Summary
noting that petitioner could seek to hold respondent in contempt if andwhen respondent failed to "submit to arbitration within the 90 day deadline"
Summary of this case from GENERAL TEAMSTERS UN L. NO. 439 v. SUNRISE SANITATION SERVOpinion
No C-00-4472 VRW
May 16, 2001
ORDER
On April 27, 2001, the court granted Lifescan's petition to compel arbitration pursuant to 9 U.S.C. ¶ 4. Order (Doc #25). Currently before the court is a motion filed by Premier in which it essentially seeks clarification with respect to the finality of the order or, in the alternative, a certificate of appealability as an interlocutory order under 28 U.S.C. ¶ 1292(b).
In granting Lifescan's petition to compel arbitration, the court directed Premier to submit to arbitration before the American Arbitration Association within 90 days of the date of the order. Order (Doc #25) at 6. As Premier points out, the court further stated that "[i]n the event Premier fails to comply with this order, Lifescan may seek appropriate relief." Id.
Contrary to Premier's assertion, however, this latter statement did not have the effect of retaining jurisdiction with the court. The order compelling Premier to submit to arbitration was final and appealable pursuant to 9 U.S.C. ¶ 16. See Smith v The Equitable, 209 F.3d 268, 271 (3d Cir 2000); see generally Green Tree Financial Corp-Alabama v Randolph, 531 U.S. 79 (2000). The sole purpose of this action was to compel arbitration under 9 U.S.C. ¶ 4. Such proceedings "arise independently of any other lawsuit, and the District Court's resulting order is immediately appealable as the final relief sought." Smith, 209 F.3d at 271. "If arbitration has been ordered, the objecting party need not await the outcome of the arbitration before challenging the order to arbitrate." Id (citing Filanto, SpA v Chilewich Int'l Corp, 984 F.2d 58, 60 (2d Cir 1993)). By contrast, an order to arbitrate embedded in an action that seeks additional relief is interlocutory. Smith, 209 F.3d at 271.
Should Premier not submit to arbitration within the 90 day deadline, Lifescan's options will depend on the procedural posture of the case. Lifescan may request that this court find Premier in contempt of court for failing to comply with the April 27, 2001, order, unless Premier has appealed the matter and obtained a stay pending appeal pursuant to FRCP 62(d).
Given the court's conclusion that the order compelling arbitration was final, Premier's alternative request for a certificate of appealability under 28 U.S.C. ¶ 1292(b) is moot.
If the clerk has not already done so, the clerk is directed to close the file.