FILED
                                                             United States Court of Appeals
                                   PUBLISH                           Tenth Circuit

                  UNITED STATES COURT OF APPEALS December 11, 2018
                                                                Elisabeth A. Shumaker
                         FOR THE TENTH CIRCUIT                      Clerk of Court
                         _________________________________

WAKAYA PERFECTION, LLC, a
Utah limited liability company;
TODD SMITH, an individual;
BLAKE GRAHAM, an individual;
DAVE PITCOCK, an individual;
BARB PITCOCK, an individual;
ANDRE VAUGH, an individual;
TOTAL NUTRITION, INC, d/b/a
TNT a Utah corporation,

     Plaintiffs - Appellants,             -
                                                       No. 17-4178
v.

YOUNGEVITY INTERNATIONAL,
INC., a California corporation;
STEVE WALLACH, an individual;
MICHELE WALLACH, an
individual; DAVE BRISKIE, an
individual,

     Defendants - Appellees.
                        _________________________________

                Appeal from the United States District Court
                           for the District of Utah
                       (D.C. No. 2:16-CV-00315-DN)
                        _________________________________

Jonathan O. Hafen (Jonathan R. Schofield, Michael S. Anderson, and
Cynthia D. Love, with him on the briefs), of Parr Brown Gee & Loveless,
Salt Lake City, Utah, for Plaintiffs-Appellants.

Jonathan W. Emord (Peter A. Arhangelsky with him on the briefs), of
Emord & Associates, Gilbert, Arizona, for Defendants-Appellees.
                          _________________________________

Before BACHARACH, EBEL, and MORITZ, Circuit Judges.
                 _________________________________

BACHARACH, Circuit Judge.
                  _________________________________

      This appeal involves the interplay between two related lawsuits. In

the first one, Wakaya Perfection, LLC and its principals sued Youngevity

International Corp. and its principals in Utah state court. The Youngevity

parties responded by bringing their own suit against the Wakaya parties in

a California federal district court and removing the Utah case to federal

court. These steps resulted in concurrent federal cases sharing at least

some claims and issues. For example, in both cases, the parties disagreed

over whether Wakaya could bring its claims in court rather than in

arbitration.

      The California litigation progressed; and in November 2017, the

federal district court in Utah ordered dismissal, holding that

              the court should abstain from exercising jurisdiction under the
               Colorado River test and

              an arbitrator would need to decide the arbitrability of Wakaya’s
               claims. 1



1
      The district court also concluded that an arbitrator would need to
decide the arbitrability of all of the Wakaya parties’ claims. But the issue
here involves the arbitrability of claims brought by Wakaya itself rather
than the other Wakaya parties.

                                         2
      We reverse on both grounds: The court applied the wrong abstention

test and erroneously ruled that an arbitrator should decide whether

Wakaya’s claims are arbitrable.

                            Issues in the Appeal

I.    The district court erroneously applied the Colorado River test in
      dismissing the Utah lawsuit.

      The district court erred in using an inapplicable test when deciding

whether to dismiss the Utah lawsuit.

      A.    Reversal is necessary when the district court applies the
            wrong test.

      We apply the abuse-of-discretion standard when reviewing a district

court’s decision to abstain from exercising jurisdiction over one of two

duplicative federal cases. Hartsel Springs Ranch of Colo., Inc. v. Bluegreen

Corp., 

, 985 (10th Cir. 2002). A district court abuses its

discretion when it bases a decision on an erroneous legal conclusion.

Kansas v. United States, 

, 1227 (10th Cir. 2001); see also

Sprint Nextel Corp. v. Middle Man, Inc., 

, 535 (10th Cir.

2016) (stating that a district court’s application of the wrong legal standard

constitutes an abuse of discretion). We must therefore reverse when the

district court applies the wrong test. See Sierra Club v. Cargill, 

, 1548 (10th Cir. 1993) (reversing because the “[t]he district court

abused its discretion” in applying “the wrong standard of review and, as a

result, the wrong analytical framework”).
                                       3
      B.    The district court applied the wrong test by treating the
            Colorado River test as controlling on abstention when both
            cases are in federal court.

      The district court applied the abstention test set out in Colorado

River Water Conservation District v. United States, 

(1976). In

this opinion, the Supreme Court recognized a narrow doctrine permitting a

federal court to abstain from exercising jurisdiction when a parallel case

exists in state court. Colo. 

. Given the narrowness of

this doctrine, the Colorado River test requires “exceptional circumstances”

and an “important countervailing interest” for a federal court to abstain

from exercising jurisdiction based on pending litigation in state court. 

of Allegheny v. Frank Mashuda Co., 

, 189

(1959)); see also Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp.,

, 16 (1983) (noting that “the balance [is] heavily weighted in

favor of the exercise of [federal] jurisdiction” in a case involving state-

federal concurrent litigation).

      In this appeal, we must decide whether the Colorado River test

controls when both of the cases are in federal court. We have recognized

that the test applies when one of the cases is in state court. Rienhardt v.

Kelly, 

, 1302 (10th Cir. 1999). In this circumstance, we have

applied the Colorado River test and recognized eight pertinent factors:

      1.    the possibility that one of the two courts has exercised
            jurisdiction over property


                                       4
      2.    the inconvenience from litigating in the federal forum

      3.    the avoidance of piecemeal litigation

      4.    the sequence in which the courts obtained jurisdiction

      5.    the “vexatious or reactive nature” of either case

      6.    the applicability of federal law

      7.    the potential for the state-court action to provide an effective
            remedy for the federal plaintiff

      8.    the possibility of forum shopping.

Fox v. Maulding, 

, 1082 (10th Cir. 1994).

      Here, however, both of the parallel cases were pending in federal

court. In this situation, courts elsewhere have held that the Colorado River

test does not apply. See Missouri ex rel. Nixon v. Prudential Health Care

Plan, Inc., 

, 953 (8th Cir. 2001) (“By its own terms, Colorado

River applies only to concurrent state and federal litigation.”); Levy v.

Lewis, 

, 967 (2d Cir. 1980) (“[I]t is clear . . . that abstention

for purposes of judicial economy from exercising its jurisdiction under

Colorado River applies only where concurrent federal-state jurisdiction

exists.”); cf. Life-Link Int’l, Inc. v. Lalla, 

, 1494 (10th Cir.

1990) (per curiam) (“[Paris v. Affleck, 

(M.D. Fla. 1977)]

was a removal case regarding whether claims could be concurrently




                                       5
litigated in two federal courts and, thus, is inapplicable to this case of

concurrent litigation as between a state and a federal court.”). 2

      These holdings comport with Colorado River itself in that the

Supreme Court recognized the need for different approaches depending on

whether the concurrent litigation involves

           parallel cases in federal courts or

           parallel cases in federal and state courts.

Colo. 

; see also Missouri ex rel. 

(observing that the Supreme Court had contrasted its holding in

Colorado River, which focused on concurrent federal-state litigation, with

cases involving concurrent federal litigation). The need for a difference in

approaches stems from the different purposes underlying each type of

abstention: When a federal district court defers in favor of another federal

case, the only concern is venue because federal jurisdiction will be

exercised in one of the two districts. As a result, “no precise rule” has


2
      Although the Utah action began in state court, the Youngevity parties
removed the case prior to the dismissal. So at the time of the dismissal, the
Colorado River test did not apply because the case was no longer in state
court. See Kirkbride v. Continental Cas. Co., 

, 734 (9th Cir.
1991) (stating that the Colorado River “doctrine is inapplicable here
because FDIC removed the entire case to federal court; therefore there was
no concurrent or pending state court proceeding when the appellees moved
for remand”); Noonan South, Inc. v. Volusia Cty., 

, 382 (11th
Cir. 1988) (stating that the case did not fit within Colorado River
abstention because the state-court action had been removed to federal
court).

                                       6
emerged to govern abstention when two federal district courts are

addressing similar suits between the same parties. Colo. 

; see Katz v. Gerardi, 

, 1217 (10th Cir. 2011).

      The Youngevity parties apparently recognized this distinction when

seeking sanctions; there they acknowledged that the Colorado River factors

are immaterial when both cases are pending in federal court:

            Furthermore, Youngevity did not address the Colorado
      River factors because those factors are irrelevant when two
      duplicative suits are pending in federal court. Those factors are
      relevant only when determining whether to dismiss a federal
      suit in favor of a concurrent state suit. Indeed, the Wakaya
      Parties concede that those factors would apply only where a
      federal court decides whether to dismiss a federal action in
      favor of a concurrent and duplicative state suit. In their
      Opening Appeal Brief, however, the Wakaya Parties argued that
      the district court misapplied those exact same factors in
      dismissing a concurrent federal suit. The Wakaya Parties now
      concede that those factors are inapplicable to concurrent
      duplicative federal proceedings.

Appellees’ Reply to Appellants’ Opp. to Mot. for Sanctions at 12 (citations

omitted). But in their response brief, the Youngevity parties take a

different approach, arguing that the Colorado River test applies even when

both of the parallel cases are in federal court.

      For this argument, the Youngevity parties rely on a single sentence in

United States v. Rice, 

(8th Cir. 2010), insisting that it

recognizes the applicability of Colorado River when both cases are in

federal court. In Rice, the defendant argued unsuccessfully that the district

court should have abstained under Colorado River. In rejecting this
                                       7
argument, the Eighth Circuit Court of Appeals stated: “Colorado River

abstention arises in limited ‘situations involving the contemporaneous

exercise of concurrent jurisdictions, either by federal courts or by state and

federal courts.’” 

(quoting Colo. River Water Conservation Dist.

v. United States, 

, 817 (1976)).

      The Eighth Circuit was quoting part of a passage from Colorado

River, where the Supreme Court had contrasted

           the principles supporting abstention in cases involving
            concurrent litigation and

           the principles supporting abstention in other situations.

The passage in Colorado River had stated:

      Although this case falls within none of the abstention
      categories [that we have previously recognized], there are
      principles unrelated to considerations of proper constitutional
      adjudication and regard for federal-state relations which govern
      in situations involving the contemporaneous exercise of
      concurrent jurisdictions, either by federal courts or by state and
      federal courts. These principles rest on considerations of
      “[w]ise judicial administration, giving regard to conservation
      of judicial resources and comprehensive disposition of
      litigation.” Generally, as between state and federal courts, the
      rule is that “the pendency of an action in the state court is no
      bar to proceedings concerning the same matter in the Federal
      court having jurisdiction. . . .” As between federal district
      courts, however, though no precise rule has evolved, the
      general principle is to avoid duplicative 

(internal citations omitted). As the full passage reflects,

the Supreme Court had differentiated between cases involving (1)

concurrent federal-state litigation and (2) concurrent federal litigation. 

Rice court observed this distinction, stating that “a necessary premise

of Colorado River abstention is the pendency of ‘parallel state and federal

proceedings.’” 

(citation omitted).

      Unlike the Eighth Circuit and each other circuit court to address the

issue, the district court treated the Colorado River test as controlling in

cases involving concurrent federal litigation. In doing so, the district court

applied the wrong test, treating Colorado River as controlling when it

wasn’t. This error dictates reversal.

      C.    We provide guidance for the district court if it again
            considers abstention.

      Although we conclude that the district court erred by applying the

wrong test, we recognize that we have not yet established a comprehensive

test governing abstention when both cases are in federal court. See Katz v.

Gerardi, 

, 1217 (10th Cir. 2011) (“‘As between federal

district courts . . . no precise rule has evolved.’” (quoting Colo. 

)). We therefore supply guidance for the district court if it

revisits the possibility of abstention.

      When two federal suits are pending, the district court cannot resort to

a “rigid mechanical solution.” Kerotest Mfg. Co. v. C-O-Two Fire Equip.

Co., 

, 183 (1952). As a starting point, courts should apply the

first-to-file rule. See Hospah Coal Co. v. Chaco Energy Co., 

, 1163 (10th Cir. 1982). Under this rule, courts consider three factors:

                                          9
“(1) the chronology of events, (2) the similarity of the parties involved,

and (3) the similarity of the issues or claims at stake.” Baatz v. Columbia

Gas Transmission, LLC, 

, 789 (6th Cir. 2016). But these

factors are not exhaustive, and other equitable factors may bear on the

inquiry. See 

conduct, bad faith, anticipatory suits,

and forum shopping as equitable considerations).

      1.    The First-to-File Rule

      Our circuit has adopted the first-to-file rule as a baseline. See

Hospah Coal Co. v. Chaco Energy Co., 

, 1163 (10th Cir.

1982). Some early cases in our circuit described this rule as a strict one.

See, e.g., O’Hare Int’l Bank v. Lambert, 

, 331 (10th Cir.

1972) (holding that once a federal district court obtains jurisdiction, “that

right cannot be arrested or taken away by proceedings in another federal

district court”). More recently, we stated that the first-to-file rule is a

“general rule” and that the first court to acquire jurisdiction may not be

ideally suited to decide the merits. Hospah Coal 

–64;

see also Buzas Baseball, Inc. v. Bd. of Regents of the Univ. Sys. of Ga.,

, at *2 (10th Cir. 1999) (unpublished) (noting that the

first-to-file rule “permits,” but does not require, a federal district court to

abstain from exercising its jurisdiction in deference to a first-filed case in

a different federal district court). We therefore consider not only the



                                       10
chronology of events but also the similarities in the parties, issues, and

claims.

       a.   The Chronology of Events

       To determine chronology, we have recognized that “the first court in

which jurisdiction attaches has priority to consider the case” and

jurisdiction “relates back to the filing of the complaint.” Hospah Coal 

(citation omitted). 3 As a result, determining the

chronology of events typically requires only a comparison of the two filing

dates. 4


3
      The Youngevity parties observe that the Wakaya parties had not
served process before the start of the California case. Appellees’ Resp. Br.
at 36. This observation is irrelevant because the operative filing date is
when the complaint was filed. Hospah Coal 

; see p.
14, below (citing Fed. R. Civ. P. 3).
4
      The sequence of filings bears on both the first-to-file rule and the
Colorado River test. But as the Youngevity parties acknowledge, the two
tests vary in the weight placed on which complaint was filed first. When
both cases are pending in federal courts, the first-filed case often obtains
priority. Smart v. Sunshine Potato Flakes, 

, 687 (8th Cir.
2002). But when one of the cases is in state court, the sequence of filing
dates is less likely “to be determinative because of the federal court’s
‘virtually unflagging obligation’ to exercise its jurisdiction.” 

River Water Conservation Dist. v. United States, 

, 817–
18 (1976)).

       The Youngevity parties implicitly recognized this difference, urging
the California court to dismiss the Wakaya parties’ counterclaims based on
the first-to-file rule (rather than the Colorado River test). Even now the
Youngevity parties assert that if the dismissal is overturned, the Wakaya
parties’ claims in Utah should take priority over their counterclaims in the
California case. Appellees’ Resp. Br. at 36 n.10.

                                      11
      But what if one of the complaints was filed initially in state court?

Here, for example, the Utah complaint had been filed in Utah state court

before the Youngevity parties sued in California federal court. The

Youngevity parties eventually removed the Utah action to federal district

court. But by then, the California complaint had already been filed. See

note 2, above. In applying the first-to-file rule, do we consider the date

that the Utah complaint had been filed in state court or the date that the

Utah case was removed to federal court? 5 The district court focused on the

date that the case had been removed. But many district courts in our

circuit 6 and elsewhere 7 have focused on the date that the case was filed in


5
      The Youngevity parties argue that the first-to-file rule does not apply
because the Wakaya parties had filed the Utah case only six days before
the California case was filed. Appellees’ Resp. Br. at 35–36. We disagree:
The first-to-file rule applies regardless of how many days separate the
filings. But district courts can exercise discretion on a case-by-case basis
when weighing the impact of which case was filed first.
6
       E.g., Norrid v. D.A.R.P., Inc., No. 17–401, 

, at *2
(E.D. Okla. June 13, 2018) (“When a state action is removed to federal
court, for first-to-file purposes, the state court filing date is the date used.”
(citation omitted)); MedSpring Grp., Inc. v. Atl. Healthcare Grp., Inc., No.
05–115, 

, at *3 (D. Utah Mar. 7, 2006) (same); United
States v. Kinder Morgan CO2 Co., L.P., No. 04–716, 

, at
*2 (D. Colo. Nov. 21, 2005) (“[T]he first case filed . . . is measured from
the state court filing date, not the date of removal.”).
7
      E.g., Motiv Power Sys., Inc. v. Livernois Vehicle Dev., LLC, No. 13–
4811, 

, at *2 (N.D. Cal. Jan. 9, 2014) (“[T]he date of
removal is immaterial to the first-to-file analysis.”); Innovation Ventures,
L.L.C. v. Custom Nutrition Labs., L.L.C., 

, 756 (E.D.
Mich. 2008) (“[T]he date the removed action was filed in state court is the
controlling date to determine which of two actions has priority. The date of
                                       12
state court rather than the removal date. We agree that courts should focus

on the date that the complaint was filed in state court. To do otherwise

would reward gamesmanship. See Kohn Law Grp., Inc. v. Auto Parts Mfg.

Miss., Inc., 

, 1240 (9th Cir. 2015) (applying the first-to-file

rule to avoid gamesmanship).

      The power of removal rests solely with the defendants. See 28 U.S.C.

§ 1446(b)(1). So focusing on the removal date would allow defendants to

manipulate the first-to-file rule by suing in another forum before removing

the first case. This sort of manipulation would allow defendants, not

plaintiffs, to select the forum for the plaintiff’s claim. See Gulf Oil Corp.

v. Gilbert, 

, 508 (1947) (recognizing that “the plaintiff’s

choice of forum should rarely be disturbed”).

removal is immaterial.”); Feinstein v. Brown, 

, 283
(D. R.I. 2004) (concluding that the plaintiffs’ case had been filed first
based on the date that the petition had been filed in state court prior to
removal); First Health Grp. Corp. v. Motel 6 Operating L.P., No. 00–524,

, at *2 (N.D. Ill. July 17, 2000) (“Motel 6’s suit, when
removed to federal court, must be treated as though it started in federal
court as of the date it was filed in state court.”); Affinity Memory & Micro,
Inc. v. K & Q Enter., Inc., 

, 954 n.10 (E.D. Va. 1998)
(“When a state action is removed to federal court, for first-to-file
purposes, the state court filing date is the date used.”); 800-Flowers, Inc.
v. Intercontinental Florist, Inc., 

, 131 n.1 (S.D.N.Y. 1994)
(“Where a state action is subsequently removed to federal court, for the
purposes of the First-to-File Rule, ‘the state court filing date is the
relevant benchmark.’” (citation omitted)); Igloo Prods. Corp. v. The
Mounties, Inc., 

, 217 (S.D. Tex. 1990) (“The question is
whether in applying the first-filed rule, the Court should look to the date
on which the Oregon state court suit was filed or the date on which it was
removed to federal court. The Court considers the date of filing in state
court to be the relevant benchmark.”).
                                      13
      The Youngevity parties point out that the court in Hospah Coal

described the operative date as the date in which “jurisdiction attaches.”

Hospah 

. Out of context, this description could

arguably be interpreted as a reference to the removal date. But in context,

the Hospah Coal court was not referring to the removal date: The court

used the phrase “jurisdiction attaches” when discussing cases initially filed

in federal court, where the filing dates also constituted the dates that

jurisdiction attached. 

1163; see Fed. R. Civ. P. 3 (“A civil

action is commenced by filing a complaint with the court.”). In this

context, the court held that we should compare concurrent cases based on

the date that the complaint was filed: We have no reason to jettison that

approach when considering cases removed from state court. See Wallace v.

Microsoft Corp., 

, 706 (10th Cir. 2010) (“‘After the removal

of an action from state court . . . the case will proceed as if it originally

had been brought in the federal court.’” (quoting 14C Wright et al.,

Federal Practice and Procedure § 3738 at 692–98 (4th ed. 2009)). 8 We


8
      The Ninth Circuit Court of Appeals has also recognized priority
under the first-to-file rule for “the court which first acquired jurisdiction.”
Pacesetter Sys., Inc. v. Medtronic, Inc., 

, 95 (9th Cir. 1982).
But district courts in the Ninth Circuit have recognized that this priority
refers to the filing of the complaint in state court rather than the removal.
E.g., SVF Weston Lakeside, LLC v. Certain Underwriters at Lloyds of
London, No. 16–7676, 

, at *1 n.1 (C.D. Cal. Feb. 9,
2017) (stating that “for the purposes of this first-to-file analysis,” the
pertinent date is when the plaintiff had filed the complaint in state court
rather than the removal date); Diversified Metal Prod., Inc. v. Odom
                                       14
therefore focus on the date that the complaint had been filed in state court

rather than the removal date.

      b.    The Similarity of the Parties and the Issues or Claims

      We also consider whether the two cases bear substantial overlap in

(1) the parties and (2) the issues or claims. Baatz v. Columbia Gas

Transmission, LLC, 

, 790–91 (6th Cir. 2016). 9 We place less

weight on similarity when considering abstention in concurrent federal

cases than when one of the cases is in state court; when two federal cases


Indus., Inc., No. 12–00162, 

, at *3 (D. Idaho July 12,
2012) (“At least for the purposes of the first-to-file rule, . . . the filing date
assumed by a removed case is the date the action was filed in state
court.”); Allstate Prop. & Cas. Ins. Co. v. Mercury Plastics, No. 13–1763,

, at *2 (D. Nev. May 27, 2014) (holding that the
pertinent date, for purposes of the first-to-file rule, is the filing date in
state court rather than the removal date); Fakespace Labbs, Inc. v.
Robinson, No. 99–5258, 

, at *2 (N.D. Cal. Nov. 6, 2000)
(“When one of the federal cases has been removed from state court, courts
look to the date on which it was filed in state court [for purposes of the
first-to-file rule].”). The Ninth Circuit Court of Appeals took a similar
approach in an unpublished opinion, applying the first-to-file rule based on
the filing date in state court because “[w]hen an action is commenced in
state court and removed to federal court, the action remains the same.”
Hartford Acc. & Indem. Co. v. Margolis, 

, at *1 (9th Cir.
1992) (unpublished).

9
      The district court described some of the differences between the
parties and issues when discussing the Utah and California cases. But the
court did not discuss the significance of these differences. If the
possibility of abstention is revisited, the district court should consider the
significance of the differences between the two federal cases. See Fox v.
Maulding, 

, 1082 (10th Cir. 1994) (“[T]he court must make its
findings about the parallel nature of the . . . proceedings and the balance of
the factors on the record.” (emphasis removed)).

                                       15
are involved, we do not risk depriving a litigant of a federal forum. Ritchie

Capital Mgmt., L.L.C. v. BMO Harris Bank, N.A., 

, 664 (8th

Cir. 2017).

      2.      Equitable Considerations

      After determining the sequence and similarities in the cases,

“court[s] must also determine whether any equitable considerations . . .

merit not applying the first-to-file rule in a particular case.” Baatz v.

Columbia Gas Transmission, LLC, 

, 789 (6th Cir. 2016).

      We have previously recognized some of these considerations. 10 For

example, we’ve noted that the first-to-file rule may be disregarded “to

prevent a misuse of litigation in the nature of vexatious and oppressive

foreign suits.” O’Hare Int’l Bank v. Lambert, 

, 331 (10th Cir.

1972). And we’ve said that courts need not defer to the first-filed case

when doing so would reward forum shopping. See Span-Eng Assocs. v.

Weidner, 

, 470 (10th Cir. 1985) (noting that a district court

may “take into account circumvention of the rules of procedure or court

rulings” in determining whether to enjoin a party from pursuing one of two

concurrent federal cases). These factors are not exhaustive. For example,

the equitable factors bearing on state-federal concurrent litigation may also

10
      The Wakaya parties argue that the district court erred by considering
only the four equitable factors discussed in Colorado River and failing to
consider other factors recognized in Fox v. Maulding, 

, 1082
(10th Cir. 1994). Appellants’ Opening Br. at 14. We need not address this
argument.
                                      16
apply so long as courts observe that state-federal concurrent litigation

triggers a different test. See pp. 4–9, above.

      D.    The Wakaya parties did not forfeit their challenge to the
            district court’s reliance on the Colorado River test.

      In the alternative, the Youngevity parties argue that the Wakaya

parties forfeited their challenge to the district court’s reliance on the

Colorado River test. We disagree: The district court raised the abstention

issue sua sponte, so the Wakaya parties had no opportunity to address this

issue in the Utah case. 11 We therefore conclude that the Wakaya parties did

not forfeit this challenge.




11
      The Youngevity parties also contended in oral argument that the
Wakaya parties had waived reliance on the first-to-file rule by (1) failing
to seek dismissal of the California litigation and (2) actively litigating in
California for two years. We disagree.

      For the sake of argument, we can assume that the first-to-file rule
could be waived through intentional relinquishment of a known right or
manipulation of the judicial process. Cf. In re Cox Enters., Inc. Set-Top
Cable Television Box Antitrust Litig., 

, 1205 (10th Cir. 2016)
(discussing waiver of a right to arbitration). Here, though, the Wakaya
parties did neither. When the Wakaya parties filed a counterclaim in the
California case, they had already waited over a year for the Utah court to
rule on the motion to dismiss. At that point, the Wakaya parties could have
declined to file a counterclaim in California. But that tactic risked losing
an opportunity to assert the claims anywhere if the Utah court were to
eventually order dismissal. To avoid this risk, the Wakaya parties
protected themselves by filing a counterclaim in California while waiting
for the Utah court to rule. This protective course did not constitute an
intentional relinquishment of a known right or manipulation of the judicial
process.

                                      17
II.   The district court erred by ruling that an arbitrator should
      decide whether Wakaya’s claims were arbitrable.

      The district court ruled that arbitrability should be decided by an

arbitrator. Wakaya challenges this ruling, arguing that the arbitrability of

its claims should be decided by a court rather than an arbitrator. On this

issue, we engage in de novo review. See Hancock v. Am. Tel. & Tel. Co.,

, 1261 (10th Cir. 2012).

      The district court recognized that Wakaya was not a party to the

arbitration agreement, adding that Wakaya’s claims were “likely

arbitrable” because they were intertwined with claims asserted by some of

the parties to the arbitration agreement. Appellants’ App’x, vol. II, at 394.

Ultimately, however, the court declined to decide whether Wakaya was

subject to the arbitration agreement, leaving this question to the arbitrator

to decide.

      If the district court declines to abstain after our remand, the court

would need to decide the arbitrability of Wakaya’s claims. 12 The Supreme

Court has repeatedly held that “[u]nless the parties clearly and

unmistakably provide otherwise, the question of whether the parties agreed

to arbitrate is to be decided by the court, not the arbitrator.” AT&T Techs.,

12
      The Youngevity parties argue that Wakaya’s claims have already
been litigated in California, mooting the arbitration issue. Appellees’ Resp.
Br. at 42–43. But the Youngevity parties are currently appealing the
California court’s ruling on arbitrability. Appellees’ Resp. Br. at 18. Given
the pendency of this appeal, the issue of arbitrability is not moot.

                                      18
Inc. v. Commc’ns Workers of Am., 

, 649 (1986). The parties

might “provide otherwise” by entering into an arbitration agreement. 

did not sign the arbitration agreement. As a result, the

arbitrability of Wakaya’s claims must be decided by a court rather than an

arbitrator. See First Options of Chicago, Inc. v. Kaplan, 

, 943

(1995) (stating that if the parties did not agree to submit the arbitrability

question itself to arbitration, the court should decide this question).

                                      * * *

      If the district court again considers whether Wakaya’s claims are

arbitrable, 13 the court should decide this issue rather than refer it to the

arbitrator.

                 The Youngevity Parties’ Pending Motions

      The Youngevity parties have moved for judicial notice and sanctions.

We grant the motion for judicial notice and deny the motion for sanctions.

      Sanctions are impermissible here because (1) the appeal is not

frivolous and (2) the Wakaya parties did not act in bad faith. By the time

that the Wakaya parties filed their opening brief, they faced two conflicting

judicial conclusions:


13
      If the district court again decides to abstain from exercising
jurisdiction of the Utah action, the court would not need to reach the
arbitration issue. Deciding arbitrability in this situation could create a
conflict with prior rulings in the California case (that are now pending on
appeal).

                                       19
            dicta in the District of Utah that Wakaya’s claims are likely
             arbitrable and

            a ruling in the Southern District of California that the
             Youngevity parties had waived arbitration on Wakaya’s claims
             for a declaratory judgment, breach of contract, breach of the
             covenant of good faith and fair dealing, conversion, and
             tortious interference with existing relations.

Absent an appeal of the Utah ruling, Wakaya faced conflicting decisions.

And the Wakaya parties explain that they

            asserted counterclaims in the California case only because the
             Utah case had stalled and

            planned to seek dismissal of the California case if the motion
             to dismiss in Utah were eventually denied.

See note 11, above. This strategy was reasonable because the Wakaya

parties could otherwise have lost the right to sue in either forum. We

therefore deny the Youngevity parties’ motion for sanctions.

                                 Disposition

     We reverse and remand for further proceedings. We also grant the

Youngevity parties’ motion for judicial notice and deny the motion for

sanctions.




                                      20