Let’s say your client gets sued in court, the parties have an arbitration agreement, and you want to compel arbitration right away and not mess around with any other court proceedings. You already know you can make a motion to compel instead of an Answer, but you are stuck on this: what do you call the motion?

Let’s face it, neither the federal or state rules of civil procedure line up perfectly with the FAA (for example, Rule 12 does not list “motion to compel arbitration” as a potential responsive pleading). Today’s post is designed to help you figure out what subsection of Rule 12 to identify when you make your motion to compel arbitration straight out of the box. In short, not all federal appellate courts have spoken on this issue, and the ones that have are divided on whether a motion to compel arbitration should be made under Federal Rule 12(b)(1), 12(b)(3), or 12(b)(6).

Federal courts in six circuits have treated motions to compel arbitration as motions to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1). A district court in the Eleventh Circuit is the only court to expressly state that motions to compel arbitration should be brought under Rule 12(b)(1). MRI Scan Ctr., L.L.C. v. Nat’l Imaging Assocs., Inc., No. 13–60051–CIV, 2013 WL 1899689, at *2 (S.D. Fla. May 7, 2013). However, in the Second, Sixth, Eighth, Ninth, and Federal Circuits litigants have been permitted to bring motions to compel under the 12(b)(1) standard. See, e.g., Geographic Expeditions, Inc. v. Estate of Lhotka, 599 F.3d. 1102, 1106–07 (9th Cir. 2010); U.S. ex rel. Lighting & Power Servs., Inc. v. Inferface Constr. Corp., 553 F.3d 1150, 1152 (8th Cir. 2009); Harris v. United States, 841 F.2d 1097, 1099 (Fed. Cir. 1988); Multiband Corp. v. Block, No. 11–15006, 2012 WL 1843261, at *5 (E.D. Mich. May 21, 2012); Orange Cnty. Choppers, Inc. v. Goen Techs. Corp., 374 F. Supp. 2d 372, 373 (S.D.N.Y. 2005).

Other circuits take a different position asserting that motions to compel arbitration should be brought under Rule 12(b)(3) for improper venue. The Fourth and Seventh Circuits adopt this approach. These circuits reason that because arbitration clauses are a type of forum selection clause and therefore concern venue, motions to compel arbitration should be brought under Rule 12(b)(3). Gratsy v. Colo. Technical Univ., 599 Fed. App’x 596, 597 (7th Cir. 2015); Hayes v. Delbert Servs. Corp., No. 3:14:–cv–258, 2015 WL 269483, at *4 n.1 (E.D. Va. Jan. 21, 2015).

Only one circuit adopts Rule 12(b)(6) — failure to state a claim upon which relief can be granted — as the proper subpart for a motion to compel arbitration. The Third Circuit explicitly rejects the practice of bringing motions to compel arbitration under 12(b)(3) and requires that motions to compel arbitration should be made under Rule 12(b)(6). Palko v. Airborne Express, Inc., 372 F.3d 588, 597–98 (3rd Cir. 2004); Lomax v. Meracord L.L.C., No. 13–1945 (SRC), 2013 WL 5674249, at *6 n.3 (D.N.J. Oct. 16, 2013).

The First, Fifth, Tenth, and D.C. Circuits have yet to address the issue.

The following chart summarizes the federal appellate courts’ treatment of motions to compel arbitration:

Clcik here to view table.