Ilva (USA), Inc. v. Alexander's Daring M/V ( 1993 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 93-3541
USDC No. CA-92-2196-G-5
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ILVA (USA), INC.,
Plaintiff-Appellant,
versus
ALEXANDER'S DARING M/V, its
engines, tackle, radios,
furniture, fixtures, gear,
apparel, appurtenances, ETC.,
ET AL.,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Eastern District of Louisiana
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(November 10, 1993)
Before SMITH, WIENER, and EMILIO M. GARZA, Circuit Judges.
BY THE COURT:
Ilva (USA) appeals an order staying its damages action
pending arbitration. Appellees Thermaikos Navigation Co., Ltd.,
Alexander's Daring, Ltd., Alexco Shipmanagement (Hellas), Ltd.,
and Sidermar Di Navagazione SpA have moved to dismiss the appeal
for lack of jurisdiction under 9 U.S.C. § 16(b) and McDermott
Int'l., Inc. v. Underwriters at Lloyds, 981 F.2d 744 (5th Cir.),
cert. denied, 113 S. Ct. 2442 (1993).
Ilva concedes that under 9 U.S.C. § 16(b), an interlocutory
order granting a stay pending arbitration is not an appealable
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order. See McDermott, 981 F.2d at 747. Ilva contends, however,
that because it waived its right to arbitration in its notice of
appeal, it is subject to having its claims against appellees
dismissed with prejudice. Therefore, Ilva maintains the district
court's order is final and appealable under 28 U.S.C.
§ 1292(a)(3).
We reject this argument. "An order is considered final if
it `ends the litigation on the merits and leaves nothing for the
court to do but execute the judgment.'" McDermott, 981 F.2d at
747 (quoting Catlin v. United States, 324 U.S. 229, 233, 65 S.
Ct. 631, 89 L. Ed 911 (1945)). In determining whether an order
affecting arbitration is final or interlocutory, most courts
distinguish between arbitration actions that are "independent"
and those that are "embedded" among other claims. Generally, if
the only issue before the court is the dispute's arbitrability,
the action is considered independent and a court's decision on
that issue constitutes a final decision. If, however, the case
includes other claims for relief, an arbitrability ruling does
not "end the litigation on the merits", but is considered
interlocutory only.
Id. (citations omitted).
Here, the district court's order does not end the litigation
on the merits and is not a final order, despite Ilva's waiver of
its arbitration rights in the notice of appeal. The arbitration
issue arose in the context of Ilva's damages action against
appellees and I.T.O. Corp. The claim against I.T.O. is pending
in the district court, and must be resolved regardless of the
outcome of the arbitration. Further, there has been no judgment
entered on the claims against the appellees.
State Establishment for Agric. Prod. Trading v. M/V
WESERMUNDE, 838 F.2d 1576 (11th Cir.), cert. denied, 488 U.S. 916
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No. 93-3541
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(1988), provides no support for Ilva's argument that we should
construe the district court's order as final because of the
waiver. That appeal of an order compelling arbitration did not
go forward until the district court dismissed the action with
prejudice for State Establishment's failure to prosecute. Id. at
1579. There has been no similar final order in this case. Ilva
may pursue in the district court the remedies outlined in State
Establishment. Id. at 1582-83.
Accordingly, the appeal is DISMISSED.