Freedman v. Comcast Corp.

MATRICCIANI, J. Appellant, Michael A. Freedman, claimed that appellee, the group of corporate entities known and commonly referred to as “Comcast,” violated the 1997 Maryland Wiretapping and Electronic Surveillance Act, Md.Code (1974, 2006 Repl.Vol.), § 10-402 et seq. of the Courts and Judicial Proceedings Article ¹⁸⁷ (“CJ”). Appellant filed suit in the Circuit Court for Baltimore City and the parties filed several initial pleadings. The circuit court denied appellee’s motion to compel arbitration and dismissed the suit, without prejudice. 1 Appellant twice amended his complaint, and appellee moved again to dismiss and to compel arbitration. The circuit court denied appellee’s motion to dismiss but granted appellee’s motion to compel arbitration and stayed the case.

Appellant then timely noted this appeal. 2 QUESTION PRESENTED Appellant presents one question for our review, which we have edited for clarity: I. Did the Circuit court err in compelling arbitration of appellant’s claims? For the reasons set forth below, we affirm the judgment of the circuit court. FACTS AND PROCEEDINGS Appellant was a Comcast customer from approximately 2001 until the time of this suit. 3 Appellant claims that, at various times and under various circumstances, he dialed 1-800-COMCAST and he did not hear the well-known warning that his phone call might be recorded for security or training purposes. According to appellant, Comcast recorded these conversations in violation of the Maryland Wiretapping and Electronic Surveillance Act.

In May of 2007, appellee distributed a bill insert that notified customers, including appellant, of changes to their “Service Agreements.” The insert gave notice of a new ¹⁸⁸ arbitration provision (the “Arbitration Provision”), which we have reproduced, in part: NOTICE FROM COMCAST REGARDING ARBITRATION THIS NOTICE CONTAINS AN IMPORTANT CHANGE TO YOUR SUBSCRIBER AGREEMENT WITH COM-CAST (THE “AGREEMENT”). PLEASE NOTE THAT THIS CHANGE TO THE AGREEMENT AS SET FORTH BELOW RESTATES AND SUPERSEDES ANY PREEXISTING PROVISION IN THE AGREEMENT CONCERNING ARBITRATION AND TAKES EFFECT THIRTY (30) DAYS AFTER THIS NOTICE WAS MAILED TO YOU (THE “EFFECTIVE DATE”). IF YOU DO NOT WISH TO BE BOUND BY THIS ARBITRATION PROVISION, YOU MUST NOTIFY COMCAST IN WRITING WITHIN THIRTY (30) DAYS FROM THE DATE THAT YOU FIRST RECEIVE THIS AGREEMENT BY VISITING WWW.COMCAST.COM/ ARBITRATIONOPTOUT, OR BY MAIL TO COMCAST IF YOU DO NOT OPT OUT OF ARBITRATION IN THE MANNER INDICATED ABOVE YOUR CONTINUED USE OF THE SERVICE AFTER THE EFFECTIVE DATE SHALL BE DEEMED TO BE YOUR ACCEPTANCE OF THIS CHANGE. THIS CHANGE MAY HAVE A SUBSTANTIAL IMPACT ON THE WAY IN WHICH YOU OR COMCAST WILL RESOLVE ANY DISPUTE WITH ONE ANOTHER.

ARBITRATION a. Purpose: If you have a Dispute (as defined below) with Comcast that cannot be resolved through the informal dispute resolution process described in the Agreement, you or Comcast may elect to arbitrate that Dispute in accordance with the terms of this Arbitration Provision rather than litigate the Dispute in court. Arbitration means you will have a ¹⁸⁹ fair hearing before a neutral arbitrator instead of in a court by a judge or jury. b. Definitions: As used in this Provision, the term “Dispute” means any dispute, claim or controversy between you and Comcast regarding any aspect of your relationship with Comcast that has accrued or may hereafter accrue, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, negligence or any other intentional tort), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Arbitration Provision (with the exception of the enforceability of the class action waiver clause provided in paragraph f(2)). “Dispute” is to be given the broadest possible meaning that will be enforced.

As used in this Provision, “Comcast” means Comcast Cable Communications, LLC, its officers, directors, employees and agents, and all entities using the brand name “Comcast”, including your local cable company, its employees, authorized agents, and its parents, subsidiaries and affiliated companies. As used in this Provision, the term “Arbitration Provision” means all the terms of this notice. Appellant paid the bill containing this insert and he did not choose to opt out of the new arbitration provision within the allotted time. Appellant filed his original complaint on September 11, 2007, in the Circuit Court for Baltimore City, simultaneously moving for a temporary restraining order (“TRO”).

Appellee opposed the TRO and noted its right and intent to arbitrate appellant’s claims, but acknowledged that the Arbitration Provision may allow appellant to seek injunctive relief to maintain the status quo. The circuit court denied appellant’s TRO motion on September 27, 2007. On October 11, 2007, appellee filed a motion to compel arbitration and stay or dismiss the complaint, as well as a ¹⁹⁰ separate motion to dismiss or for summary judgment, 4 which reasserted appellee’s right and intent to arbitrate the dispute. That day, appellee also filed notice of removal to federal court.

The case was remanded on January 31, 2008. On March 21, 2008, the circuit court granted appellee’s motion to dismiss for failure to state a claim and denied appellee’s motion to compel arbitration. 5 Appellant twice amended his complaint, in May and June of 2008, and each time appellee moved to dismiss and to compel arbitration, maintaining its right and intent to arbitrate the dispute. Appellee did not seek summary judgment in these subsequent motions. On October 22, 2008, the circuit court denied appellee’s motion to dismiss but granted appellee’s motion to compel arbitration and stayed the case.

Appellant then timely noted this appeal. 6 DISCUSSION In Maryland, an order of a circuit court compelling arbitration completely terminates the action in the circuit court and is an appealable final judgment under CJ § 12-301. Wells v. Chevy Chase Bank, F.S.B., 363 Md. 232, 241 , 768 A.2d 620 (2001) (citing Horsey v. Horsey, 329 Md. 392, 402-404 , 620 A.2d 305 (1993); Litton Bionetics, Inc. v. Glen Constr. Co., 292 Md. 34 , 41—42, 437 A.2d 208 (1981)); accord Addison v. ¹⁹¹ Lochearn Nursing Home, LLC, 411 Md. 251 , 983 A.2d 138 (2009). Appellant’s primary argument in support of his point of error is that the parties did not agree to arbitrate his claims.

Appellant also presents three alternative arguments: 7 first, that appellee waived its right to arbitrate the claims; second, that the Arbitration Provision is unenforceable because it fails to identify certain parties; and third, that the arbitration provision is unconscionable. 8 A. The Arbitration Provision The Maryland Uniform Arbitration Act (“Maryland Arbitration Act”), now codified in Maryland Code (1974, 2006 Repl.Vol.), CJ § 3-206(a), provides: Except as otherwise provided in this subtitle, a written agreement to submit any existing controversy to arbitration or a provision in a written contract to submit to arbitration any controversy arising between the parties in the future is valid and enforceable, and is irrevocable, except upon grounds that exist at law or in equity for the revocation of a contract. A trial court’s decision to compel or deny arbitration is a conclusion of law, whieh we review de novo to determine whether an agreement to arbitrate existed. Holloman v. ¹⁹² Circuit City Stores, Inc., 391 Md. 580, 588 , 894 A.2d 547 (2006). The Court of Appeals has detailed its approach to these cases: First ... if an arbitration clause is clear, it is initially for the courts to determine whether the subject matter of a dispute falls within the scope of the arbitration clause.

Second, ... in determining whether a dispute falls within the scope of an arbitration clause, arbitration should be compelled if the arbitration clause is broad and does not expressly and specifically exclude the dispute. Third, ... if an arbitration clause is unclear as to whether the subject matter of the dispute falls within the scope of the arbitration agreement, the question of arbitrability ordinarily should be left to the arbitrator. Allstate Ins. Co. v. Stinebaugh, 374 Md. 631, 643 , 824 A.2d 87 (2003) (citing Crown Oil & Wax Co. v. Glen Constr.

Co., 320 Md. 546 , 578 A.2d 1184 (1990); Gold Coast Mall, Inc. v. Lamar Corp., 298 Md. 96 , 468 A.2d 91 (1983)) (internal quotation marks omitted). When construing an arbitration provision, Maryland Courts follow the objective law of contract interpretation. Koons Ford of Balt., Inc. v. Lobach, 398 Md. 38, 47 , 919 A.2d 722 (2007). A court construing an agreement under this objective test must first determine from the language of the agreement itself what a reasonable person in the position of the parties would have meant at the time it was effectuated.

In addition, when the language of the contract is plain and unambiguous there is no room for construction, and a court must presume that the parties meant what they expressed. In these circumstances, the true test of what is meant is not what the parties to the contract intended it to mean, but what a reasonable person in the position of the parties would have thought it meant. Consequently, the clear and unambiguous language of an agreement will not give way to what the parties thought that the agreement meant or intended it to mean. ¹⁹³ Id. (quoting Gen.

Motors Acceptance Corp. v. Daniels, 303 Md. 254, 261 , 492 A.2d 1306 (1985)). Appellant first argues that the amended Arbitration Provision “may not be binding on Appellant,” because there is “nothing to show that Appellant accepted the Services Agreement by continuing to receive cable Service or to show that Appellant signed the Services Agreement before (or since) this action was initiated.... ” Appellant contends that he signed and was bound only by the terms on the reverse side of several work orders. 9 Not only did appellant fail to raise this argument in the circuit court, but he conceded the point in his “Memorandum of Law in Opposition to [Appelleel’s Motion to Compel Arbitration and Stay or Dismiss [Appellant’s Second Amended Complaint.” Appellant’s reply brief points us to page three of the above memorandum, and a subsection titled “A. There is no arbitration provision in existence as to [appellant’s claims.” But the six pages of argument that follow seek to demonstrate that appellant’s claims fall outside the scope of the Arbitration Provision. Nowhere therein does appellant argue that he is not a party to the Arbitration Provision. Indeed, appellant states: “The parties agree that the Circuit Court, when faced with a motion to compel arbitration pursuant to an unambiguous arbitration provision, is charged with determining whether a dispute is within the scope of the agreement.” Appellant’s argument is not couched in the hypothetical; nor does it incorporate by reference the argument that appellant now puts forth.

Therefore, it was not preserved, and we will proceed to interpret the Arbitration Provision as a binding contract between the parties. See Md. Rule 8—131(a); see also Eagan v. Calhoun, 347 Md. 72, 88 , 698 A.2d 1097 (1997) (“Generally speaking, a party will not be permitted to maintain inconsistent positions ...”) (citing 28 Am.Juk.2d Estoppel and Waiver § 68, at 694-95 (1966)). ¹⁹⁴ Second, appellant argues that his claims fall outside the scope of the Arbitration Provision based on the text of the Arbitration Provision itself. Appellant contends that his “claims do not fall within the scope of the Arbitration Provision ... because those claims do not fall within the unambiguous ... definition of ‘Dispute.’ ” The Arbitration Provision defines “Dispute” as “any dispute, claim or controversy between you and Comcast regarding any aspect of your relationship with Comcast that has accrued or may hereafter accrue.” Specifically, appellant argues that the term “relationship” is limited by two sentences in the preamble to the Service Agreement: The terms and conditions in the “GENERAL TERMS AND CONDITIONS” section below are applicable to all Services unless otherwise indicated.... Note: This Agreement contains a binding arbitration provision in Section 13 that affects your rights under this Agreement with respect to all Services.

Appellant’s brief concludes from this that “the Arbitration provision does NOT affect rights NOT with respect to Services” (emphasis in original), and that, because some of his calls may not have been service-related, the preamble places them outside the agreement. Appellant’s logic is faulty. The preamble states that the agreement as a whole applies to and the Arbitration Provision affects all services, but it does not limit the agreement or Arbitration Provision to only services. This language does not prevent the agreement or the Arbitration Provision from applying to aspects of the parties’ “relationship” that were not service-related, including the calls upon which appellant bases his claims. 10 ¹⁹⁵ Third, appellant argues that we should ignore the Arbitration Provision because “the Claims have nothing to do with any contract or agreement of any sort and, similarly, have nothing to do with Appellant’s relationship with [appellee].” Appellant argues that a non-customer who calls about prospective services would not have a “relationship” with appellee, and that because one or more of appellant’s calls were allegedly made before he was a customer, they were not part of his “relationship” with Comcast.

We are not inclined to agree with the general scope appellant attaches to the word “relationship” and whether it applies to non-customers, but we need not resolve this to dispose of the issue before us. 11 It is clear from the record that appellant had a “relationship” with appellee as a customer, and that even if—as his complaint alleges—some initial calls to Comcast were made as a non-customer, they later formed a part of the parties’ relationship by virtue of his having become a customer. See MerriamWbbstbr Online Dictionary, available at http://www.m-w.com/ dictionary/relationship; http://m-w.com/dictionary/related (defining “relationship” as “the state of being related or interrelated” and “related” as “connected by reason of an established or discoverable relation.”) (last visited December 9, 2009). Therefore, we hold only that the term “relationship” is sufficiently broad to include the calls that appellant allegedly made either as a customer or as a non-customer, so that the dispute in this case is captured by the broad language of the Arbitration Provision. Appellant also raises a variant of this argument by stating that “[tjhere is no need ever to refer to the Services Agree ¹⁹⁶ ment, the Arbitration Provision therein, or any Services (whether provided to Appellant or anyone) to fully resolve every aspect of the merits of Appellant’s claims” (emphasis in original).

Appellant concludes this point by stating that “[n]o aspect of Appellant’s relationship with [appellee] ... is about Appellant being subjected to surreptitious, illegal conduct by [appellee].” Again, appellant’s premise is inaccurate. We cannot fully resolve a dispute arising from the parties’ relationship without referring to an agreement that applies to said relationship. And we have already established that the claims in this dispute arise from telephone calls that were part of appellant’s relationship with appellee. While one aspect of some of those phone calls was allegedly illegal, it was nonetheless part of the parties’ relationship and was therefore subject to the Arbitration Provision.

Therefore, appellant’s last argument that his claims are beyond the scope of the Arbitration Provision is unpersuasive, and we must look to the Arbitration Provision to resolve the instant dispute. Before concluding this part of our discussion, we should address footnote twenty-two of appellant’s brief. Because appellant attached this footnote to the broad, concluding sentence of his argument, and because it spans two pages of single-space text and addresses two separate arguments, we feel it should be treated as substantive and included in the body of our discussion. Appellant argues that the clause “you or Comcast may elect to arbitrate that Dispute” implies that, because “Appellant acted first, electing to litigate in court,” the dispute must be heard in court.

Appellant also argues that the Arbitration Provision is contingent upon failure of an “informal dispute resolution process described in this Agreement” but that is never actually described. We rejected both of these arguments in Doyle v. Fin. Am., LLC, 173 Md.App. 370 , 918 A.2d 1266 (2007). The arbitration clause in Doyle included a sentence which read: “However, if you and we are not able to resolve our differences informally, you and we agree that any dispute, regardless of when it arose, shall be resolved, at your option or ours, by arbitration ¹⁹⁷ in accordance with this agreement.” Id. at 377 , 918 A.2d 1266 .

As in Doyle , appellant’s first argument is contrary to the plain and common-sense reading of the clause, which is that if either party elects to arbitrate the dispute, it must be arbitrated. We will not discuss every permutation because it suffices to say that the clause gives either party the option to compel arbitration, but it gives neither party the option to compel litigation. See Id. at 379, 918 A.2d 1266 . Second, appellant argues that because the informal process described elsewhere in the Agreement only applies to certain types of disputes, 12 and not the instant dispute, the condition precedent fails.

We disagree. The Arbitration Provision applies to disputes that “cannot be resolved through the informal dispute resolution process described in the Agreement.” Certainly, if the informal dispute resolution applies only to certain types of disputes, then those disputes to which it does not apply “cannot be resolved through the informal dispute resolution process.” Thus, the plain meaning of this introductory clause does not limit the Arbitration provision to the types of dispute expressly described in the term outlining the “informal dispute resolution process.” As in Doyle , the “informal dispute resolution process” is merely a suggested option and not a condition precedent to the Arbitration Provision. Id. at 377 , 918 A.2d 1266 . We also note that, as in Doyle , by filing suit, appellant “determined to forgo any attempts at resolving the matter amicably through informal means and filed a complaint against appellee” and has, “in essence” waived his ability to challenge the Arbitration Provision on this ground.

See id. at 377-79 , 918 A.2d 1266 . B. Waiver Appellant argues that appellee waived its right to arbitrate the dispute when it: 1) opposed appellant’s motion for a TRO ¹⁹⁸ without invoking the Arbitration Provision (which appellee conceded might not preclude injunctive relief); 2) filed an alternative motion for summary judgment in conjunction with one of three motions to dismiss; 3) asked the court to instruct the arbitrator to hear appellant’s claims on an individual, rather than class, basis; and 4) sought to remove the case to federal court. The Maryland Arbitration Act “expresses the legislative policy favoring enforcement of agreements to arbitrate.” Cheek v. United Healthcare of the Mid-Atl., Inc., 378 Md. 139, 146 , 835 A.2d 656 (2003) (citations and internal quotation marks omitted); accord Brendsel v. Winchester Constr. Co., 392 Md. 601, 630 , 898 A.2d 472 (2006).

In light of this policy favoring arbitration, we must determine whether a party has waived the right to arbitration. The Court of Appeals held, in Charles J. Frank, Inc. v. Associated Jewish Charities, Inc., 294 Md. 443 , 450 A.2d 1304 (1982), that “[because] the right to arbitrate is a matter of contract, it is possible for parties to waive that right.” Id. at 448 , 450 A.2d 1304 . The Court then extended the general contractual waiver rule to hold that an arbitration agreement is waived by acts “inconsistent with an intention to insist upon enforcing such provisions.” Id. at 449 , 450 A.2d 1304 (citing BarGale Industries,. Inc. v. Robert Realty Co., 275 Md. 638, 643 , 343 A.2d 529 (1975)). “The intention to waive must be clearly established and will not be inferred from equivocal acts or language.” Frank at 449, 450 A.2d 1304 (citing BarGale, 275 Md. at 644 , 343 A.2d 529 ).

Thus, waiver is a question of intent that ordinarily turns on the factual circumstances of each case. Frank at 449, 450 A.2d 1304 . Judge Zarnoch, writing for our Court, recently summarized Maryland case law on intent to waive arbitration: A finding of such a waiver is highly factual and a decision by the circuit court premised on those facts will not be disturbed on appeal unless it is clearly erroneous. On a number of occasions, Maryland appellate courts have addressed the issue of whether the right to arbitrate has ¹⁹⁹ been waived by participation in litigation that is inconsistent with an intent to insist upon enforcing arbitration.

Participation in a judicial proceeding that results in a final judgment may, in certain circumstances, waive the right to arbitrate. Some limited participation in judicial proceedings does not constitute a waiver. Whether an answer directed to the merits is filed is a factor. Participation in extensive discovery is a factor in determining waiver.

However, also relevant is whether a party utilized discovery devices that would not have been available in arbitration. Delay in attempting to compel arbitration, by itself, may not be conclusive, although coupled with prejudice to the other party can support a finding of waiver. The filing of suit can be a significant act in a waiver calculus, and in some instances it perhaps could be dispositive. Nevertheless, if there is a legitimate reason for participating in litigation, it will not be deemed a waiver.

Abramson v. Wildman, 184 Md.App. 189, 200-201 , 964 A.2d 703 (2009) (internal citations and quotation marks omitted). Appellant points to several of appellee’s actions that allegedly waived arbitration. Our discussion analyzes each to determine whether any single act waived arbitration and then tests whether appellant’s entire course of conduct, taken as a whole, manifested its intent to waive arbitration. 1. Appellee’s TRO Opposition First, appellant argues that appellee waived arbitration by 1) opposing appellant’s motion for a TRO without invoking the Arbitration Provision and 2) conceding that the Arbitration Provision might not preclude injunctive relief.

We note, first, that appellant is factually incorrect in that appellee’s TRO opposition expressly invoked and reserved the right to arbitrate even though it recognized that the Arbitration Provision itself permitted appellant to invoke the Court’s jurisdiction for the limited purposes of seeking injunctive relief. Second, appellee’s concession that Maryland law reserves the right to maintain the status quo by injunction was not inconsistent with appellee’s intent to enforce the Arbitra ²⁰⁰ tion Provision. Appellee merely recognized that Maryland law creates a narrow and default exception to the Arbitration Provision and that it had to act to preserve its interests. See The Redemptorists v. Coulthard Servs., 145 Md.App. 116 , 156 n. 9, 801 A.2d 1104 (2002) (non-movant may present evidence to the trial court that a preliminary injunction is warranted); see also Brendsel, 392 Md. 601 , 898 A.2d 472 (movant did not waive arbitration by filing for mechanic’s lien).

Appellee’s TRO opposition, alone, did not waive the Arbitration Provision. 2. Appellee’s Alternative Motion for Summary Judgment Next, appellant relies on a misstatement of federal case law to argue that appellee’s motion for summary judgment waived arbitration. 13 Appellant draws primarily from two federal cases, Fraser v. Merill Lynch Pierce, Fenner & Smith, Inc., 817 F.2d 250 (4th Cir.1987), and Price v. Drexel Burnham Lambert, Inc., 791 F.2d 1156 (5th Cir.1986), to support his assertion that “[a] party filing a motion for summary judgment, seeking a judicial determination on the merits of the action, standing alone, waives arbitration.” This is the holding of neither of these cases, each of which examined a variety of factors and rested its conclusion on an intention manifested by a course of conduct. Moreover, both of these cases specifically state that there are certain pleadings which, alone, do not waive arbitration. The Fraser opinion cites federal precedent that “[n]either delay nor the filing of pleadings by the party seeking a stay will suffice, without more, to establish waiver of arbitration.” 817 F.2d at 252 (citations omitted).

Similarly, the Price court distinguished its case from those in which the movant had filed a “perfunctory motion to dismiss before answering.” 791 F.2d at 1162 . The closest that appellant comes to his sweeping conclusion that a motion for summary judgment suffices to waive arbitration is dicta from Sweater Bee by Banff, Ltd. v. Manhattan Indus., Inc., 754 F.2d 457, 465 (2d Cir.1985), a case that ²⁰¹ ultimately affirmed a trial court’s motion to compel arbitration. Appellant draws his quote from a part of the opinion that rejected the non-movant’s argument that to accept both a motion to compel and a motion to dismiss would disserve judicial economy by encouraging unwarranted motions to dismiss. Id. at 465 .

The Sweater Bee court hypothesized that judicial economy would be preserved because “if matters going outside the pleadings are presented to and not excluded by the court, the motion is, of course, treated as one for summary judgment ..., at which point the effect would be to preclude any arbitration of the issue by virtue of waiver.” Id. To support this (hypothetical) statement, the Sweater Bee court cited Weight Watchers of Quebec, Ltd. v. Weight Watchers Int'l, Inc., 398 F.Supp. 1057 (E.D.N.Y.1975), which held that the movant’s “submission of its summary judgment motion, coupled with its silence on the arbitration issue for nearly two years from the institution of the action, must be viewed as an unequivocal expression of intent to seek a judicial determination of the merits of this action rather than arbitration.” Id. at 1060 . Thus, a thorough examination of appellant’s citations returns us to a rule substantially similar to Maryland’s comprehensive factual examination, and we find no support for appellant’s contention that a motion for summary judgment, without more, waives arbitration. 14 Even if we overlook appellant’s misstatement of the rules of Fraser, Price, and Weight Watchers (by way of Sweater Bee ), the movant in each of those cases did much more than simply file for summary judgment. The movant in Fraser was adjudged to have waived arbitration because, over the course of ²⁰² five years, it engaged in extensive litigation, including an answer, counterclaim, at least thirty-five depositions, four discovery motions, two motions in limine, one motion for partial summary judgment, and three motions to dismiss. 817 F.2d at 251 .

Only then, five years from the initial complaint, did the movant seek to compel arbitration. Id. Similarly, the Price court specifically noted that the movant had “initiated extensive discovery, answered twice, filed motions to dismiss and for summary judgment, filed and obtained two extensions of pre-trial deadlines, all without demanding arbitration[,]” all while imposing a seventeen-month delay and causing disclosures. 791 F.2d at 1159 . Here, appellee immediately raised and reserved its right to arbitrate, filing motions to compel arbitration with each of its motions to dismiss and its alternative motion for summary judgment.

The proceedings in trial court here involved nothing close to the amount of litigation in the aforementioned cases, and they therefore do not control our decision. 15 Having established that a motion for summary judgment does not necessarily waive arbitration, the legal possibility remains that a motion for summary judgment could waive arbitration. In this case, it did not. Appellee’s motion .for summary judgment is strikingly similar to the pleadings in The Redemptorists , which we held did not waive arbitration. The plaintiffs in that case opposed arbitration, arguing that the defendant’s “act of attaching [a] certification to its motion to dismiss for lack of jurisdiction transformed that motion into a motion for summary judgment and, as such, catapulted [Coulthard] into the judicial forum, resulting in waiver of any right to arbitrate the claims against it.” 16 145 Md.App. at 143 , 801 A.2d 1104 .

We rejected that argument, stating, id.: ²⁰³ We do not consider the act of filing a motion to dismiss on a jurisdictional ground to be an unequivocal demonstration ... that [the movant] intended to waive its right to arbitrate the claims against it, and to participate instead in a judicial forum. [The] motion did not address the merits of the claims in the initial complaint. It was limited to what it perceived as a procedural flaw in the complaint that, if meritorious, could have disposed of the court’s jurisdiction to consider the complaint. Here, appellee’s motion to dismiss relied upon a single document outside of the pleadings—a certificate issued by the Maryland Public Service Commission—in order to argue that appellee was expressly exempted by the very statute giving rise to appellant’s claims. 17 According to Rule 2-322(c), if the court had considered it necessary to refer to that attached document, appellee’s motion to dismiss automatically would have been treated as a motion for summary judgment, subject to the procedures of Maryland Rule 2-501. Appellee’s motion was, as in The Redemptonsts, “limited to ... a procedural flaw in the complaint that, if meritorious, could have disposed of the court’s jurisdiction to consider the complaint.” 145 Md.App. at 148 , 801 A.2d 1104 .

Our decision leaves open the possibility that a summary judgment motion could waive arbitration, but it would have to address the essential merits of the case and result in something approaching the “voluminously documented defense” cited in Weight Watchers, 398 F.Supp. at 1061 . This was not so here, and appellee’s motion for ²⁰⁴ summary judgment did not evidence an