Green v. Service Corp. International , 236 F. App'x 898 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 30, 2007
Charles R. Fulbruge III
Clerk
No. 06-20732
PHILIP W. GREEN,
Plaintiff-Appellant,
versus
SERVICE CORPORATION INTERNATIONAL,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Texas
(06-CV-833)
Before GARWOOD, BARKSDALE and GARZA, Circuit Judges.
GARWOOD, Circuit Judge:*
Plaintiff-appellant Philip Green brought this suit in the
court below against defendant-appellee Service Corporation
International (“SCI”), seeking actual and punitive damages for its
alleged action in terminating (or causing the termination of) his
*
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opinion should not be published and is not precedent except under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.
employment, contrary to the whistleblower employee protection
provisions of the Sarbanes-Oxley Act of 2002, 18 U.S.C. § 1514A.
SCI answered, and, inter alia, denied that it violated the
Sarbanes-Oxley Act, and alleged that, under a written agreement
between it and Green, Green was bound to arbitrate his claims
against it. SCI also moved, pursuant to sections 3 and 4 of the
Federal Arbitration Act (FAA), 9 U.S.C. §§ 3 and 4, that the
instant action be entirely stayed pending arbitration of Green’s
claims and that the court order Green to arbitrate same. Green
responded by, inter alia, resisting arbitration, raising certain
challenges respecting the arbitration agreement, and claiming that
SCI had waived any right to insist on arbitration of the dispute.
Green further requested that, should SCI’s motion be granted, the
case be dismissed rather than stayed.
By its June 30, 2006 four page order the district court found
that the parties had agreed in writing to arbitrate a class of
disputes including those raised in this suit and that SCI had not
waived arbitration, and consequently it granted SCI’s motion to
stay and compel, expressly denied Green’s request “that this case
be dismissed rather than stayed,” “ORDERED” that “the parties shall
resolve their dispute through binding arbitration according to the
agreement,” and “ORDERED that the case is hereby STAYED and
ADMINISTRATIVELY CLOSED pending a motion by either party for
further judicial intervention.”
2
Green timely moved for reconsideration and SCI moved to
enforce the court’s June 30, 2006 order compelling arbitration. On
August 17, 2006, the district court, in a two page order, denied
Green’s motion to reconsider. On August 18, 2006, the district
court granted SCI’s motion to enforce, ordering that Green “either
(1)” within 14 days begin the arbitration process pursuant to the
arbitration agreement and expeditiously continue it in good faith
to final resolution, “or (2) in the alternative, to face dismissal
with prejudice of his claims against SCI.”
The following day Green gave timely notice of appeal.
On appeal, Green asserts that the district court erred in
staying the case pending arbitration, and in ordering the parties
to arbitrate, because no agreement between the parties provided for
arbitration and because SCI defaulted and waived any right to
arbitration. SCI asserts, inter alia, that under section 16(b) of
the FAA, 9 U.S.C. § 16(b), this court has no jurisdiction of this
appeal.
The case in the district court has not been dismissed and it
remains pending in that court; there is no other pending suit
between the parties and no other action has been stayed or
enjoined.
We dismiss the appeal for want of jurisdiction under section
16(b). This result is clearly mandated by Mire v. Full Spectrum
Lending, Inc., 389 F.3d 163, 165-67 (5th Cir. 2004); Apache Bohai
3
Corp., LDC v. Texaco China, B.V., 330 F.3d 307, 309-10 (5th Cir.
2003). See also, e.g., Terrebonne v. K-Sea Transportation Corp.,
477 F.3d 271, 277 n.9 (5th Cir. 2007); CitiFinancial Corp. v.
Harrison, 453 F.3d 245, 250 (5th Cir. 2006).
The appeal is accordingly
DISMISSED FOR WANT OF JURISDICTION.
4