In Kindig v Whole Foods Market, (Sept. 20, 2011), Marion Kindig sued the defendant, Whole Foods Market, alleging that she was injured in its parking facility. Whole Foods then filed a third party complaint against USA Parking, who operated the parking facility, for indemnification and contribution. USA Parking moved to dismiss based on the arbitration clause "covering all disputes rising under" the agreement between USA Parking and Whole Foods.

The District Court for the District of Columbia first addressed the motion to dismiss as to Whole Foods. In deciding whether to dismiss and compel arbitration, the court looked to section 3 of the Federal Arbitration Act (FAA), which the parties explicitly agreed governed interpretation and enforcement of the agreement. Since the parties did not dispute that an arbitration agreement existed, the court only needed to decide whether the indemnification and contribution claims in the third party complaint were within the scope of their agreement.

In its opposition to the motion to dismiss, Whole Foods argued that no dispute had arisen between Whole Foods and USA Parking, so the contribution and indemnification claims could not be arbitrable. The court rejected this argument based on the litigation stances of the parties about the extent of contribution and indemnification required. It then found that because the agreement contained an indemnification clause, any dispute over the indemnification clause was within the scope of the arbitration agreement. The court also found that the dispute over contribution was a dispute over whether USA Parking fulfilled its duties within the agreement, making the contribution claim also within the scope of the agreement. The dispute between Whole Foods and USA Parking was arbitrable, and so section 3 of the FAA required the court to stay proceedings for the indemnification and contribution claims.

The court then addressed the motion to dismiss as to Kindig, who was not a party to the arbitration agreement. Whole Foods argued that Kindig's claims, the underlying cause of action for the contribution and indemnification claims, should be stayed until the arbitration was concluded. The court rejected this argument because the FAA's requirement that a mandatory stay be imposed on the court action was only applicable to those claims that were arbitrable. Kindig's claims were not arbitrable as she was not a party to the arbitration agreement. Therefore, it was within the court's discretion to determine whether to stay Kindig's claims until the arbitrable claims were resolved.

The court decided not to stay Kindig's claims because her claims had to be resolved by the court and, since it was unknown how long the arbitration would last, a stay would not promote "efficient and timely judicial resolution of matters." Further, the outcome of the arbitration between USA Parking and Whole Foods could not dispose of Kindig's claims, so staying her claims while the arbitration proceeded would only result in delaying any resolution.

This case is an example of how litigation and arbitration can proceed simultaneously when a dispute involves parties that have not contracted to arbitrate. It also shows the discretion that courts have in determining whether to allow litigation to proceed, as opposed to rules providing when they must compel arbitration.