Positive Software Solutions, Inc. v. New Century Mortgage Corp. , 90 F. App'x 728 ( 2004 )


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  •                                                                                   United States Court of Appeals
    Fifth Circuit
    F I L E D
    February 10, 2004
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    Charles R. Fulbruge III
    Clerk
    __________________________
    No. 03-10585
    __________________________
    POSITIVE SOFTWARE SOLUTIONS, INC.,
    Plaintiff - Appellee,
    versus
    NEW CENTURY MORTGAGE CORP., et al.,
    Defendants - Appellants.
    ___________________________________________________
    Appeal from the United States District Court
    For the Northern District of Texas
    (No. 3:03-CV-257)
    ___________________________________________________
    Before EMILIO M. GARZA, DeMOSS, and CLEMENT, Circuit Judges.
    EDITH BROWN CLEMENT, Circuit Judge:*
    Positive Software Solutions, Inc. (“Positive”) offers two arguments for this Court to exercise
    jurisdiction. Both fail. Positive first argues that this Court has jurisdiction under 28 U.S.C. §
    1292(a)(1). The district court, Po sitive contends, refused its motion for an injunction. Section
    1292(a)(1) pro vides—among other things—that courts of appeals shall have jurisdiction over
    *
    Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be
    published and is not precedent except under the limited circumstances set forth in 5TH CIR.
    R. 47.5.4.
    1
    interlocutory orders “refusing . . . injunctions . . . .” 28 U.S.C. § 1292(a)(1). To determine whether
    an order is refusing an injunction, this Court examines whether the district court specifically denied
    the injunctive relief. E.E.O.C. v. Kerrville Bus Co., Inc., 
    925 F.2d 129
    , 132 (5th Cir. 1991). Where
    a district court fails to specifically state that it is denying injunctive relief, “there must be some
    additional, substantial indication—whether from the language of the order, or the grounds on which
    it rests, or the circumstances in which it was entered—that the district court was acting specifically
    to deny injunctive relief.” 
    Id. Here, the
    district court did not specifically deny Positive injunctive relief. Instead, the court
    sent the matter to arbitration, noting that the arbitrator had authority to grant injunctive relief.
    Deferring the injunction issue to arbitration does not satisfy the Kerrville standard of showing that
    the district court was “acting specifically to deny injunctive relief.” Accordingly, jurisdiction is
    lacking under § 1292(a)(1).1
    Positive next argues that jurisdiction is proper because Positive seeks legal damages. This
    argument is without merit. Section 16 of Title 9 prohibits an appeal from interlocutory orders
    (1) granting a stay of any action under [ 9 U.S.C. § 3];
    (2) directing arbitration to proceed under [9 U.S.C. § 4; and]
    (3) compelling arbitration under [9 U.S.C. § 206] . . . .
    9 U.S.C. § 16(b). This Court has interpreted this provision to mean that a district court’s order to
    stay proceedings pending arbitration is not appealable unless the order is certified. Turboff v. Merrill
    Lynch, Pierce, Fenner & Smith, Inc., 
    867 F.2d 1518
    , 1519-21 (5th Cir. 1989). This rule applies even
    if the order compelling arbitration concerns an action at law. 
    Id. Because the
    district court here did
    1
    Finding a lack of jurisdiction under the injunctive-relief issue disposes of any issues
    “inextricably intertwined” with it.
    2
    not certify its order, this Court cannot consider whether the district court properly sent the matter to
    arbitration until the district court enters a final judgment.
    We therefore DISMISS this appeal without prejudice for lack of jurisdiction.2
    2
    As this Court lacks jurisdiction to hear this appeal, we need not rule on Positive’s motion
    to supplement the record because the issue is moot.
    3
    

Document Info

Docket Number: 03-10585

Citation Numbers: 90 F. App'x 728

Judges: Clement, DeMOSS, Emilio, Garza

Filed Date: 2/10/2004

Precedential Status: Non-Precedential

Modified Date: 8/1/2023