
In determining the parties intent, we apply ordinary state
law

principles

governing

the

formation

of

contracts.

First

Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944 (1995).

And

under

ambiguous

applicable
contract

evidence.

if

Maryland
there

Law, 11

is

no

we

may

factual

construe

dispute

in

an
the

Pacific Indem. Co. v. Interstate Fire & Cas. Co.,

488 A.2d 486, 489 (Md. 1985); see also Sierra Club v. Dominion
Cove Point LNG, L.P., 216 Md. App. 322, 334 (Md. Ct. Spec. App.
2014) (stating that the mere fact that the parties disagree as
to

the

meaning

does

not

necessarily

render

[a

contract]

ambiguous when it could only have one meaning as a matter of

law).

In

the

proceedings

below,

neither

party

disputed

any

facts: they simply offered conflicting interpretations of the

relevant

agreements.

Notwithstanding

the

district

courts

decision to hold a jury trial then, this is precisely the type

of issue we can decide as a matter of law.

11

Although the Governing Law provisions state that the

franchise agreements shall be governed by and construed in
accordance with the laws of the State of Texas, J.A. 553, the
parties agree that Maryland law applies.
The district court
also applied Maryland law in its order, and both parties cite to
Maryland law on appeal.
Accordingly, we will also apply
Maryland law here.
Cf. Cargill, Inc. v. Charles Kowsky Res.,
Inc., 949 F.2d 51, 55 (2d Cir. 1991) (finding waiver of
Massachusetts choice of law provision when both parties relied
on New York law before district court and on appeal).
19

The

district

court

concluded

that

Section

of

the

FAA

requires a jury trial whenever the parties present conflicting

interpretations of an agreement.

The right to a jury trial

under Section 4 of the FAA, however, is not automatic.

Rather,

the party seeking a jury trial must make an unequivocal denial

that

an

arbitration

sufficient

facts

in

agreement

exists

support.

and

Oppenheimer

must
&

Co.,

also
Inc.

show
v.

Neidhardt, 56 F.3d 352, 358 (2d Cir. 1995); see also Manning v.
Energy Conversion Devices, Inc., 833 F.2d 1096, 1103 (2d Cir.
1987). 12
Not just any factual dispute will do.

Rather, the party

requesting a jury trial under Section 4 must provide sufficient

evidence in support of its claims such that a reasonable jury
could return a favorable verdict under applicable law.
standard

is

akin

to

the

burden

on

summary

judgment.

This
See

Oppenheimer, 56 F.3d at 358 (comparing Fed. R. Civ. P. 56(c),

(e) to the level of sufficient evidentiary facts needed for jury
trial under 9 U.S.C. 4).

In other words, to obtain a jury

12

Although we have not previously addressed the standard

for obtaining a jury trial under Section 4, we find the Second
Circuits approach persuasive and so expressly adopt it here.
Cf. Glass v. Kidder Peabody & Co., 114 F.3d 446, 456 (4th Cir.
1997) (recognizing that the Second Circuits decisions are
preeminent in arbitration law.).
20

trial, the parties must show genuine issues of material fact

regarding the existence of an agreement to arbitrate. 13
Here, the Franchisees requested a jury trial, but did not
dispute any material facts.
not

entitled

to

jury

Accordingly, the Franchisees are

trial

under

Section

of

the

FAA.

Rather, we will decide whether the parties intended to arbitrate

their disputes as a matter of law based on the plain language of
the agreements.

C.
1.
We first consider whether the parties intended to arbitrate
the Franchisors common law claims.

This question is governed

by the Arbitration Clause, Ford v. Antwerpen Motorcars, ___ A.3d

___, No. 68, 2015 WL 3937607, at * 3 (Md. July 13, 2015), which
indicates

that

the

Franchisees

agreed

to

arbitrate

all

disputes, controversies, claims, causes of action and/or alleged

breaches or failures to perform arising out of or relating to

13

The policy behind the FAA supports this standard.

If
parties could request and receive jury trials merely by
advancing conflicting interpretations of contractual language
without any supporting extrinsic evidence, it would frustrate
the very policies that the FAA is meant to promote the swift
and inexpensive alternative resolution of disputes outside of
the judicial forum.
21

this Agreement (and attachments) or the relationship created by

this Agreement.

J.A. 553.

The Franchisors breach of contract claims clearly arise

out of or relate to the Franchise Agreements, and thus fall
squarely within the Arbitration Clause.

See Am. Recovery Corp.

v. Computerized Thermal Imaging, 96 F.3d 88, 93 (4th Cir. 1996);

see also Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S.
395,

398

(1967)

arbitration

of

(labeling
any

as

broad

controversy

relating to this Agreement).

or

clause

claim

that

arising

required

out

of

or

Similarly, the Franchisors claim

that Trouard and Chelton fraudulently falsified sales reports

falls within the scope of the Arbitration Clause because that
claim arises directly from the franchise relationship created by
the agreement.

See Long v. Silver, 248 F.3d 309, 318 (4th Cir.

2001)

that

(holding

fraud

claims

must

be

arbitrated

when

significant relationship exists between those claims and the

contract in which the arbitration clause is contained).
agreements

plain

language

then,

it

seems

clear

By the

that

the

Franchisees have agreed to arbitrate the Franchisors common law

claims.

2.
The Franchisees make several unavailing arguments to avoid
this

result.

First,

the

Franchisees
22

contend

that

Dickeys

cannot arbitrate its dispute because it failed to first seek

mediation as required by Article 27 of the franchise agreements.
According to the Franchisees, mediation is a condition precedent
to invoking the arbitration provision, and so the motions to
compel should be denied for this reason alone.
As

the

arbitrators

Supreme

not

Court

courts

has

recently

must

decide

re-affirmed,
whether

precedent to arbitrability has been fulfilled.

however,
condition

BG Group PLC v.

Republic of Arg., 134 S. Ct. 1198, 1207-08 (2014); see also

Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 85-6 (2002).14
Accordingly, the Franchisees argument must be decided by the
arbitrator, not the court.
the

Franchisees

have

no

Should the arbitrator decide that

duty

to

arbitrate

because

Dickeys

failed to satisfy the mediation condition precedent, the parties

may then seek relief in court under the FAA.

14

See 9 U.S.C. 9-

Several circuits, including our own in an unpublished

opinion, have refused to compel arbitration when the requesting
party failed to comply with a precondition to arbitration. See
Perdue Farms Inc. v. Design Build Contracting Corp., 263 F.
Appx 380, 383 (4th Cir. 2008) (Where a condition precedent to
arbitration is not fulfilled, a party to a contract does not
have a right to arbitration.); HIM Portland LLC v. Devito
Builders Inc., 317 F.3d 41, 44 (1st Cir. 2003) (refusing to
compel arbitration because [u]nder the plain language of the
contract, the arbitration provision of the agreement is not
triggered until one of the parties requests mediation);
Kemiron-Atl. Inc. v. Aguakem Intl Inc., 290 F.3d 1287, 1291
(11th Cir. 2002) (same).
All of these cases either predate,
conflict with, or do not consider Howsam and BG Group, however,
and thus do not control here.
23

11

(providing

procedure

for

parties

to

seek

confirmation,

vacatur, or correction of an arbitration decision).

But that

possibility is irrelevant at this stage in the proceeding.

3.
The

Franchisees

next

argue

that

Article

29

voids the Arbitration Clause in its entirety.

they

point

Maryland

to

language

Clause

applies

in

to

the

common

law

J.A. 555.

claims,

the

contrary to the Maryland Clause.

do

not

implicate

because

that

the

Clause

Maryland
only

agreements

notwithstanding

Agreement in the contrary.

as

the

trumps

In support,

stating
anything

that
in

We disagree.

Arbitration

or

the

th[e]

At least

Clause

is

not

Indeed, the common law claims

Clause

applies

to

in

the

claims

first

instance,

aris[ing]

under

Maryland Franchise law, and the Franchisors claims clearly do

not arise under that Law.

J.A. 555.

Read together then, the

Arbitration and Maryland Clauses demonstrate that the parties

agreed to arbitrate all disputes except for the narrow carve-out
for Maryland Franchise Law claims as set forth in the Maryland
Clause. 15

15

A similar analysis applies to the Chorleys development

agreement.
The Maryland Addendum in the development agreement
only requires Maryland venue for any claim arising under the
Maryland Franchise Registration and Disclosure Law.
J.A. 597.
The Franchisors breach of contract claims do not arise under
(Continued)
24

The

Franchisees

seek

to

conjure

conflict

between

the

Maryland Clause and the Arbitration Clause by asserting that

they will be forced to raise their Maryland Franchise Law claims
as affirmative defenses in the arbitration.
Franchisees,

ruling

in

arbitration

on

According to the
their

affirmative

defenses under the Maryland Franchise Law could hypothetically

have

preclusive

effect

on

the

proceedings as to those claims.

Maryland

district

court

As the argument goes, such a

ruling would effectively negate their right to bring suit in

Maryland court under the Maryland Clause.
We

reject

this

reasoning.

As

an

initial

matter,

the

Maryland Clause only states that the Franchisees have a right to

file

lawsuit

bringing

Maryland

Franchise

Law

claims

in

Maryland court; it does not say the Franchisees also have a

right to bring all affirmative defenses based on the Maryland
Franchise

Law

in

court.

By

its

plain

language

then,

the

Maryland Clause does not apply to the Franchisees affirmative

defenses.

And as set forth above, where the Maryland Clause is

not implicated, the Arbitration Clause controls.

that law. Accordingly, to the extent those claims are based on

the development agreement, they may be arbitrated in Texas.
Conversely, the Chorleys Maryland Franchise Law claims under
the development agreement may go forward in Maryland court,
because the Maryland Addendum states that the Arbitration Clause
is void as to those claims.
25

Moreover, the FAA requires the exact piecemeal litigation

the

Franchisees

seek

to

avoid

potential for conflicting results.

here,

notwithstanding

the

KPMG LLP v. Cocchi, 132 S.

Ct. 23, 26 (2011) (per curiam) ([W]hen a complaint contains

both

arbitrable

and

nonarbitrable

claims,

the

Act

requires

courts to compel arbitration of pendent arbitrable claims when

one of the parties files a motion to compel, even where the
result would be the possibly inefficient maintenance of separate
proceedings in different forums.); see also In re Cotton Yarn
Antitrust Litig., 505 F.3d 274, 285 (4th Cir. 2007) ([F]ederal
law requires piecemeal resolution when necessary to give effect
to

an

arbitration

agreement.).

Accordingly,

we

will

not

determine the preclusive effect of a hypothetical award at this

stage.
We note that if the parties had wanted to avoid potentially
conflicting

results

and

thorny

questions

regarding

the

preclusive effect of a potential award 16 they could have agreed

16

Arbitration awards generally have the same preclusive

effect as court orders, but only to the extent the parties agree
that the issues could be decided in arbitration.
Cf.
Dean
Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 222 (1985) ([I]t
is far from certain that arbitration proceedings will have any
preclusive effect on the litigation of nonarbitrable federal
claims.). As explained below, the Franchisees did not agree to
arbitrate their Maryland Franchise Law claims.
Thus, even if
the arbitrator rejects the Franchisees affirmative defenses,
that ruling arguably may not preclude the district court from
reaching a contrary result on the Maryland Franchise Law claims.
(Continued)
26

on a single forum for all their claims.

But they did not.

We

will not rewrite their agreements to save them from their own
self-imposed, inefficient arbitration procedures.

Accordingly,

we reverse with instructions for the district court to compel

arbitration of the common law claims.

D.

Whether

the

parties

also

agreed

to

arbitrate

the

Franchisees Maryland Franchise Law claims is another matter.

1.
Unlike the Franchisors common law claims, the Franchisees
claims

directly

implicate

the

Maryland

Clause.

Again,

that

Clause states that nothing in the agreements shall require you

to waive your right to file a lawsuit alleging a cause of action
arising under Maryland Franchise Law in any court of competent
jurisdiction in the State of Maryland.

J.A. 555.

Reading the

Arbitration Clause as mandating arbitration of the Franchisees

Maryland Franchise Law claims would necessarily require them
to

waive

their

right

to

file

such

claims

in

competent jurisdiction in the State of Maryland.

court

of

By its plain

For the reasons set forth above, however, we will not decide
this hypothetical question here.
27

language

then,

the

Maryland

Clause

conflicts

with

the

Arbitration Clause as to the Franchisees Maryland Franchise Law

claims.

And

because

the

Maryland

Clause

applies

notwithstanding anything in th[e] Agreement in the contrary,

id., we conclude that it trumps the more general Arbitration
Clause as to Maryland Franchise Law claims, thus allowing the
Franchisees to file those claims in Maryland court.

2.
Dickeys disagrees, asserting that the Maryland Clause does
not mean what it says.

In its view, the Maryland Clause merely

preserves the Franchisees right to pursue a claim in court or

in

an

arbitration

support,

Dickeys

under

cites

the

three

Maryland

cases

Franchise

purportedly

Law.

In

holding

that

words such as lawsuit, sue and court do not negate [an]

arbitration

provision,

but

merely

preserve[]

the

right

of

franchisee to pursue a claim in court or in arbitration

under Maryland Franchise Law.

App. Br. at 32 (citing Holmes v.

Coverall

365

N.

Am.,

649

A.2d

(Md.

1994);

Zaks

v.

TES

Franchising, No. 3:01CV2266JBA, 2004 WL 1553611 (D. Conn. July

9, 2004); and CompuCredit, 132 S. Ct. at 669).
these cases is misplaced.

Its reliance on

As set forth below, none of these

cases addresses language even remotely similar to the Maryland

Clause.
28

First, Holmes is readily distinguishable because it held

only

that

the

Maryland

Franchise

Law

neither

prohibits

arbitration nor requires Franchise Law claims to be brought in

649 A.2d at 368. 17

Maryland.

But the text of the Maryland

Clause controls here, not the text of the Maryland Franchise

Law.

And

the

two

are

fundamentally

different.

Unlike

the

Maryland Franchise Law, the Maryland Clause does not merely use
the words sue and court in creating a cause of action. 18
Instead,

it

Agreement,

expressly
including

states
the

that

the

Arbitration

provisions
Clause,

of

the

shall

not

require the Franchisees to waive their right to file a lawsuit

alleging a cause of action arising under the Maryland Franchise
Law in any court of competent jurisdiction in this State.

J.A.

555.
In short, Holmes establishes that the Maryland Franchise
Law grants franchisees a right to sue for violations of that
Law, but does not say where that suit must take place; whereas
17

Although Holmes addressed a predecessor version of the

Maryland Franchise Law, the differences between it and the
current version are minor and do not impact the analysis here.
18 The Maryland Franchise Laws Civil Liability section
grants a franchisee the right to sue under the Law to recover
damages sustained by the grant of the franchise, but does not
state whether that suit must be brought in arbitration or in
court. Md. Code Bus. Reg. 14-227(b). It also states that a
court may order the person who sells or grants a franchise to:
(1) rescind the franchise; and (2) make restitution to the
person who buys or is granted a franchise.
Id. 14-227(c)
(emphasis added).
29

the Maryland Clause goes one step further and expressly grants
franchisees a right to file that suit in Maryland.

Accordingly,

neither Holmes nor the Maryland Franchise Law shed any light on
the meaning of the Maryland Clause.
Dickeys

next

cites

Zaks

for

the

proposition

that

Maryland Franchise Law does not prohibit arbitration.

the

In doing

so, Dickeys again conflates the Maryland Franchise Law with the
Maryland Clause.
the

parties

Zaks is also inapposite because, unlike here,

there

executed

an

addendum

to

their

agreement

expressly stating that the arbitration provision overrode any

provision permitting suit in Maryland.

Zaks, 2004 WL 1553611,

at

the

*2

(Notwithstanding

Franchise

Agreement

following

terms

Franchise

Agreement

to

and

anything

which

this

conditions
requires

to

Addendum

shall

binding

contrary
is

control:

in

the

attached,
.

the

The

arbitration.).

The

opposite is true here: to the extent they conflict, the Maryland

Clause controls notwithstanding the Arbitration Clause.

J.A.

555.
Dickeys also contends that Compucredit, 132 S. Ct. at 669
construed

language

similar

to

that

in

the

Maryland

Clause.

According to Dickeys, the Supreme Court held that statutory

language purportedly prohibiting the waiver of the right to
sue

in

court

actions

only

established

30

private

right

of

action that could be brought in either arbitration or court.

App. Br. at 36.
In

Dickeys overstates Compucredits holding.

Compucredit,

the

Supreme

Court

considered

whether

federal statute the Credit Repair Organizations Act (CROA), 15

U.S.C. 1679 et seq. precludes arbitration of claims alleging
violations of that statute.

The plaintiffs contended that the

right to sue language in the CROAs disclosure provision, 15

U.S.C.

1679c(a),

arbitration.
Dickeys

right

to

sue

in

court,

not

The Supreme Court disagreed, but not because, as

contends,

arbitration.

created

that

Instead,

language
the

Court

could

be

held

that

read
the

to

permit

disclosure

provision was entirely irrelevant because it does not provide[]

consumers with a right to bring an action in a court of law,
but rather provides only the right to receive the [disclosure]
statement, which is meant to describe the consumer protections
that the law elsewhere provides.

132 S. Ct. at 669-70.

In

contrast, the Maryland Clause does not merely provide notice of

rights that are provided elsewhere; rather, as a contractual
commitment, it expressly creates the right itself. 19

19

Upon concluding that 1679c(a) was irrelevant, the Court

then turned to the CROAs civil liability provision, 1679g,
which creates a private cause of action for violations of the
statute. 1679g uses terms like action, class action, and
court in describing the cause of action.
The Supreme Court
concluded that this language only established a private right of
action that could be brought in either arbitration or court.
(Continued)
31

If anything, Compucredit supports the Franchisees position

that the parties were free to select a Maryland court forum,
notwithstanding the default position that Maryland Franchise Law
claims can be brought in arbitration:
[J]ust as the contemplated availability of
all judicial forums may be reduced to a
single forum by contractual specification,
so also can the contemplated availability of
judicial action be limited to judicial
action
compelling
or
reviewing
initial
arbitral adjudication.
The parties remain
free to specify such matters, so long as the
guarantee of [the CROAs civil liability
provision]--the guarantee of the legal power
to impose liability--is preserved.
132 S. Ct. at 671 (emphasis in original).

In the same way,

here, Dickeys and the Franchisees were free under the Maryland
Franchise Law to arbitrate or litigate claims arising under the
Law.

But,

expressly

by

chose

agreeing
to

to

litigate

the

Maryland

those

Clause,

claims

arbitrating all other claims in Texas).

in

the

Maryland

parties
(while

This choice is wholly

consistent with Compucredit, which expressly notes that parties

remain free to agree to forum-selection clauses, notwithstanding

This holding is analogous to Holmes both the CROA and the

Maryland Franchise Law use words like court and action in
describing their respective private statutory causes of action.
In contrast to the CROA and the Maryland Franchise Law, however,
the Maryland Clause goes further and expressly states that
Franchisees have the right to file a suit in any court of
competent jurisdiction in this State.
Both the Maryland
Franchise Law and the CROA lack this specific forum-selection
language. Accordingly, Compucredit does not control this case.
32

civil

liability

provisions

using

words

such

as

court

and

action.
Finally,

Dickeys

argues

that

the

Regulation

does

not

prohibit arbitration, and therefore the Maryland Clause must not

either.

Again, we disagree.

Although some of the language in

the Clause tracks the Regulation, they are not identical.

Both

the Regulation and the Clause consist of a single sentence, but

they differ in one fundamental respect: they contain different
subjects.

In the Regulation, the subject is the franchisor: it

is the franchisor who may not require the franchisee to waive

their litigation rights.

But in the Clause, the subject is the

agreement itself: the provisions of the agreement cannot be

read to require that franchisees waive their litigation rights.
This distinction matters.
the

subject

is

the

As the district court held, when

franchisor

as

in

the

Regulation,

the

Franchisees remain free to agree to arbitrate Maryland Franchise

Law claims the Regulation only prohibits forced or involuntary
waivers. 20

But

when

the

subject

20

is

the

provisions

of

the

The district court made the distinction between voluntary

and involuntary waivers in an effort to read the Regulation as
consistent with the Maryland Franchise Law as required by
Maryland administrative law principles.
See J.A. 28 (citing
Lussier v. Md. Racing Commn, 684 A.2d 804 (Md. 1996)).
The
district court made this distinction in the context of rejecting
the Franchisees argument that the Arbitration Clause conflicted
with the Inconsistent Provisions Clause. The Franchisees do not
rely on the Inconsistent Provisions Clause on appeal, however,
(Continued)
33

agreement as in the Maryland Clause, the parties have already

reached

an

agreement

as

to

arbitration.

And

here,

that

agreement consists of both the Maryland and Arbitration Clauses,

which demonstrate that the parties intended to arbitrate all
claims except for Maryland Franchise Law claims.
Put differently, under the district courts interpretation
of

the

Regulation,

the

Franchisees

were

free

to

waive

their

right to file suit in Maryland, as long as that waiver were

voluntary.
Franchisees

But
did

the
not

Maryland
agree

to

Clause
waive

demonstrates

that

right

in

that
the

instance, at least as to their Franchise Law claims.

both

parties

agreed

to

litigate

those

claims

in

the
first

Rather,
Maryland.

Accordingly, we will not compel arbitration of the Franchisees

Maryland Franchise Law claims.

3.
Alternatively,
Clause

does

Dickeys

prohibit

contends

arbitration

of

that
the

then the Clause is preempted by the FAA.

not

reach

this

issue

because

arbitrability question to a jury.

it

if

the

Maryland

Franchisees

claims,

The district court did

referred

the

threshold

Because we have decided this

so
we
need
not
determine
whether
the
district
courts
distinction between voluntary and involuntary waivers was
correct.
34

question in the Franchisees favor as a matter of law, we will

address this alternative preemption argument here.
It is well established that the FAA pre-empts application
of

state

laws

unenforceable.

which

render

arbitration

agreements

Volt Info. Scis., Inc. v. Bd. of Trs., 489 U.S.

468, 472 (1989).

Thus, where state law prohibits outright the

arbitration of a . . . claim . . . [t]he conflicting rule is

displaced by the FAA.

Marmet Health Care Ctr., Inc. v. Brown,

132 S. Ct. 1201, 1203-1204 (2012) (citing AT&T Mobility LLC v.

Concepcion, 131 S. Ct. 1740, 1747 (2011)); Saturn Distr. Corp.
v. Williams, 905 F.2d 719, 722 (4th Cir. 1990).
Our

decision

in

Saturn

is

particularly

instructive.

There, Saturn an automobile distributor brought an action

for declaratory and injunctive relief, claiming that the FAA
preempted a Virginia statute prohibiting arbitration of claims
arising out of auto dealership agreements.
Saturn

submitted

Commissioner

of

its
the

dealer

905 F.2d at 721.

agreement

Department

of

Motor

to

the

Vehicles,

Virginia
but

the

Commissioner refused to approve it in light of its arbitration

clause.

We

concluded

that

the

Virginia

conflicted with the FAA and was thus preempted.

statute

plainly

Id. at 722.

Unlike in Saturn, however, the Maryland Clause is not a

state law prohibiting arbitration.

Rather, it is a contractual

provision prohibiting arbitration.

And it is generally well-

35

settled that when a party to a contract voluntarily assumes an

obligation

to

proceed

preemption

doctrine

under

does

not

certain
apply

state
to

liability for breach of that agreement.

laws,

shield

traditional
party

from

Epps v. JP Morgan

Chase Bank, N.A., 675 F.3d 315, 326 (4th Cir. 2012) (citing Am.
Airlines v. Wolens, 513 U.S. 219, 228 (1995)); see also Coll.
Loan Corp. v. SLM Corp., 396 F.3d 588, 598 (4th Cir. 2005)
(where

parties

standards

in

to

their

an

agreement

bargained-for

voluntarily
private

assume

contract,

federal
partys

argument that enforcement of the agreement is preempted by that

federal law boils down to a contention that it was free to
enter into a contract that invoked a federal standard as the
indicator of compliance, then to proceed to breach its duties
thereunder
. . .

and

to

shield

its

breach

by

pleading

preemption.

[F]ederal supremacy does not mandate such a result.). 21

21

Dickeys contends that these cases establish that statemandated contract provisions are preempted if they contravene
federal law.
App. Br. at 51.
None of these cases actually
held as much.
Instead, they held only that parties cannot
incorporate state law in their agreements, and then later seek
to shield themselves from that law by pleading preemption. They
did not address the inverse scenario that is, whether stateimposed contractual commitments are preempted. The Franchisors
citation to Wells Fargo Home Mortg., Inc. v. Neal, 922 A.2d 538
(Md. 2007), is particularly misplaced, because that decision
does not even address preemption.
Rather, it decided only
whether a borrower could bring a breach of contract claim based
on a lenders purported failure to comply with federal
regulations allegedly incorporated in the borrowers deed of
trust. And even if Neal did support the Franchisors argument,
(Continued)
36

As the Third Circuit recently recognized, these cases have a

salutary youve made your own bed, now lie in it quality.
Del. & Hudson Ry. Co. v. Knoedler Mfrs., Inc., 781 F.3d 656,
667-68 (3d Cir. 2015).
Although none of these cases address FAA preemption, their
reasoning applies equally here.
from

carving

out

wholesale

FAA preemption prevents states

exceptions

Concepcion, 131 S. Ct. at 1747.

parties

from

agreeing

specific claims.

to

to

arbitration.

See

It does not prevent private

litigate,

rather

than

arbitrate,

Again, the parties were free under Maryland

Franchise Law to either arbitrate or litigate the Franchisees

claims.

See Holmes, 649 A.2d at 368; see also Muriithi, 712

F.3d at 179 (compelling arbitration of Maryland Franchise Law

claims).

As set forth in the Maryland Clause, they agreed to

litigate the Maryland Franchise Law claims in Maryland.

Nothing

in the FAA preempts or prohibits the parties from making that

choice.
Dickeys argues this law does not apply because it did not
voluntarily

include

the

Maryland

Clause

in

the

agreements.

Rather, Dickeys asserts that both Maryland law and the Maryland
Commissioner of Securities forced it to include the Clause in

preemption is a matter of federal not state law, and so Neal

does not control here.
37

the agreements as a condition precedent to doing business in

Maryland. 22
anything.

We

disagree.

Dickeys

was

not

forced

to

do

If Dickeys did not want to include the Maryland

Clause, it had several options.

to do business in Maryland.

It could have simply declined

Or, like the dealer in Saturn, it

could have filed a declaratory action challenging the Maryland

Commissioner

of

Securities

position

Maryland Clause in its agreements.

before

including

the

See Saturn, 905 F.2d at 721;

see also Sec. Indus. Assoc. v. Connolly, 883 F.2d 1114 (1st Cir.
1989) (finding that FAA preempted state law which was required
to be incorporated in contracts, but only where challengers sued
for a declaratory order before incorporating the provision in
their contracts).
Dickeys did neither, however.

Instead, it chose to add

the Maryland Clauses to its agreements so that it could reap the

benefits of conducting its franchise business in Maryland.

It

then waited nearly two years after including the Maryland Clause
in

its

franchise

agreements

before

purported required inclusion of them.

22

challenging

the

states

Simply put, Dickeys had

In support, Dickeys cites a declaration executed by the

attorney who drafted the franchise agreements.
Neither the
declaration nor the parties briefing cites the applicable law
mandating inclusion of the Maryland Clause in the agreements,
and our research has not revealed any such law.
The parties
also dispute whether the declaration constitutes inadmissible
hearsay.
Because we conclude the declaration is irrelevant in
the first instance, we need not address these issues.
38

multiple options other than agreeing to the Maryland Clause.

In

this scenario, we are comfortable holding Dickeys to the terms

of the agreements.

IV.
Finally, Dickeys requests that we stay the Franchisees
Maryland

Franchise

Law

claims

in

the

district

court

pending

conclusion of the arbitration on its common law claims.

The

district court did not decide this issue because it did not
decide whether arbitration should proceed at all.
grant

such

stay

is

matter

within

the

Whether to

district

courts

discretion, Am. Recovery Corp., 96 F.3d at 97, so we leave it to

the district court to decide this matter in the first instance
on remand.

V.
For the foregoing reasons, we vacate the district courts
order and remand for further proceedings.
VACATED AND REMANDED

39