85, 123 S.Ct. 588. II Let me add that I find the majority’s treatment of Brown v. Dillard’s, Inc., 430 F.3d 1004 (9th Cir.2005), to be problematic and I would not reach it. If I, rather than the arbitrator, were to reach the question of whether or not arbitration was properly invoked, however, I would reluctantly conclude that Bromi controls this case. In my view, there is simply no principled difference between the holding that Ms. Brown properly invoked arbitration in Brown and the district court’s finding that Mr. Cox properly invoked arbitration here. 1 . Such approach is correct notwithstanding the majority's citation to out of circuit cases considering waiver based on extensive participation in litigation. See, e.g., Khan v. Parsons Global Servs., 521 F.3d 421, 428 (D.C.Cir.2008) (<HOLDING>); In re Tyco Int’l Ltd. Sec. Litig., 422 F.3d
holding that parsons waived right to compel arbitration by filing a motion for summary judgment based on matters outside of the pleadings holding that district courts consideration of matters outside the pleadings converted the defendants rule 12 motion into one for summary judgment holding that a rule 12b6 motion is only converted to a motion for summary judgment when a court accepts and considers matters outside of the pleadings holding that by considering matters outside of the pleadings the trial court converted a rule 12b6 motion to dismiss into a summary judgment motion holding that a trial court entered judgment on the pleadings where the decision did not depend on any document outside the pleadings