United States District Court, District of Columbia
P. MEHTA UNITED STATES DISTRICT JUDGE
2, 2017, the court denied Defendant Dream Catcher
L.L.C.'s Motion to Stay and Compel Arbitration
(“Arbitration Opinion”). See Mem. Op.
& Order, ECF No. 27 [hereinafter Arbitration Op.]. Then,
on July 3, 2017, Dream Catcher invoked Section 16 of the
Federal Arbitration Act, 9 U.S.C. §16, and noticed an
appeal from the court's Arbitration Opinion. Defs.'
Notice of Appeal, ECF No. 30. The question now before the court
is whether it retains jurisdiction over any aspect of this
case. Defendants assert that binding Circuit precedent
divests this court of jurisdiction pending the outcome of
their appeal and, as a result, this matter must be stayed in
its entirety, including the claims against Individual
Defendants Cesar De Armas and Heidi Schultz. See
Defs.' Bench Mem. Re: Continuing Jurisdiction Pending
Appeal, ECF No. 35 [hereinafter Defs.' Br.], at 1-3
(citing Bombardier Corp. v. Nat'l R.R. Passenger
Corp., No. 02-7125, 2002 WL 31818924, at *1 (D.C. Cir.
Dec. 12, 2002)). Plaintiff Stephen Kelleher, on the other
hand, maintains that the question of the court's
continuing jurisdiction over this matter remains unsettled in
this Circuit and, in any event, the court should maintain
jurisdiction because Dream Catcher's appeal is frivolous.
See Pl.'s Br. in Supp. of Continuing
Jurisdiction Pending Interlocutory Appeal, ECF No. 33
[hereinafter Pl.'s Br.], at 2-4. Alternatively, Plaintiff
argues that the Notice of Appeal divests the court of
jurisdiction only as to the narrow issue of arbitrability,
and that the court otherwise maintains jurisdiction over the
remaining issues as to all Defendants. See Id. at 5.
For the reasons that follow, the court finds that Dream
Catcher's appeal is frivolous and, therefore, it will
maintain jurisdiction over the case during the pendency of
that appeal, unless the D.C. Circuit directs otherwise.
remains unsettled in this Circuit whether a district court
retains jurisdiction over a matter in which a party seeks an
immediate appeal under Section 16 of the Federal Arbitration
Act, 9 U.S.C. § 16. Both sides have identified
Bombardier Corporation v. National Railroad Passenger
Corporation as the applicable precedent in this Circuit,
but disagree as to its binding effect. 2002 WL 31818924 at
*1. In Bombardier, an unpublished per curiam order,
a motions panel of the D.C. Circuit denied as
“unnecessary” a motion to stay proceedings in the
district court pending appeal from the denial of a motion to
compel arbitration, because “a non-frivolous appeal
from the district court's order divests the district
court of jurisdiction over those aspects of the case on
appeal.” Id. Importantly, the court added that
“the district court may not proceed until the appeal is
resolved.” Id. A merits panel later confirmed
the motions panel's finding that the district court was
divested of “jurisdiction over the underlying action
until we could determine the threshold issue of whether the
dispute between the parties is arbitrable under the
FAA.” Bombardier Corp. v. Nat'l R.R. Passenger
Corp., 333 F.3d 250, 252 (D.C. Cir. 2003). Plaintiff is
correct that the unpublished per curiam order in
Bombardier does not constitute binding precedent.
See In re Grant, 635 F.3d 1227, 1232 (D.C. Cir.
2011) (holding that “unpublished dispositions should
not strictly bind panels of the court. . . . [and] do not
constrain a panel of the court from reaching a contrary
conclusion in a published opinion after full consideration of
the issue”). Nonetheless, an unpublished opinion is
“persuasive authority, ” id., and, for
that reason, the court follows the rule set forth in
Bombardier here. Accordingly, unless the court
concludes that Dream Catcher's appeal is
“frivolous, ” it lacks jurisdiction over these
proceedings until the appeal is decided.
appeal is frivolous “when its disposition is
‘obvious, ' and the legal arguments are
‘wholly without merit.'” Reliance Ins.
Co. v. Sweeny Corp., 792 F.2d 1137, 1138 (D.C. Cir.
1986) (quoting Gattuso v. Pecorella, 733 F.2d 709,
710 (9th Cir. 1984)). Applying that standard here, the court
finds Dream Catcher's appeal to be frivolous, largely for
the reasons outlined in both its Arbitration Opinion and
Reconsideration Opinion. The controlling precedent in this
Circuit regarding the forfeiture of the right to arbitrate is
Zuckerman Spaeder v. Auffenberg. 646 F.3d 919 (D.C.
Cir. 2011). There, the court held that a party
presumptively forfeits its right to arbitrate unless it
invokes that right “on the record at the first
available opportunity, typically in filing his first
responsive pleading or motion to dismiss.” Id.
at 922. A party that fails to timely invoke, nevertheless,
may still prevail on a later filed motion to stay
“provided his delay did not prejudice his opponent or
the court.” Id. at 923.
case, it is beyond dispute that Dream Catcher failed to
invoke the right to arbitrate at the first available
opportunity and that its untimely invocation resulted in
prejudice to Plaintiff and, to a lesser extent, the court.
Dream Catcher did not assert the right to arbitrate as an
affirmative defense in its Answer, which it filed within ten
days of removing the case to this court. See Answer
of Dream Catcher, L.L.C., ECF No. 4. Even after Plaintiff
filed an Amended Complaint two months later, Dream Catcher
did not invoke its right to arbitrate, but instead merely
“reserv[ed]” the right to do so. See
Dream Catcher L.L.C.'s Mot. to Dismiss, ECF No. 16, at 1
n.1. By the time Dream Catcher finally asserted its right to
arbitrate “on the record” by filing its Motion to
Stay, see Dream Catcher L.L.C.'s Mot. to Stay
& Mot. to Compel Arbitration, ECF No. 21, nearly six
months had passed since the filing of its Answer. During that
time, (1) the parties met and conferred about a discovery
schedule, see Meet and Confer Statement, ECF No. 9;
(2) the court held an initial scheduling conference and
issued a scheduling order, see Order, ECF No. 10;
(3) the court ruled on the Individual Defendants' Motion
to Dismiss, see Mem. Op. & Order, ECF No. 11;
(4) Plaintiff prepared and filed an Amended Complaint,
see Pl.'s Am. Compl., ECF No. 13; (5) Plaintiff
made his initial disclosures under Rule 26(a)(1) of the
Federal Rules of Civil Procedure, see Pl.'s Rule
26(a)(1) Statement, ECF No. 14; (6) Plaintiff responded to
separate motions to dismiss filed by Dream Catcher and the
Individual Defendants, see Pl.'s Opp'ns to
Defs.' Mots. to Dismiss, ECF Nos. 17, 18; (7) Plaintiff
prepared and served requests for documents and
interrogatories, to which Defendants never responded,
see Pl.'s Opp'n to Dream Catcher's Am.
Mot. to Stay, ECF No. 25 at 4; and (8) Plaintiff attempted to
set deposition dates for a corporate representative of Dream
Catcher and the Individual Defendants, which Defendants
refused to discuss, see Id. In light of this
timeline, any contention by Dream Catcher that it timely
invoked the right to arbitrate or that its delay did not
result in prejudice is “wholly without
merit.”Reliance Ins. Co., 792 F.2d at
1138. Accordingly, the court will maintain jurisdiction over
this case, unless directed otherwise by the D.C. Circuit.
 On the same day Defendants filed their
Notice of Appeal, Defendant Dream Catcher also moved the
court to reconsider its decision to deny the Motion to Stay.
See Def. Dream Catcher, L.L.C.'s Mot. for
Recons., ECF No. 29. The court denied that motion on
July 10, 2017 (“Reconsideration Opinion”).
See Mem. Op. & Order, ECF No. 32 [hereinafter
Recons. Op.]. Defendants have not, however, filed a notice of
appeal or an amended notice of appeal from the decision
denying reconsideration. See Fed. R. App. P.
 Only Defendant Dream Catcher moved to
stay and to compel arbitration, as it is the only party to
the underlying agreement. See Dream Catcher, L.L.C.'s
Am. Mot. to Stay, ECF No. 22. Nevertheless, the
Individual Defendants assert that this matter must be stayed
as to them, too, to avoid “incongruous” rulings.
See Defs.' Br. at 3.
 Plaintiff correctly points out that
other circuits are split on the issue. See Pl.'s
Br. at 1-2. The majority view is that an appeal under Section
16 of the FAA divests the district court of jurisdiction as
to the underlying claims, so long as the appeal is not
frivolous. See Levin v. Alms and Assocs., Inc., 634
F.3d 260, 263-64 (4th Cir. 2011) (collecting cases and
adopting the majority rule followed by the Third, Seventh,
Tenth, and Eleventh Circuits). The minority view, on the
other hand, is that a Section 16 appeal does not divest the
district court of jurisdiction. See id. (noting that
the Second and Ninth Circuits have adopted the minority
 Because the court will retain
jurisdiction over this matter, the court need not decide the
thornier question of whether the court might still retain
jurisdiction with respect to the claims against the
Individual Defendants, who did not move to stay pending
arbitration and are not parties to the underlying
 Dream Catcher did not cite
Zuckerman Spaeder in its Motion to Stay.
Nevertheless, because Dream Catcher has preserved the general
issue of arbitrability for appeal, the court assumes that the
D.C. Circuit will allow it to argue that this court
misapplied Zuckerman Spaeder. Cf. Shea v. Kerry, 796
F.3d 42, 54 (D.C. Cir. 2015). Of course, the Circuit may
 The court already has explained its
reasons for rejecting Dream Catcher's belated attempt to
distinguish Zuckerman Spaeder, see Recons. Op., and