had evinced an intent to waive arbitration. See Morewitz, 62 F.3d at 1366. Here, on the other hand, Braun instigated litigation against AA based on a separate confidentiality agreement between Braun and AA. Braun never named Ivax as a party, nor did Ivax in any way participate in that litigation. Because Braun and AA had no agreement to arbitrate, the only way for Braun to recover from AA was to sue. The only other cases before us that have involved waiver based on litigation activity have dealt entirely with litigation between the parties to the arbitration agreement. In each case, we held that the party engaging in litigation against the other party clearly appeared to forego arbitration, and instead sought to resolve the dispute in court. See S & H Contractors, 906 F.2d at 1514 (<HOLDING>); E.C. Ernst, Inc. v. Manhattan Constr. Co.,
holding that the party demanding arbitration had waived its right to arbitrate by filing eight months earlier a complaint against the other party to the arbitration agreement holding that purpose of stay pending arbitration is twofold it relieves the party entitled to arbitrate of the burden of continuing to litigate the issue while the arbitration process is ongoing and it entitles that party to proceed immediately to arbitration without the delay that would be occasioned by an appeal of the district courts order to arbitrate holding that party waived arbitration by filing multiple lawsuits holding that a party that engages in protracted litigation waives his right to arbitrate when an order compelling arbitration would result in prejudice to the party opposing arbitration holding that the party did not waive its right to enforce the arbitration clause