One of our unpublished decisions suggests a "claim" in this context means "any allegation stemming from the ‘same nucleus of operative facts,’ whatever the theory of recovery." Sabatelli v. Baylor Scott & White Health , 832 F. App'x 843, 849 (5th Cir. 2020) (per curiam). But our published decisions in Subway and Cooper do not contain this refinement.
We aligned with that majority in two recent unpublished decisions. See Sabatelli v. Baylor Scott & White Health , 832 F. App'x 843, 848 n.3 (5th Cir. 2020) (per curiam); Vine v. PLS Fin. Servs., Inc. , 689 F. App'x 800, 802–03 (5th Cir. 2017) (per curiam). And we see no reason to change course here.
The case here is an unusual one because Lemire filed this lawsuit in state court and now wants to pursue arbitration. Sabatelli v. Baylor Scott & White Health, 832 Fed.Appx. 843, 848 (5th Cir. 2020) (“It is unusual for the plaintiff who filed the court action to later want to pursue arbitration.
We aligned with that majority in two recent unpublished decisions. See Sabatelli v. Baylor Scott & White Health, 832 Fed.Appx. 843, 848 n.3 (5th Cir. 2020) (per curiam); Vine v. PLS Fin. Servs., Inc., 689 Fed.Appx. 800, 802-03 (5th Cir. 2017) (per curiam). And we see no reason to change course here.
. See also Sabatelli v. Baylor Scott & White Health, 832 Fed.Appx. 843, 848 (5th Cir. 2020) (per curiam) (“Arbitration can be waived.”). In Ruiz the Fifth Circuit explained that
Finally, the Fifth Circuit has noted that the “impetus for the plaintiff's change of heart in Nicholas was removal to federal court, so she was no longer in her desired forum.” Sabatelli v. Baylor Scott & White Health, 832 Fed.Appx. 843, 848 (5th Cir. 2020) (per curiam).
Sabatelli v. Baylor Scott & White Health, 832 Fed.Appx. 843, 848 (5th Cir. 2020) (cleaned up).Id.
Here, in contrast, whether Caremark waived its right to arbitrate through litigation conduct in this judicial forum is a distinct issue from the underlying arbitrability of the dispute. See In re Intuniv Antitrust Litig., 2021 WL 517386, at *8 (concluding that the Supreme Court's decision in Henry Schein did not upset Marie’s holding); see also Sabatelli v. Baylor Scott & White Health, 832 F. App'x 843, 848 n.3 (5th Cir. 2020) (noting that litigation-conduct waiver "is an issue for the court, rather than the arbitrator, to decide ... because it ‘implicates courts’ authority to control judicial procedures or to resolve issues ... arising from judicial conduct’ ") (quoting Vine v. PLS Fin. Srvs., Inc., 689 F. App'x 800, 802–03 (5th Cir. 2017) ); Ehleiter v. Grapetree Shores, Inc., 482 F.3d 207, 219 (3d Cir. 2007). Caremark further highlights that the current version of the AAA's Commercial Rules states that "[n]o judicial proceeding by a party relating to the subject matter of the arbitration shall be deemed a waiver of the party's right to arbitrate."
In an unpublished opinion, the Fifth Circuit recently noted that arbitration waiver is usually asserted against defendants, stating "It is unusual for the plaintiff who filed the court action to later want to pursue arbitration." Sabatelli v. Baylor Scott & White Health, 832 Fed. App'x 843, 848 (5th Cir. 2020). When the plaintiff is the reason there is a lawsuit in the first place, the first requirement for implied waiver will generally be satisfied.
Compare Energy Conversion, 2014 WL 2763648, at *1 (discussing the 28 U.S.C. § 1404 transfer of venue standard, which allows transfer when doing so serves "the convenience of parties and witnesses" and is "in the interest of justice") with Johnson Assocs., 680 F.3d at 717 (discussing the strong presumption in favor of arbitration and the waiver standard, which requires actions inconsistent with reliance on the agreement and prejudice to the opposing party). First, Truist cites Commodity Resources, Inc. v. Certain Underwriters at Lloyds, London, No. 2:12-cv-10173, 2013 WL 3716385 (E.D. Mich. July 12, 2013) and Sabatelli v. Baylor Scott & White Health, 832 F. App'x 843 (5th Cir. 2020) (per curiam) as authority for its contention that commencing litigation is itself inconsistent with reliance on an arbitration agreement. (Id. at PageID 307-08.)